Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 March 2007
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 05 CRS 211026
Appeal by defendant from judgment entered 9 November 2005 by
Judge Albert Diaz in Superior Court, Mecklenburg County. Heard in
the Court of Appeals 19 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Jennifer M. Jones, for the State.
Mercedes O. Chut, for defendant-appellant.
A jury found Defendant Ramon Flores-Renteria guilty of
trafficking in at least 400 grams of cocaine by possession, but not
guilty of trafficking in marijuana by possession. The trial court
sentenced him to a statutorily prescribed term of 175 to 219
months' imprisonment. N.C. Gen. Stat. § 90-95(h)(3)(c) (2005).
Defendant gave timely notice of appeal from the judgment.
At trial, Charlotte-Mecklenburg Police Detective Jesus Manuel
Rendon testified that a confidential informant reported to him on
9 March 2005, that he knew of an individual known to him as
'Ramon,' that would be selling a large amount of cocaine by the
kilo to the confidential informant the following day. Anintermediary known as Mr. Phillipe had introduced the
confidential informant to Defendant to arrange the transaction.
On the morning of 10 March 2005, Detective Rendon met with the
confidential informant and searched his person and vehicle to
verify that he was not carrying any drugs. Detective Rendon
assembled a surveillance team and equipped the confidential
informant and his car with transmitters so that he could overhear
the confidential informant's conversations and monitor the location
of his vehicle. Defendant then met the confidential informant and
Phillipe at a Chinese restaurant on Tyvola Road, arriving in a blue
truck. Detective Rendon heard Defendant tell the confidential
informant that he was going to take him to the house.
Defendant got into Phillipe's car and proceeded to a Bojangles
restaurant on South Boulevard. The confidential informant drove to
the restaurant in his own car. At Bojangles, Defendant exited
Phillipe's car and got into the confidential informant's car.
Detective Rendon then heard the following conversation between the
confidential informant and Defendant:
The Defendant told the confidential informant
that he would take him to the house, show him
the narcotics, being the cocaine. Then the
confidential informant would call the money
person, being somebody else to bring the money
to the residence to conduct the transaction.
Defendant quoted the confidential informant a price of $22,000 per
kilogram and told him that the drugs were at the residence.
Defendant directed the confidential informant to a house
located at 6635 Starcrest Drive. The two men got out of the car
and went into the house through the rear entrance. DetectiveRendon then heard Defendant tell the confidential informant in
Spanish that it's all there, look at it. Minutes later, the
confidential informant called another detective and reported, It's
here, I saw it. Detective Rendon instructed the confidential
informant to buy us some more time until a search warrant could
be obtained. Ten minutes later, Detective Rendon instructed the
confidential informant to tell the Defendant that he was going to
leave the residence to meet the money person to bring him back to
the Defendant's address. At the confidential informant's
departure, a raid team descended upon the house and executed the
search warrant. When Detective Rendon arrived, he saw an officer
leading Defendant from behind the house toward a patrol car.
Defendant told police that he lived in the house. In the garage,
Detective Rendon observed packages containing approximately ten
kilograms of a powdery substance appearing to be cocaine. Officers
seized the packages and delivered them to the Drug Enforcement
In a gray car parked beside the cocaine in the garage,
Detective Rendon discovered a hole used as a compartment to
conceal narcotics between the car's left rear tire and trunk. The
compartment was large enough to accommodate the packages of cocaine
found in the garage. Elsewhere in the house, police found thirteen
pounds of marijuana, $49,000 in cash, and a handgun.
Russell Allred, a forensic chemist for the DEA, testified that
the packages seized from the garage at 6635 Starcrest Drive
contained a total of 9,958 grams of cocaine hydrochloride.
Following a trial, a jury convicted Defendant of trafficking
by possession in cocaine and the trial judge sentenced him to
prison for a term of 175 to 219 months. Defendant appeals,
contending the trial court erred by (I) denying his motion to
dismiss the charge and (II) admitting hearsay evidence.
Under the familiar standard of review from the denial of a
motion to dismiss, we must determine whether the evidence, when
viewed in the light most favorable to the State, would allow a
reasonable juror to find the defendant guilty of each essential
element of the offense beyond a reasonable doubt. See, e.g., State
v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 636 (2000). To
withstand Defendant's motion in the instant case, the State was
obligated to show that (1) defendant knowingly possessed cocaine,
and (2) the cocaine weighed at least 400 grams. See State v.
White, 104 N.C. App. 165, 168, 408 S.E.2d 871, 873 (1991).
Defendant does not challenge the weight of the cocaine found in the
garage but avers the State failed to prove his possession thereof.
Possession of contraband may be actual or constructive. See
State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). A
person has constructive possession of an object if he has both the
power and intent to control its disposition or use. State v.
Frazier, 142 N.C. App. 361, 367, 542 S.E.2d 682, 687 (2001)
(quoting State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289
(1993)). Where the defendant and a controlled substance are found
on the same premises, but the defendant's control over the premisesis non-exclusive, the State must show other incriminating
circumstances that would permit a reasonable inference of the
defendant's dominion over the controlled substance. See State v.
Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984).
We find no error by the trial court. Detective Rendon
overheard Defendant negotiate a sale of the cocaine with the
confidential informant, quote him a price of $22,000 per kilogram,
and tell the confidential informant that the cocaine was at a
house. See State v. Anderson, 76 N.C. App. 434, 438, 333 S.E.2d
762, 765 (1985) (finding that defendant exercised control over the
heroin by setting the price). Defendant led the confidential
informant to the address where the cocaine was stored. Detective
Rendon then heard Defendant tell the confidential informant to
examine it and that it was all there. When police arrived at the
house with a search warrant, Defendant ran. See Neal, 109 N.C.
App. at 687, 428 S.E.2d at 290 (citing State v. Harrison, 93 N.C.
App. 496, 378 S.E.2d 190 (1989)). Following his arrest, he told
Detective Orlando Ortiz-Trinidad that the house belonged to him.
Detective Ortiz-Trinidad found ten kilograms of cocaine by the
water heater in the house's garage. These circumstances were
sufficient to demonstrate Defendant's constructive possession of
the cocaine found at Starcrest Drive on 10 March 2005.
Defendant also argues that the trial court erred by admitting
evidence of hearsay statements made by the confidential informant
to police. The transcript reflects that Defendant objected on grounds of
hearsay when the prosecutor first asked Detective Rendon [w]hat
type of information about Defendant he had obtained from the
confidential informant. The prosecutor explained to the trial
court that he was not submitting what the confidential informant
said for the truth of the matter, just for why this officer acted
the way he did on [10 March 2005]. The court overruled
Defendant's objection, whereupon Detective Rendon testified that
the confidential informant told him that he knew of an individual
known to him as 'Ramon,' that would be selling a large amount of
cocaine by the kilo. The trial court then gave the following
limiting instruction to the jury:
I admitted this testimony, but you are not to
consider it for the truth of the matter
asserted, because the witness is not here in
court to testify . . . .
I'm simply admitting that testimony to
support whatever actions the officers may have
taken subsequent to that. You are to consider
it for that limited purpose only.
The court gave a similar instruction regarding the limited use of
the confidential informant's testimony, as well as the confidential
informant's potential interest in the outcome of the case, in its
final charge to the jury.
With certain exceptions not at issue here, hearsay evidence is
inadmissible under the North Carolina Rules of Evidence. See
Gen. Stat. § 8C-1, N.C. R. Evid. 801, 803 (2005). Our rules define
hearsay as a statement, other than one made by the declarant while
testifying at the trial or hearing, offered into evidence to provethe truth of the matter asserted. N.C. R. Evid. 801(c).
Accordingly, [o]ut-of-court statements that are offered for
purposes other than to prove the truth of the matter asserted are
not considered hearsay. Specifically, statements are not hearsay
if they are made to explain the subsequent conduct of the person to
whom the statement was directed. State v. Young
, 166 N.C. App.
401, 404, 602 S.E.2d 374, 376 (2004) (quotation and emphasis
omitted), disc. review denied
, 359 N.C. 326, 611 S.E.2d 851 (2005).
Here, Defendant notes that he was charged with trafficking in
cocaine by possession. He contends, therefore, that any
statements that tend to connect [him] to the large quantity of
cocaine found [in the house] necessarily address the truth of the
matter asserted. We disagree. As shown by the transcript, the
evidence of the confidential informant's statement was admitted for
the limited purpose of explaining the subsequent conduct of
Detective Rendon. Under N.C. R. Evid. 801(c), the statement was
not hearsay. See id.
at 405, 602 S.E.2d at 376-77. Defendant's
assignment of error is overruled.
In his brief to this Court, Defendant cites at least five
other instances in which the trial court admitted evidence of the
confidential informant's statements to Detectives Rendon and Ortiz-
Trinidad, or in which the detectives testified to facts seemingly
learned from the confidential informant. However, the record
before this Court contains the following assignment of error
corresponding to the argument in Defendant's brief: The Trial
Court erred in testimony about the statements of a confidentialinformant where such statements are inadmissible hearsay.
[T]he scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal. N.C. R. App. P. 10(a). An assignment of error must
direct the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references. N.C. R. App. P. 10(c)(1).
Here, Defendant's assignment of error references only one
instance in which the court allegedly admitted hearsay statements
of the confidential informant; we addressed that ruling above.
Since Defendant failed to properly assign as error the alleged
erroneous admission of hearsay statements by Detectives Rendon and
Ortiz-Trinidad, we must dismiss his attempt to appeal those issues.
N.C. R. App. P. 10(c)(1); State v. Watts
, 172 N.C. App. 58, 68
n.3, 616 S.E.2d 290, 297 n.3 (2005) (dismissing arguments raised on
appeal concerning specific testimony because the defendant's
assignments of error fail[ed] to except to that other testimony),
disc. review denied
, 361 N.C. 179, ___ S.E.2d ___ (2006).
The record on appeal includes additional assignments of error
not addressed by Defendant in his brief to this Court. Under N.C.
R. App. P. 28(b)(6), we deem them abandoned.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***