An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1564

Filed: 2 August 2005


         v.                        Wake County
                                Nos. 03 CRS 39456-58

    Appeal by defendant from judgment entered 6 May 2004 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 25 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State.

    Paul T. Cleavenger for defendant-appellant.

    LEVINSON, Judge.

    On 4 August 2003, the Wake County grand jury indicted defendant on charges of trafficking in cocaine by selling and delivering 28 grams or more but less than 200 grams of cocaine, trafficking in cocaine by possessing 200 grams or more but less than 400 grams of cocaine , and conspiracy to traffic in cocaine by possessing 200 grams or more but less than 400 grams of cocaine. At trial, the State presented evidence tending to show the following:
    Anthony Stout (Stout) testified that he was arrested on 25 March 2003 after he sold two ounces of cocaine to an undercover officer. He stated that for approximately a year he had made weekly purchases of one to two ounces of cocaine from Zulema Anida Eusebio (defendant) and Emilio Arsenio Miranda-Acevedo (Arsenio) . The purchases occurred either at Stout's workplace or the apartment of defendant and Arsenio . Both defendant and Arsenio were present for most of the transactions , and defendant would do the majority of the talking and would act as an interpreter for Arsenio. Stout stated that defendant had bartered most of the deals. On approximately four occasions, Stout made purchases from only defendant at his workplace. On some occasions when Stout made purchases at the apartment, only defendant was present for the transaction.
    Following his arrest on 25 March 2003, Stout agreed to cooperate with officers in hopes of avoiding an active sentence for the charges against him. At the request of officers, Stout made ten cocaine purchases from defendant and Arsenio . On 15 May 2003, Stout called defendant and Arsenio to arrange for the purchase of two ounces of cocaine. When he arrived at their apartment, both defendant and Arsenio were there. Stout entered the kitchen, and Arsenio removed eight ounces of cocaine from a cabinet and placed it on the kitchen counter. Stout said defendant and Arsenio argued with each other and with him regarding whether he owed them more money. After paying for the cocaine, Stout left the apartment. He said defendant was in the room during the entire transaction.
    Later that same evening, Sergeant Brad Kennon and at least three detectives searched the apartment pursuant to a search warrant. Sergeant Kennon testified that only defendant and Arsenio lived in the apartment and that their personal belongings werethere. The officers found approximately six ounces of cocaine in a paper bag on the kitchen counter during their search. After the discovery of the cocaine in the kitchen, defendant indicated to officers that she and Arsenio wanted to cooperate as a couple. She spoke with Arsenio, and he placed several calls in an attempt to have a delivery made to the apartment either from the man who was the source of their cocaine or from other individuals. Because no one would agree to deliver any cocaine to the apartment that evening, Arsenio's calls were unsuccessful.
    Sergeant Kevin Carswell testified that Stout was wearing a transmitter when he conducted the transaction with defendant and Arsenio on 15 May 2003. He heard Stout talking to defendant, and he heard her interpreting in Spanish for a second individual. Sergeant Carswell found passport or visa-type documents in the apartment which identified defendant and her husband Arsenio. Officers submitted the cocaine purchased by Stout and the cocaine seized from the apartment to the Wake County Bureau of Identification laboratory for testing. Agent Amy Bommer, a forensic drug chemist, testified that the substance purchased by Stout was 63.1 grams of cocaine and that the contraband seized by officers during the search of the apartment was 147.2 grams of cocaine.
    Defendant testified through an interpreter that Arsenio was her husband and that he had met with Stout on a number of occasions. She denied interpreting for Arsenio when he met with Stout. Defendant admitted going to Stout's workplace twice andbeing given a sealed envelope by Stout each time. She knew the envelopes contained money, but Arsenio told her that the money was for the purchase of fabric to upholster some furniture for Stout.
    Defendant said she was unaware of any cocaine in their apartment until police discovered it during the search of her kitchen. During the course of her testimony, defendant initially denied being in the apartment with Stout and Arsenio on 15 May 2003, explaining that she was waiting outside in a car for five to ten minutes while Stout was speaking with Arsenio in the apartment. She and Arsenio were going to go shopping. Defendant subsequently testified she went into the apartment for two or three minutes to use the bathroom and to rush Arsenio because she was concerned that the store would close. She asserted that she did not speak English, that she had never translated for her husband, and that she had never put her hands on drugs.
    After receiving the trial court's instructions, the jury deliberated and found defendant guilty of all three charges. The trial court consolidated the convictions for judgment and sentenced defendant to a term of 70 to 84 months imprisonment. From the trial court's judgment, defendant appeals.
    Defendant contends the trial court erred by denying her motion to dismiss the charge of conspiracy to traffic in cocaine by possession. She argues there was no evidence that she conspired with Arsenio to possess the cocaine. Defendant asserts that the evidence presented only shows she had knowledge of the existence of the cocaine. Her argument is without merit.    When ruling on a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State; the State is entitled to every reasonable inference which can be drawn from the evidence presented, and all contradictions and discrepancies are resolved in the State's favor. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). If there is substantial evidence that the charged offense was committed and that the defendant committed the offense, a trial court should deny a motion to dismiss and submit the charge to the jury . State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975).
     A criminal conspiracy is an agreement, express or implied, between two or more persons to do an unlawful act . . . , and a conspiracy generally is established by a number of indefinite acts, which taken collectively point to the existence of a conspiracy.” State v. Burmeister, 131 N.C. App. 190, 199, 506 S.E.2d 278, 283 (1998) (citations omitted). In order to prove defendant guilty of conspiracy to traffic in cocaine, the State must show that defendant entered into an agreement with one or more persons to traffic by possessing cocaine weighing at least 200 grams but less than 400 grams, and intended the agreement to be carried out at the time it was made. See State v. Diaz, 155 N.C. App. 307, 319, 575 S.E.2d 523, 531 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003); see also N.C.G.S. § 90-95(h)(3)(a) (2003). The State was not required to show an express agreement to traffic in order to prove conspiracy, for “evidence tending to show a mutual, implied understanding will suffice.” State v. Morgan 329 N.C. 654, 658,406 S.E.2d 833, 835 (1991).
     When the evidence is viewed in the light most favorable to the State, defendant delivered cocaine to Stout at his workplace on two occasions and collected payment for the cocaine. She translated for Arsenio and bartered several of the transactions between Arsenio and Stout. Defendant sold cocaine to Stout at the apartment on occasions when Arsenio was not present. She was standing next to Arsenio when he removed eight ounces of cocaine from a cabinet in their kitchen and placed it on a counter during the transaction with Stout on 15 May 2003, and she translated for Arsenio during that transaction with Stout. This evidence was sufficient for the trial court to submit the charge of conspiracy to traffic in cocaine by possession to the jury. A reasonable juror could infer from defendant's actions during the various transactions with Stout that she had entered into an agreement with Arsenio to traffic by possessing cocaine weighing at least 200 grams but less than 400 grams and that she intended the agreement to be carried out at the time it was made. The trial court therefore did not err by denying defendant's motion to dismiss the conspiracy charge and by submitting the offense to the jury.
    No error.
    Judges MCGEE and HUDSON concur.
    Report per Rule 30(e).

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