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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-267


Filed: 6 March 2007


         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.

    WYNN, Judge.

    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 Administration (DEA).
    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 N.C. 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. See 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.
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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