An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 May 2006
STATE OF NORTH CAROLINA
No. 02 CRS 52336
MARIA DE JESUS GARIBAY
Appeal by defendant from judgment entered 11 October 2004 by
Judge William C. Griffin, Jr. in Beaufort County Superior Court.
Heard in the Court of Appeals 28 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Paul F. Herzog for defendant-appellant.
Maria De Jesus Garibay (defendant) was indicted for
trafficking in cocaine by possession, trafficking in cocaine by
manufacture, and possession of drug paraphernalia. The State's
evidence at trial tended to show that on 26 June 2002 Lieutenant
Tim McLawhorn (McLawhorn) of the Beaufort County Sheriff's
Department was conducting a surveillance of defendant's residence.
Defendant shared a trailer with her husband, Armando Felix (Felix),
and their five children. McLawhorn observed defendant leave her
store around 9:00 p.m. in a white Crown Victoria. About ten or
fifteen minutes later, McLawhorn rode by defendant's trailer and
did not see the Crown Victoria. At approximately 9:30 p.m.,
McLawhorn observed defendant drive up to her trailer in a blueNissan Quest van. The van was then moved and parked behind a
garage further from McLawhorn's position of surveillance.
At approximately 4:15 a.m. on 27 June 2002, McLawhorn drove by
defendant's trailer and saw that the hood and the driver and
passenger doors of the van were open but no interior lights were on
inside the vehicle. Felix walked from the van into the trailer and
returned from the trailer carrying a box. A few minutes later
Felix carried the box back to the trailer. Defendant walked from
the van to the trailer carrying a small object. Approximately five
minutes later, Felix left the trailer and walked into the garage.
He remained inside for about twelve to fifteen minutes. McLawhorn
observed Felix holding a shovel and heard scraping sounds. Felix
then retrieved a broom and swept some dirt behind a car in a corner
of the garage before returning to the trailer.
McLawhorn returned later that morning with other law
enforcement officers in order to execute a search warrant. The
officers knocked on the door of defendant's trailer, and several
children answered the door. The officers entered and found
defendant and Felix together in the master bedroom. Felix was
taken into custody based upon pre-existing arrest warrants and an
INS detainer. An officer interpreted as McLawhorn spoke with
defendant. McLawhorn asked defendant whether there were drugs,
guns, or money on the property. Defendant responded that her
husband had given her $20,000.00 the night before, and then led the
officers to a paper bag filled with cash. She stated that she did
not know where her husband had gotten the money. The officers began to search the garage and discovered a
hollowed-out area near where Felix had been standing earlier.
Inside that area, the officers retrieved a package of cocaine in
brick form and a plastic container holding jewelry, bank records,
and a deed to the property in defendant's name. McLawhorn asked
defendant if the brick of cocaine was the object her husband was
carrying earlier from the van, and defendant stated that it was.
The officers found another package of cocaine inside defendant's
At trial, McLawhorn read the results of a laboratory report
from the State Bureau of Investigation (SBI) showing that the
substances from the garage and the trailer were cocaine. The SBI
chemical analyst who generated the report did not testify at trial.
The report indicated that the brick of cocaine found buried in the
garage weighed 435.4 grams and that the smaller bag of cocaine
found inside the trailer weighed 19 grams.
At the close of the State's evidence, the trial court
dismissed the charges of trafficking in cocaine by manufacture and
possession of drug paraphernalia. The jury returned a guilty
verdict on the remaining charge of trafficking in cocaine by
possession. The trial court sentenced defendant to 175 to 219
months imprisonment. Defendant gave timely notice of appeal to
First, defendant contends that permitting McLawhorn to testify
to the results of the SBI laboratory report violated theConfrontation Clauses of the Sixth Amendment to the United States
Constitution and Article I, Section 23 of the North Carolina
Constitution. Defendant argues that the information contained
within the report is testimonial evidence under Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). The State
asserts that defendant has waived her right of confrontation by
failing to comply with the requirements of N.C. Gen. Stat. § 90-
Section 90-95(g) of the Controlled Substances Act provides a
procedural step that a defendant in a criminal proceeding may take
to preserve an objection to the admission of a chemical analysis
report of a controlled substance:
Whenever matter is submitted to the North
Carolina State Bureau of Investigation
Laboratory . . . for chemical analysis to
determine if the matter is or contains a
controlled substance, the report of that
analysis certified to upon a form approved by
the Attorney General by the person performing
the analysis shall be admissible without
further authentication in all proceedings in
the district court and superior court
divisions of the General Court of Justice as
evidence of the identity, nature, and quantity
of the matter analyzed. Provided, however,
that a report is admissible in a criminal
proceeding in the superior court division or
in an adjudicatory hearing in juvenile court
in the district court division only if:
(1) The State notifies the defendant at
least 15 days before trial of its intention to
introduce the report into evidence under this
subsection and provides a copy of the report
to the defendant, and
(2) The defendant fails to notify the
State at least five days before trial that the
defendant objects to the introduction of the
report into evidence.
Nothing in this subsection precludes the right
of any party to call any witness or to
introduce any evidence supporting or
contradicting the evidence contained in the
N.C. Gen. Stat. § 90-95(g) (2005). Defendant does not dispute that
she received a copy of the report and that she failed to notify the
State at least five days prior to trial that she objected to its
introduction into evidence. Instead, defendant argues that N.C.
Gen. Stat. § 90-95(g) is unconstitutional because it requires
criminal defendants to take affirmative steps to protect their
confrontation rights and lacks a safeguard to ensure that a waiver
of a defendant's confrontation rights is knowing and voluntary.
Foremost, we note that defendant failed to make an objection
to the trial court's admission of the contents of the laboratory
report based upon her right of confrontation. Defendant's
objection at trial to chain of custody was insufficient to preserve
a constitutional challenge to the admission of the State's
testimony. See N.C.R. App. P. 10(b)(1); State v. Watts, 357 N.C.
366, 372, 584 S.E.2d 740, 745 (2003) (Constitutional issues not
raised and passed upon at trial will not be considered for the
first time on appeal.), cert. denied, 541 U.S. 944, 158 L. Ed. 2d
370 (2004). Defendant's contention that the right of confrontation
is fundamentally different in nature than other constitutional
rights which may be waived by inaction of trial counsel is
unpersuasive. A defendant's right of confrontation may be waived
by a failure to timely assert it. See State v. Braswell, 312 N.C.
553, 558, 324 S.E.2d 241, 246 (1985) (The constitutional right ofan accused to be confronted by the witnesses against him is a
personal privilege which he may waive expressly or by a failure to
assert it in apt time even in a capital case.) (citing State v.
Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969)); State v.
English, 171 N.C. App. 277, 282, 614 S.E.2d 405, 409 (2005).
Defendant's assignment of error is overruled.
Next, defendant contends that the trial court erred in denying
her motion to dismiss the charge of trafficking in cocaine by
possession of more than 400 grams of cocaine. Defendant argues
that there was insufficient evidence to support a determination
that she constructively possessed the 454-gram brick of cocaine.
The trial court's review of a motion to dismiss has been stated as
In determining the sufficiency of the evidence
to withstand a motion to dismiss and to be
submitted to the jury, the trial court must
determine 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. State v.
Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980). Substantial evidence is such relevant
evidence as is necessary to persuade a
rational juror to accept a conclusion. State
v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893,
899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d
459, 121 S. Ct. 487 (2000). The trial court
must review the evidence in the light most
favorable to the State, giving the State the
benefit of every reasonable inference to be
drawn therefrom. State v. Barnes, 334 N.C.
67, 75, 430 S.E.2d 914, 918 (1993).
State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003). To support a conviction on a theory of constructive possession
of a controlled substance, the State must establish that the
defendant had both the power and intent to control its disposition
or use[.] State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190
(1989) (internal quotations omitted). When the controlled
substance is found on the defendant's property, an inference arises
that the defendant had knowledge and possession of the substance.
Id. However, unless the [defendant] has exclusive possession of
the place where the narcotics are found, the State must show other
incriminating circumstances before constructive possession may be
Here, the State's evidence established that defendant owned
the property where the cocaine was found. However, defendant did
not have exclusive possession of the property, as she shared it
with her husband and children. Thus, we must determine if the
evidence, viewed in the light most favorable to the State, shows
other incriminating circumstances such that the jury could infer
constructive possession of the cocaine.
Defendant cites primarily to State v. Alston, 131 N.C. App.
514, 508 S.E.2d 315 (1998). In Alston, the defendant was a
passenger in a truck registered in his brother's name and being
driven by his wife. When an officer approached the vehicle, one of
the defendant's children inside the vehicle said, Daddy's got a
gun. Id. at 515, 508 S.E.2d at 316. The officer walked over to
the passenger side where the defendant was sitting and observed a
handgun on top of the console between the driver and passengerseats. The evidence showed that the defendant's wife purchased and
owned the handgun. Id. at 518, 508 S.E.2d at 318-19. The
defendant argued that there was insufficient evidence of his
possession of the handgun. This Court held that, although the
defendant and his wife had equal access to the gun on the console
between their two seats, there was insufficient additional
incriminating evidence connecting the defendant to the gun. Id.
The facts of Alston are distinguishable. In the instant case,
the State does not rely solely upon evidence that defendant and her
husband had equal access to the garage where the brick of cocaine
was located. There was other evidence to support an inference of
constructive possession: First, defendant owned the property on
which the brick of cocaine was found by the officers. Second,
officers observed Felix carrying a heavy object from the van, and
then observed defendant carrying a small package in her hands from
the van to the trailer. Third, the brick of cocaine was found
buried with a container that held personal papers belonging to
defendant. Fourth, when asked by officers whether the brick of
cocaine found buried in the garage was the package that her husband
took out of the van, defendant replied that it was. Fifth,
defendant showed officers a paper bag containing $20,000.00 in cash
located inside her trailer. We hold that there was sufficient
evidence of other incriminating circumstances such that the jury
could infer that defendant constructively possessed the cocaine
found buried in the hollowed-out area of the garage.
Finally, defendant contends that the trial court erred in
failing to allow a continuance for defendant to hire new counsel.
Defendant concedes that she never expressly asked the court for a
continuance to hire new counsel, but argues nonetheless that her
statement that she was not satisfied with her representation
implied a request for a continuance.
The record reveals that defendant's case came on for trial on
11 October 2004. Before the jury was impaneled, the trial court
inquired into defendant's statement that she wanted to discharge
her counsel, Ms. Privette. Ms. Privette was retained by defendant
in August of 2003. Defendant stated that her attorney had advised
her to plead guilty and that this made her uncomfortable.
Defendant told the trial court that she wanted an attorney from
another county and that she did not know how long it would take to
get another attorney to represent her. The trial court ruled that
defendant could either proceed with Ms. Privette or have her bond
revoked and remain in jail until she hired another attorney.
Assuming that defendant's statements to the court implied a
motion for a continuance, we reject her contention that she is
entitled to a new trial. Ordinarily, a trial court's ruling on a
motion for a continuance is reviewed for an abuse of discretion.
State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).
However, when a motion for a continuance raises a constitutional
right, the appellate court reviews the ruling on the motion as a
question of law. Id. Even so, the defendant is entitled to a new
trial based upon the erroneous denial of a motion for a continuanceonly where the defendant shows prejudice. Id. Here, defendant has
failed to show that she was prejudiced by the trial court's ruling.
Defendant does not point to any portion of the record indicating
that her case was prejudiced as a result of Ms. Privette's
representation. Defendant's final assignment of error is
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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