Appeal by defendants from judgments entered 17 September 2004
by Judge Michael E. Helms in Guilford County Superior Court. Heard
in the Court of Appeals 7 December 2005.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Kathryn Jones Cooper, and Assistant Attorneys
General Donald W. Laton and Allison S. Corum, for the State.
Jarvis John Edgerton, IV for defendant-appellant Jaime Lopez,
aka Jardiel Alvarez.
George E. Kelly, III for defendant-appellant Johnny Ahabrehan
Sanchez, aka Genario Holgin.
HUNTER, Judge.
Jaime Lopez, aka Jardiel Alvarez (“Lopez”), and Johnny
Ahabrehan Sanchez, aka Genario Holgin (“Sanchez”), appeal from
judgments entered 17 September 2004 consistent with jury verdicts
for trafficking in heroin and conspiracy to traffic. For the
reasons stated herein, we grant a new trial as to Lopez, but find
no error as to Sanchez.
The State's evidence tends to show that on 15 September 2003,
an employee of Overnite Trucking (“Overnite”), a freight company,
contacted Detective J. M. Ferrell (“Detective Ferrell”), a High
Point police detective and drug enforcement agent, regarding
suspicious freight that had arrived. Detective Ferrell went to
Overnite's loading docks and investigated the package. The
package, a small refrigerator, had been shipped from a location in
California near the Mexican border. Detective Ferrell testified
that the package appeared suspicious because the shipping location
was known as a high narcotics area, an unusually high shipping cost
was listed on the label, and the package had been dropped off for
shipping rather than picked up at a verifiable address.
Overnite granted Detective Ferrell permission to remove the
box to perform a narcotics detection dog sniff. The dog alerted to
the package, indicating that there were narcotics in the container.
A search warrant was obtained. When searched, the package revealed
a small refrigerator containing two bundles packaged in a mannerthat suggested they contained narcotics. A controlled delivery to
the shipping address was arranged.
The package was delivered to 7654 Jackson School Road, Brown
Summit, North Carolina. Detective Ferrell posed as a trucking
company worker and delivered the package to Lopez, the addressee on
the carton. Lopez paid Detective Ferrell for the delivery after it
was placed in the living room.
Approximately ten minutes after the delivery was complete, law
enforcement officers executed a previously obtained search warrant.
Along with other co-defendants, Lopez and Sanchez were standing
outside the house near a vehicle with a hidden compartment, and
were handcuffed and taken into the house. The officers discovered
that the shipping carton had been opened, the small refrigerator
removed, and the enclosed bundles laid on top of the refrigerator.
The refrigerator and bundles were dusted for latent prints.
Prints were found on both the right and left sides of the
refrigerator. An analysis of the prints showed that those taken
from the left side of the refrigerator matched Lopez's prints, and
the prints from the right side of the refrigerator matched
Sanchez's prints. An examination of the bundles revealed a heroin
mixture weighing 1,985 grams.
Lopez testified at trial that he did not know the refrigerator
contained heroin, and that he had been hired by a man named “Eric”
to check on the house at 7654 Jackson School Road and receive the
appliance delivery. Lopez stated that he had received a delivery
at that address for “Eric” on a previous occasion. Lopez statedthat he did not open the box or refrigerator, and did not see the
heroin until it was presented as evidence at trial. Sanchez did
not testify at trial.
The jury found both Lopez and Sanchez guilty of trafficking by
possessing more than twenty-eight grams of heroin and conspiracy to
traffic by possessing more than twenty-eight grams of heroin.
Lopez and Sanchez were each sentenced to consecutive sentences of
225 to 279 months respectively. Lopez and Sanchez appeal together
from their respective judgments.
I.
[1] Lopez and Sanchez first contend the trial court erred in
denying their motions to dismiss all charges for insufficient
evidence. We disagree.
“'Upon defendant's motion for dismissal, the question for the
Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant's being the perpetrator of
such offense. If so, the motion is properly denied.'”
State v.
Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation
omitted). “Substantial evidence is evidence from which any
rational trier of fact could find the fact to be proved beyond a
reasonable doubt.”
State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d
396, 399 (1986). “The State may meet this burden by either direct
or circumstantial evidence. The law makes no distinction between
the weight to be accorded to direct or circumstantial evidence.”
State v. Jenkins, 167 N.C. App. 696, 699, 606 S.E.2d 430, 432,
percuriam affirmed, 359 N.C. 423, 611 S.E.2d 833 (2005). “In
reviewing challenges to the sufficiency of evidence, we must view
the evidence in the light most favorable to the State, giving the
State the benefit of all reasonable inferences.”
Barnes, 334 N.C.
at 75, 430 S.E.2d at 918.
The crime of trafficking in heroin “has two elements: (1)
knowing possession (either actual or constructive) of (2) a
specified amount of heroin.”
State v. Keys, 87 N.C. App. 349, 352,
361 S.E.2d 286, 288 (1987). The crime of conspiracy “involves an
agreement of two or more persons to do an unlawful act or to do a
lawful act by unlawful means.”
State v. Diaz, 155 N.C. App. 307,
319, 575 S.E.2d 523, 531 (2002). Lopez contends that insufficient
evidence was presented to show that he knowingly possessed heroin,
and Sanchez contends that insufficient evidence was presented to
show constructive possession of heroin.
“Knowledge may be shown even where the defendant's possession
of the illegal substance is merely constructive rather than
actual.”
State v. Crudup, 157 N.C. App. 657, 662, 580 S.E.2d 21,
26 (2003). “Constructive possession exists when the defendant,
'while not having actual possession, . . . has the intent and
capability to maintain control and dominion over' the narcotics.”
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001)
(citation omitted). “'Where such materials are found on the
premises under the control of an accused, this fact, in and of
itself, gives rise to an inference of knowledge and possession
which may be sufficient to carry the case to the jury on a chargeof unlawful possession.'”
Id. at 552, 556 S.E.2d at 270-71
(citation omitted). “'However, unless the person has exclusive
possession of the place where the narcotics are found, the State
must show other incriminating circumstances before constructive
possession may be inferred.'”
Id. at 552, 556 S.E.2d at 271
(citation omitted).
Here, the evidence, when taken in the light most favorable to
the State, shows that the refrigerator containing nearly 2,000
grams of heroin was addressed for delivery to and was received by
Lopez. Prior to the entry of the police, the evidence shows that
Lopez and Sanchez removed the packaging from the refrigerator, and
that its contents, the packaged heroin, were emptied onto the top
of the refrigerator. Lopez and Sanchez then exited the house to
stand with two other men near Lopez's vehicle, which contained a
hidden compartment. Although neither Lopez nor Sanchez had
exclusive control of the premises, when taken in the light most
favorable to the State, sufficient other incriminating
circumstances were shown to provide evidence of knowledge and
constructive possession sufficient to survive a motion to dismiss.
This assignment of error is overruled.
II.
[2] Sanchez next contends the trial court committed plain
error in omitting an element in its jury instruction for the charge
of conspiracy. We disagree.
We first note that Sanchez did not object to the jury
instructions at trial, and therefore failed to preserve this issuefor review. N.C.R. App. P. 10(b)(2). Sanchez requests, however,
that the Court review this issue for plain error. “[P]lain error
. . . is error 'so fundamental as to amount to a miscarriage of
justice or which probably resulted in the jury reaching a different
verdict than it otherwise would have reached.'”
State v. Parker,
350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citations omitted).
Here, Sanchez asserts that the trial court failed to name the
crime alleged to be the object of the conspiracy. However a review
of the jury instructions reveals that the trial court specifically
instructed the jury that in order to find Sanchez guilty of
conspiracy, the State must prove beyond a reasonable doubt that
“the agreement was to commit the offense of trafficking in a
controlled substance of more than twenty-eight grams of heroin.”
As the trial court specifically named the crimes alleged to be the
object of the conspiracy, we find this assignment of error to be
without merit.
III.
[3] Lopez next contends that the trial court erred in failing
to instruct the jury that it must find Lopez knew he possessed
heroin in order to convict him of trafficking. Sanchez contends
that the trial court committed plain error in failing to give the
same instruction. Although we agree the failure to give the
instruction requested by Lopez was error entitling him to a new
trial, with respect to Sanchez, we do not find that the failure to
give the instruction rises to the level of plain error. The case of
State v. Boone, 310 N.C. 284, 311 S.E.2d 552
(1984), provides the basis for Lopez's requested pattern jury
instruction. In
Boone, the defendant was charged with possession
of marijuana after two duffle bags of marijuana were found in the
trunk of the defendant's automobile.
Id. at 286, 311 S.E.2d at
554. The defendant admitted that the duffle bags were found in his
automobile, but denied all knowledge of the contents of the duffle
bags, which he alleged belonged to a passenger.
Id. at 293-94, 311
S.E.2d at 558-59. The trial court instructed the jury according to
the pattern jury instructions existing at that time, stating:
“Now, Ladies and Gentlemen of the Jury, I
charge that for you to find the defendant
guilty of possessing marijuana, a controlled
substance with the intent to sell and/or
deliver it, the State must prove two things
beyond a reasonable doubt. First, that the
defendant knowingly possessed marijuana.
And
the defendant, and in that connection, the
defendant knew or had reason to know that what
he possessed was marijuana and marijuana is a
controlled substance. (Emphasis added.)”
Id. at 291, 311 S.E.2d at 557. The defendant contended that the
instruction, which was allegedly based on the case of
State v.
Stacy, 19 N.C. App. 35, 197 S.E.2d 881 (1973), was not supported by
case law, and our Supreme Court agreed. The Court found that
Stacy
had rejected an instruction similar to the one given in
Boone, and
had instead held that under the evidence in that case, “'the court
should have instructed the jury that the defendant is guilty only
in the event he knew the package contained heroin and that if he
was ignorant of that fact, and the jury should so find, they should
return a verdict of not guilty.'”
Boone, 310 N.C. at 291, 311S.E.2d at 557 (quoting
Stacy, 19 N.C. App. at 38, 197 S.E.2d at
882-83).
The Supreme Court then looked to the case of
State v. Elliott,
232 N.C. 377, 61 S.E.2d 93 (1950), a possession case involving a
similar factual circumstance where the defendant raised as a
determinative issue his lack of knowledge of the contents of a
grass bag which contained an illegal substance, in that case
liquor. In
Elliott, the Court found that “ordinarily, where a
specific intent is not an element of the crime, proof of the
commission of the unlawful act is sufficient to support a verdict.”
Id. at 378, 61 S.E.2d at 95.
Elliott further noted that “'[t]he
presumption, however, is not conclusive; it is evidence only so far
as to prove a
prima facie case in respect to the intent.'”
Id.
(citation omitted). Because in
Elliott the defendant specifically
pled lack of knowledge and offered evidence in support of that
contention, the Court held that
under the circumstances of this case, guilty
knowledge on the part of the appellant is an
essential element of the crimes charged, and
the law in respect thereto becomes a part of
the law of the case which should be explained
and applied by the court to the evidence in
the cause.
Id. at 378-79, 61 S.E.2d at 95.
Elliott then reviewed the trial
court's jury instruction, stating that:
The court, it is true, charged the jury
that defendants contend the liquor belonged to
[another party] and that they had no knowledge
the liquor was in their automobile[] . . .
[b]ut [also] charged the jury that if they
were satisfied beyond a reasonable doubt that
the defendant . . . at the time and place inquestion, was transporting illicit liquor
. . . they should return a verdict of guilty
on that count.
Id. at 379, 61 S.E.2d at 95.
Elliott found that such a charge was
insufficient and ordered a new trial, finding that:
Under the circumstances of this case the
court should have instructed the jury that the
defendant is guilty only in the event he knew
the liquor was on his automobile and that if
he was ignorant of that fact, and the jury
should so find, they should return a verdict
of not guilty.
Id. The Court in
Boone applied the same principles as
Elliott, and
similarly concluded that as the defendant had raised his lack of
knowledge as a determinative issue of fact:
Under the circumstances of this case, the
court should have instructed the jury that the
defendant is guilty only in the event he knew
the marijuana was in the trunk of his
automobile and that if he was ignorant of that
fact, and the jury should so find, they should
return a verdict of not guilty.
Boone, 310 N.C. at 294, 311 S.E.2d at 559.
As a result of the Supreme Court's holding in
Boone, the North
Carolina Pattern Jury Instructions were amended
. 2 N.C.P.I.--Crim.
260.17 (2003) now directs that an appropriate instruction for Drug
Trafficking by Possession states:
For you to find the defendant guilty of
this offense the State must prove two things
beyond a reasonable doubt:
First, that the defendant knowingly
possessed [heroin]. A person possesses
[heroin] if he is aware of its presence and
has (either by himself or together with
others) both the power and intent to control
the disposition or use of that substance.
And Second, that the amount of [heroin]
which the defendant possessed was [greater
than 28 grams].
Id. However the instruction further directs in Footnote 2 that
“[i]f the defendant contends that he did not know the true identity
of what he possessed,” the first element of the instruction should
be amended to read as follows: “
First, that the defendant
knowingly possessed [heroin] and the defendant knew that what he
possessed was [heroin].”
Id. Thus the proper instruction to be
given when a defendant contests lack of knowledge as to the true
identity of what he possessed is:
For you to find the defendant guilty of
this offense the State must prove two things
beyond a reasonable doubt:
First, that the defendant knowingly
possessed [heroin]
and the defendant knew that
what he possessed was [heroin]. A person
possesses [heroin] if he is aware of its
presence and has (either by himself or
together with others) both the power and
intent to control the disposition or use of
that substance.
And Second, that the amount of [heroin]
which the defendant possessed was [greater
than 28 grams].
Id. (emphasis added).
Here, Lopez properly requested that the trial court instruct
the jury with the amended instruction, as he contended in his
testimony that he was unaware that heroin was in the refrigerator
that he had been paid to receive for a third party. Our courts
have previously awarded new trials for the failure to properly
instruct the jury that a defendant was guilty only if he knew apackage contained an illicit substance, when the defendant had
presented evidence that he lacked knowledge of the true contents of
the package.
See Boone, 310 N.C. at 295, 311 S.E.2d at 559;
Elliott, 232 N.C. at 379, 61 S.E.2d at 95;
Stacy, 19 N.C. App. at
38, 197 S.E.2d at 883. Under the circumstances of this case,
therefore, as is required under
Boone, Lopez is entitled to a new
trial.
[4] Sanchez concedes that he did not request the amended
instruction, but requests that this Court review the instruction
for plain error. As noted above, only error “'so fundamental as to
amount to a miscarriage of justice or which probably resulted in
the jury reaching a different verdict than it otherwise would have
reached[,]'” rises to the level of plain error.
Parker, 350 N.C.
at 427, 516 S.E.2d at 118 (citations omitted).
Here, unlike with Lopez, Sanchez presented no evidence that he
was unaware of the contents of the package and did not raise the
issue of his knowledge as a determinative issue of fact to the
trial court, as was the case in
Boone and
Elliott. We therefore
find that as Sanchez did not contend that he lacked knowledge as to
the true identity of what he possessed, based on the evidence
before the trial court, the failure to give the requested
instruction as to Sanchez was not error.
As the trial court erred in failing to give the requested
instruction as to Lopez, we grant a new trial. As there was
sufficient evidence to survive a motion to dismiss and as we find
no error in the trial court's jury instruction as to Sanchez, we find no error in the judgments.
New trial as to Lopez, no error as to Sanchez.
Judges McCULLOUGH and GEER concur.
*** Converted from WordPerfect ***