An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 January 2007
STATE OF NORTH CAROLINA
No. 04 CRS 62625, 62626
ALFREDO MARTINEZ BRACAMONTES
and JOSE IVAN BRACAMONTES CRUZ,
Appeal by Defendants from judgment entered 24 August 2005 by
Judge A. Moses Massey in Superior Court, Forsyth County. Heard in
the Court of Appeals 31 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General,
Harriet F. Worley, and Special Deputy Attorney General,
Christine M. Ryan, for the State.
Jarvis John Edgerton, IV, for defendant-appellant Alfredo
M. Alexander Charns for defendant-appellant Jose Ivan
The underlying facts pertinent to the issues presented on
appeal tend to show that Winston-Salem Detectives Jose Gomez and
Chris Spain received an anonymous tip that two individuals were
selling methamphetamine at an apartment. The subsequent search of
that apartment, the legality of which is not challenged by this
appeal, yielded 178 grams of methamphetamine with an estimated
street value of $44,000.00.
At trial, Detective Gomez testified that he and Detective
Spain, dressed in plain clothes, twice went to the apartment on 4October 2004, met co-defendants Alfredo Martinez Bracamontes and
Jose Bracamontes Cruz, identified themselves as police officers,
and asked for permission to enter and search the apartment.
Defendant Bracamontes consented to the detectives' search of the
Afterwards, the detectives called for Winston-Salem K-9 Police
Officer Melly to bring her dog Drak to search the apartment for
methamphetamine. Although Defendant Bracamontes indicates in his
brief that he objected to the search of the apartment by Officer
Melly and her dog, the legality of that search is not an issue
presented on appeal. The detectives found in a jacket, in a
bedroom closet, several clear plastic bags which were later
determined to contain 178 grams of crystal methamphetamine.
In addition, Officer Spain found, in the apartment living
room, a backpack containing United States currency, hand scales,
rolling paper, and a shirt with a small amount of drugs.
Contrary to their pleas of not guilty, both Defendants were
found guilty of conspiring to traffic methamphetamine, trafficking
methamphetamine, and maintaining a vehicle, dwelling, or place
resorted to for the use of, or to keep, or sell a controlled
substance in violation of the North Carolina Controlled Substances
Act. From these convictions, Defendants appealed.
In separate briefs filed before this Court, Co-Defendants
contend (I) the trial court committed plain error by re-instructing
the jury on conspiracy to traffic methamphetamine by possession;
(II) it was ineffective assistance of counsel not to requestcomplete recordation of the entire trial and not to contest
evidence discovered by a search of the residence that exceeded the
scope of the consent to search; and (III) the trial court erred
when it allowed Detective Gomez to opine that drug dealers don't
leave drugs with people who do not know their full names.
Defendants first contend the trial court committed plain error
by re-instructing the jury on the conspiracy to traffic
methamphetamine by possession. They argue the trial court's re-
instruction failed to limit the conspiracy to the particular
offense and theory alleged in the indictment. We disagree.
Plain error is error that amounts to the denial of a
fundamental right or is so lacking in its elements that justice
cannot have been done[.] State v. Carpenter
, 147 N.C. App. 386,
397, 556 S.E.2d 316, 323 (2001) (citations omitted), cert. denied
536 U.S. 967, 153 L. Ed. 2d 851 (2002). To prevail under the plain
error analysis, a defendant must show that there was error, and
that absent the error, the jury would have reached a different
On appeal, Defendants argue the trial court's re-instruction
on the word conspiracy expanded the grounds on which each
defendant could be found guilty beyond the parameters set by the
indictment, and as such, the trial court's clarification amounted
to plain error. We are not persuaded.
A charge must be construed contextually, and
isolated portions of it will not be held
prejudicial when the charge as a whole is
correct. If the charge as a whole presents thelaw fairly and clearly to the jury, the fact
that isolated expressions, standing alone,
might be considered erroneous will afford no
ground for a reversal.
State v. McWilliams
277 N.C. 680, 684-85, 178 S.E.2d 476
(1971) (internal citations omitted).
Here, the indictments stated, in pertinent part:
[T]he defendant . . . unlawfully, willfully,
and feloniously did conspire with [Co-
Defendant] and persons known and unknown to
commit the felony of trafficking to possess 28
grams or more, but less than 200 grams of
Regarding this charge, the trial court initially instructed
the jury, in pertinent part, as follows:
For you to find the Defendant, either
Defendant guilty of this offense the State
must prove three things beyond a reasonable
First, that the Defendant . . . entered into
Second, that the agreement was to commit
trafficking in methamphetamine by possession
of 28 grams or more but less than 200 grams of
And third, the State must prove beyond a
reasonable doubt as to _ as to the conspiracy
charge against each Defendant . . . with the
other Defendant, intended that the agreement
be carried out at the time it was made.
Neither Defendant objected to this instruction on the grounds that
it was beyond the scope of the charges stated in the indictment or
During deliberations, the jury passed a note to the trial
court stating, (1) Clarify definition of 'conspiring' (2) Relationof Bedroom to Bathroom. Following a discussion with counsel
outside the presence of the jury, the trial court thereafter
instructed the jury that,
[t]he answer to your first question is that I
am simply going to say this to you, it's a
sort of review of what you were told earlier:
A person commits the offense of conspiracy to
commit a crime by entering into an agreement
with at least one other person, in this case
the allegation is that each Defendant entered
into an agreement with the other Defendant to
commit an _ so, the elements in a nutshell of
conspiracy to commit a crime are, that a
person enters into an agreement with at least
one other person to commit an unlawful act
with the intent at the time by the Defendant
and at least one of the others that the
agreement be carried out.
The trial court's definition of conspiracy was a generic one
and within the context of the initial jury instruction. Moreover,
the additional instruction did not expand the scope of the grounds
upon which guilt could be ascertained. As such, the trial court's
instruction on conspiracy did not amount to plain error.
Accordingly, we find no merit to this issue.
Defendants next assert that it was ineffective assistance of
counsel to not request complete recordation of the entire trial and
not contest evidence discovered by a search of the residence that
exceeded the scope of the consent to search. However, in their
briefs, Defendants concede that the present state of the law
does not support this argument and that they raise this issue at
this time for preservation purposes. We agree that this Courtdecided this issue in State v. Verrier, _ N.C. App. _, 617 S.E.2d
675 (2005). Accordingly, we reject this assignment of error.
Defendants next contend the trial court erred when it allowed
Detective Gomez to opine that drug dealers don't leave forty-four
thousand dollars worth of drugs with people who do not know their
full name. We disagree.
Under Rule 701 of the 2005 North Carolina Rules of Evidence,
a layperson may testify to his opinion where his testimony . . .
is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in
issue. Furthermore, evidence helpful to a clear understanding of
his testimony or the determination of a fact in issue is relevant
evidence under Rule 401 of the 2005 North Carolina Rules of
On appeal, Defendants argue Detective Gomez's statement, that
forty-four thousand dollars worth of drugs is not going to be left
with Defendants by a person Defendants only know as Nani, was (a)
not based on first hand knowledge or observation nor was it (b)
helpful to a clear understanding of his testimony or the
determination of the fact in issue. We are not persuaded.
The facts here are analogous to those addressed by this Court
in State v. Bunch
104 N.C. App. 106, 408 S.E.2d 191 (1991).
, an undercover agent
working for the
Bertie-Hertford-Northampton Tri-County Drug Task Force
testifiedagainst the defendant on a charge of sell and delivery of cocaine.
According to the facts, the agent approached two men and
indicated that he wanted to buy a user amount of cocaine. Id.
defendant told the agent to drop the money on the ground. Id.
The agent placed twenty dollars on the ground after which the
defendant handed a tinfoil packet to the other man, who in turn
picked up the twenty dollars and handed the tinfoil packet, which
contained crack cocaine, to the agent. Id.
At trial, the agent
it was common practice in drug transactions in [Hertford
County] for one person to hold the money and for another person to
carry the drugs. The purpose for such practice was that in the
event of an arrest, one individual would not have possession of
both the money and the drugs.
110, 408 S.E.2d at 194.
defendant in Bunch
argued on appeal that it was error for
the trial court to admit testimony concerning the common practices
of drug dealers. This Court disagreed, holding instead that
was relevant, based on personal knowledge, and
non-prejudicial, and, accordingly, the trial judge did not err in
admitting the police officer's testimony.
110, 408 S.E.2d
at 194; see also
State v. Givens
95 N.C. App. 72, 381 S.E.2d 869
(1989) (holding that
[a] lay witness must have a basis of personal
knowledge for his opinion. However, a preliminary determination of
personal knowledge need not be explicit but may be implied from the
Here, Detective Gomez testified that he was employed with the
Winston-Salem Police Department since January 1999; assigned tospecial investigations division, vice and narcotics section;
approaching his third year doing narcotics investigation; and had
made over a hundred arrests in the field of narcotics. Detective
Gomez further testified to his familiarity with crystal
methamphetamine and estimated, based on his training and
experience, the 178 grams found in Defendant Bracamontes apartment
had a street value of forty-four thousand dollars.
Following the discovery of methamphetamine in his apartment,
Defendant Bracamontes stated the drugs came from a Hispanic male
named Nani, who had dropped the drugs off at his apartment. At
trial, Detective Gomez opined that, it's been my training and
experience that forty-four thousand dollars worth of crystal
methamphetamine is not just going to be given to any person by whom
you just . . . know by the name of Nani.
Given Detective Gomez's testimony regarding his experience
making narcotic arrests,
that Detective Gomez's testimony
was relevant, based on personal knowledge, and non-prejudicial.
Accordingly, we hold the trial judge did not err in admitting
Detective Gomez's testimony.
We have further reviewed the additional issues presented by
Defendant Cruz in his brief and find them to be wholly without
Judges HUDSON and STEPHENS concur.
Report per rule 30(e).
The judges participated and submitted this opinion for filing
prior to 1 January 2007.
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