STATE OF NORTH CAROLINA
v. Haywood County
No. 05 CRS 50085
GILBERT ZAMORA,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Brent D. Kiziah, for the State.
William D. Auman, for defendant-appellant.
HUDSON, Judge.
At the 19 September 2005 criminal session of superior court,
a jury found defendant Gilbert Zamora guilty of felonious
trafficking more than fifty, but less than 2,000, pounds of
marijuana. The court sentenced defendant to 35 to 45 months in
prison. Defendant appeals. For the reasons discussed below, we
find no error.
The evidence tended to show the following: Trooper Ray Herndon
of the North Carolina Highway Patrol stopped the car in which
defendant was a passenger for traveling sixty-nine miles per hour
in a fifty-five mile-an-hour zone on Interstate 40. After
obtaining a driver's license and insurance documents from the
driver, Rafael Trajillo, Trooper Herndon searched Trajillo forweapons and found none. After getting contradictory replies from
defendant and Trajillo about their destination and noticing several
cardboard boxes in the vehicle, Trooper Herndon asked for and
received permission to search the car. Another trooper arrived
with a dog which alerted on the boxes; a subsequent search revealed
256 individual packets of marijuana with a gross weight of 294
pounds. On cross-examination, Trooper Herndon admitted that
Tarjillo had obtained the boxes from someone in Milwaukee or
Chicago alone and that defendant played no role in that
transaction. Defendant offered no evidence. Defendant moved to
dismiss for insufficiency of the evidence which motion the court
denied. Defendant also requested the jury be instructed on the
lesser-included offense of trafficking less than fifty pounds of
marijuana, but the court declined to do so.
Defendant first argues that the trial court erred in failing
to instruct the jury as requested by defendant on the lesser
included offense of trafficking more than 10 but less than 50
pounds of marijuana. We do not agree.
N.C. Gen. Stat. § 90-95(h) (2004) provides in pertinent part
that:
(1) Any person who sells, manufactures,
delivers, transports, or possesses in excess
of 10 pounds (avoirdupois) of marijuana shall
be guilty of a felony which felony shall be
known as “trafficking in marijuana” and if the
quantity of such substance involved:
a. Is in excess of 10 pounds, but less than 50
pounds, such person shall be punished as a
Class H felon and shall be sentenced to a
minimum term of 25 months and a maximum term
of 30 months in the State's prison and shallbe fined not less than five thousand dollars
($ 5,000);
b. Is 50 pounds or more, but less than 2,000
pounds, such person shall be punished as a
Class G felon and shall be sentenced to a
minimum term of 35 months and a maximum term
of 42 months in the State's prison and shall
be fined not less than twenty-five thousand
dollars ($ 25,000).
Id. Weight is an essential element under this statute. State v.
Anderson, 57 N.C. App. 602, 608, 292 S.E.2d 163, 167 (1982).
Defendant contends that the evidence regarding the weight of the
marijuana could have permitted the jury to convict him of a lesser
level of trafficking, in that not all of the material seized was
shown actually to be marijuana. In State v. Wilson, this Court
considered a similar assignment of error. 155 N.C. App. 89, 574
S.E.2d 93 (2002), disc. review denied, 356 N.C. 693, 579 S.E.2d 98.
We held that
[a] defendant is entitled to an instruction on
a lesser included offense if the evidence
would permit a jury rationally to find him
guilty of the lesser offense and acquit him of
the greater. When the offense is for
trafficking in cocaine, the only difference
between the greater and lesser levels of the
offense relate to the amount of cocaine found.
N.C. Gen. Stat. § 90-95(h)(3)(a-c) (2001). In
the present case, it is undisputed that the
amount of cocaine discovered by the officers
weighed 1,995 grams. Since the weight of the
cocaine was clear, the jury could not have
convicted Defendant Calvert of a lesser level
of trafficking in cocaine in the absence of
evidence supporting a lesser offense. Thus,
the court did not err by failing to instruct
the jury as to the different levels by which
Defendant Calvert could have been found guilty
of this offense.
Id. at 99-100, 574 S.E.2d at 100-101 (internal citations andquotation marks omitted). Where the State has presented evidence
of the weight of marijuana, this Court held that “[t]he burden
would be upon the defendants to show that . . . part of the matter
or material seized did not qualify as 'marijuana.'” Anderson, 57
N.C. App. at 608, 292 S.E.2d at 167.
Here, Trooper Herndon testified that he opened several packets
and each contained marijuana. He weighed the packets in groups on
a balance scale to obtain the total weight of 294 pounds. Although
Trooper Herndon testified that he did not open every packet, he did
testify that he was certain they all contained marijuana. Thus,
the State presented evidence of the weight of the marijuana and
defendant made no showing that any of the seized material was not
marijuana. We overrule this assignment of error.
Defendant also argues that the trial court erred in failing to
dismiss the charge against him on the basis of insufficiency of the
evidence. We disagree.
In ruling on a motion to dismiss,
the trial court must consider all the evidence
admitted in the light most favorable to the
State, giving the State the benefit of every
reasonable inference that might be drawn
therefrom, and it must decide whether there is
substantial evidence of each element of the
offense charged. Substantial evidence is such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
If there is any evidence that tends to prove
the fact in issue or that reasonably supports
a logical and legitimate deduction as to the
existence of that fact and does not merely
raise a suspicion or conjecture regarding it,
then it is proper to submit the case to the
jury.
State v. Mitchell, 336 N.C. 22, 27, 442 S.E.2d 24, 27(1994)(internal citations and quotation marks omitted).
In a prosecution for possession of contraband
materials, the prosecution is not required to
prove actual physical possession of the
materials. Proof of nonexclusive,
constructive possession is sufficient.
Constructive possession exists when the
defendant, while not having actual possession,
. . . has the intent and capability to
maintain control and dominion over the
narcotics. 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 charge of unlawful possession.
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.
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001)
(internal citations and quotation marks omitted; ellipses in
original). “[C]onstructive possession depends on the totality of
the circumstances in each case. No single factor controls, but
ordinarily the questions will be for the jury.” State v. Jackson,
103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991), affirmed, 331
N.C. 113, 413 S.E.2d 798 (1992) (emphasis in original). Where a
defendant “did not have exclusive possession of the car in which
the [contraband] was found, the critical issue is whether the
evidence discloses other incriminating circumstances sufficient for
the jury to find defendant had constructive possession of the
[contraband].” Matias, 354 N.C. at 552, 556 S.E.2d at 271.
Here, the evidence showed that defendant was the passenger in
a vehicle carrying 296 pounds of marijuana. Defendant did not look
at Trooper Herndon when he approached after the traffic stop. Defendant gave a story about his destination that was different
from Trajillo's and gave conflicting versions of his own account.
Defendant and Trajillo also gave conflicting stories about the
contents and ownership of the boxes which contained the marijuana.
Taken in the light most favorable to the State, these additional
incriminating circumstances support the jury's finding that
defendant had constructive possession of the marijuana. This
assignment of error is without merit.
No error.
Judges MCCULLOUGH and TYSON concur.
Report per Rule 30(e).
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