STATE OF NORTH CAROLINA
Nos. 04 CRS 75455, 75456
SALVADOR GOMEZ HERNANDEZ,
In May 2004, defendant was indicted for trafficking marijuana by transportation and trafficking marijuana by possession. In November 2004, a jury convicted defendant of both charges and he received an active sentence. Defendant appeals. We conclude that there was no error.
On 9 April 2004, State Trooper Gregory Strader was in the highway median of Interstate 85 in Guilford County clocking vehicles for speeding. Strader testified that as defendant Salvador Hernandez approached Strader's marked patrol car, he quickly slowed down, from 70 to 60 miles per hour. Strader also testified that as the driver went by me he did not acknowledge me, but stared straight ahead. Citing the rapid change in behavior, Strader pulled out behind Hernandez and ran a licenseplate check. The plate came back as invalid due to a DMV insurance stop and Strader pulled Hernandez over. When Strader asked for Hernandez's driver's license, he presented a North Carolina identification card and vehicle registration form, but admitted he had no license. Strader noticed that Hernandez's hands were shaky during this exchange, but did not know whether he was nervous because he didn't have a driver's license or if he was nervous for some other reason. Strader spoke sufficient Spanish to communicate with Hernandez, a Spanish-speaker.
At Strader's request, Hernandez stepped out of the car and went with Strader to his patrol car. Strader confirmed that the I.D. card belonged to Hernandez, but that the vehicle was registered to a Samuel Villages Sandoval of Charlotte. When asked who owned the car, defendant stated that he did not know. Strader testified that when he was questioning Hernandez, there was extreme nervousness in his voice and that his breathing was rapid. Strader then wrote a citation for driving while license revoked. After explaining to Hernandez that his license had been suspended and he could not drive, Strader told Hernandez that he was free to go. As Hernandez was opening the patrol car's door to get out, Strader asked him if there were any drugs in the car and Hernandez replied that there were not. Strader asked Hernandez if he could search the car and he consented. Strader gave Hernandez a written consent-to-search form that he read but did not sign.
Trooper Allison, who had arrived in response to Strader's request for assistance, then frisked Hernandez and found noweapons. Allison used a dog to conduct external and internal sniffs of the vehicle. When the dog neared the trunk, he gave a strong indication that he smelled something inside. The dog then sniffed the back seat of the car and again indicated that he smelled a drug odor. Allison also smelled a strong raw marijuana odor when he opened the car's door to let the dog inside. Allison opened the trunk with a key and found a black plastic trash bag with a piece of paper with the number 50 on it. The troopers opened the bag and found several bundles, or bricks, of raw marijuana inside. Strader read Hernandez his Miranda rights and Hernandez indicated that he understood his rights and that he did not know anything about the marijuana. The marijuana weighed almost 50 pounds and Strader estimated the street value to be more than $190,000.00.
At trial, Hernandez testified that on the day before his arrest, he was playing billiards in Charlotte with a man he had known for a few days, Naranjas. Naranjas took a phone call and then told Hernandez that he had bought a car and asked if Hernandez would drive it to Charlotte from Greensboro for $500.00. Later that day, Naranjas drove them to Greensboro. While socializing with Naranjas' cousin, Hernandez became intoxicated and could not drive, so Naranjas got him a hotel room. Hernandez did not observe the delivery of the car, but Naranjas pointed the car out to Hernandez through the hotel room window, gave Hernandez the keys and $40.00, and returned to Charlotte. The next morning, Hernandez left to return to Charlotte and was pulled over by trooper Straderafter driving for about 20 minutes.
Defendant argues that the trial court erred in not suppressing the evidence pertaining to the search of the vehicle and the seizure of the marijuana found therein. Defendant argues, for the first time on appeal, that the search was conducted without reasonable, articulable suspicion and thus the United States Constitution requires the exclusion of the evidence. We conclude that defendant waived this argument by not raising it at trial.
A motion to suppress made before or during trial is required to properly preserve for appeal an objection to the admissibility of evidence. State v. Howie, 153 N.C. App. 801, 802, 571 S.E.2d 245, 246 (2002), cert. denied, 357 N.C. 167, 581 S.E.2d 64 (2003). See N.C. Gen. Stat. §§ 15A-974, 15A-975 & 15A-979(d) (2004). N.C. Gen. Stat. § 15A-975 requires that a defendant move to suppress evidence prior to trial unless the defendant did not have reasonable opportunity to make the motion before trial, or unless a motion to suppress is allowed during trial due to the State's failure to notify defendant more than 20 working days before trial of its intention to use the evidence, or when defendant discovers additional pertinent facts . . . which he could not have discovered with reasonable diligence before the determination of the motion. Id. Our Supreme Court has held that
Chapter 15A, Article 53, of the General Statutes sets forth the exclusive method for challenging evidence on the ground that its exclusion is constitutionally required. The defendant has the burden of showing that he has complied with the procedural requirements of Article 53 . . . . When no exception to the general rule applies, failure to make a timelymotion to suppress prior to trial is a waiver of any right to contest the inadmissibility of evidence on constitutional grounds.
State v. Maccia, 311 N.C. 222, 227-28, 316 S.E.2d 241, 244 (1984). Here, as in Maccia, [s]ince the defendant did not move to suppress prior to trial and no exception to the general rule applies, we hold that the defendant waived his right to contest the admissibility of evidence. Id.
Defendant also argues that failure by his trial counsel to move to suppress the evidence constitutes ineffective assistance of counsel (IAC). It is well-established that a person accused of a crime has a constitutional right to effective assistance of counsel. State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985); Strickland v. Washington, 466 U.S. 668, 686, 80 L.Ed.2d 674, 692 (1984). Usually, and more appropriately, IAC claims are raised in post-conviction proceedings rather than on direct appeal. State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985). However, IAC claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required. State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). Based on our review of the record here, we conclude that we may address defendant's IAC claim on the merits without further investigation.
In order to succeed on an IAC claim, the defendant must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. at 687, 80 L. Ed. 2d at 693. First, defendant must show that counsel's performance was deficient, in that counsel made errorsso serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment, and then he must also show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. State v. Mason, 337 N.C. 165, 177, 446 S.E.2d 58, 65 (1994). Because of the difficulties in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. (citing Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694). In analyzing the reasonableness of an attorney's performance under the first prong, we must consider the totality of the circumstances at the time of performance and we must avoid the temptation to second-guess the actions of trial counsel. State v. Gainey, 355 N.C. 73, 112-13, 558 S.E.2d 463, 488, cert. denied, 537 U.S. 896, 154 L.Ed.2d 165 (2002). Here, as defendant consented to the search, his attorney's actions in not moving to suppress the evidence obtained thereby were not deficient. Thus we conclude that defendant's IAC claim lacks merit.
Defendant also contends that the trial court erroneously denied his motions to dismiss for insufficiency of the evidence. We disagree.
When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied. The issue of whether the evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982) (internal citations and quotation marks omitted). In reviewing the trial court's ruling, we must evaluate the evidence in the light most favorable to the State. State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983). All contradictions must be resolved in favor of the State. Id. The ultimate question is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). As long as the evidence supports a reasonable inference of defendant's guilt, it is up to the jury to decide whether there is proof beyond a reasonable doubt. State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998). This is true regardless of whether the evidence is direct or circumstantial. Id.
Defendant concedes that a person may be deemed to have constructive possession of a controlled substance if he has both the power and the intent to control its disposition or use. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). The driver of a borrowed car, like the owner of a car, has the power to control the contents of the car. See State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984). Defendant argues that here there was insufficient evidence that he was aware of the presence of the drugs in the car. However, a defendant's power to control the automobile where a controlled substance was found is enough togive rise to the inference of knowledge and possession sufficient to go to the jury. State v. Hunter, 107 N.C. App. 402, 409, 420 S.E.2d 700, 705 (1992), overruled on other grounds, State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994). See also State v. Munoz, 141 N.C. App. 675, 685, 541 S.E.2d 218, 224, cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001). Accordingly, we conclude that the evidence supports defendant's convictions.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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