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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 April 2007
STATE OF NORTH CAROLINA
LENIN JAVIER FLORES-MATAMOROS
Appeal by defendant from judgments entered 12 January 2006 by
Judge Michael E. Helms in Guilford County Superior Court. Heard in
the Court of Appeals 21 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Dahr Joseph Tanoury, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant appellant.
Defendant appeals from a jury verdict of guilty of one count
of trafficking by transporting 400 grams or more of cocaine, one
count of trafficking by possession of 400 grams or more of cocaine,
and one count of conspiracy to traffick cocaine by possession. We
determine there was no prejudicial error.
Lenin Javier Flores-Matamoros (defendant) was indicted for
trafficking in cocaine by transporting, trafficking in cocaine by
possession, and conspiracy to traffick in cocaine. The case was
tried before a jury at the 2 January 2006 Criminal Session of
Guilford County Superior Court. The State presented evidence at trial which tended to show the
following: Prior to defendant's arrest on the evening of 9 February
2005, Detective H. N. Sampson observed a person driving a flatbed
truck to a Mayfair Avenue residence, which was under surveillance.
The driver of the truck was Melvin Marquez. Melvin Marquez lived
with defendant in an apartment at 3806 Moseby Drive. Items were
removed from the truck and taken inside the residence. Police
stopped the truck and discovered three kilograms of cocaine and
$37,000 in cash. The cocaine was hidden on the back of the truck in
hollowed out sections of chip board. It was Sampson's experience,
as a law enforcement officer, that drug dealers keep drugs at their
residences, or stash houses, in addition to their vehicles. The
truck was registered to Flavian Pena (Pena). Melvin Marquez was
placed into custody and Detective Sampson directed other officers
to take up positions around Marquez's apartment on Moseby Drive.
Officer Snaden was watching the apartment on Moseby Drive
because he was aware that a search warrant was going to be served
for the apartment. He was looking for any kind of activity that
would indicate that someone had been contacted at the apartment and
would attempt to move contraband out of it before officers had a
chance to get there with the search warrant. As Officer Snaden was
watching the apartment, a man stuck his head out of the apartment
door and looked around. Soon thereafter, a Toyota 4Runner pulled
up in front of the apartment. The driver got out and met the man
who had earlier stuck his head out of the apartment door. Both menwalked into the apartment. Detective Snaden also observed someone
in the front passenger seat of the 4Runner remain in the vehicle.
About five to ten minutes after the men went inside the
apartment, a man returned to the 4Runner, carrying a large plastic
Tupperware-type container. The man placed the container in the
backseat of the 4Runner. The same man then walked back to the
apartment and stayed inside for several minutes. Then, both men
came out of the apartment, with one carrying a small backpack.
They placed some items in the backseat. During the activity by the
men, the female passenger remained inside the vehicle. Then, one
man got in the front driver's seat, with the other sitting in back
behind the front-seat passenger.
Detective Snaden radioed other officers and requested them to
stop the vehicle. Officer Richardson of the Greensboro Police
Department participated in the investigation and conducted the
traffic stop. After the stop, the driver agreed to a search of the
vehicle. The search revealed about $2,500 cash hidden inside socks
in the Tupperware container, a kilogram of cocaine, four smaller
baggies of white powder, and a white plastic bag with six bundles
of currency in the trunk area totaling $11,241. The officers also
seized $3,621 from the female passenger, $711 from defendant's
wallet, $640 from the other male's wallet, and $495 was found in
the blue backpack. Defendant and the other vehicle occupants were
arrested and processed.
The driver of the Toyota 4Runner, Wuilfredy Vides (Vides),
testified against defendant in this matter. Vides stated that on9 February 2005, he learned that his brother, Melvin Marquez had
been arrested in Greensboro. Vides and his girlfriend drove to
Greensboro to try and get his brother out of jail. Defendant told
Vides about some drugs he had because they thought the drugs could
be used to get Melvin Marquez out of jail. Vides testified that
both he and defendant placed some cocaine into the container prior
to Vides placing it in the 4Runner. Defendant told Vides that
defendant got the brick of cocaine from Pena.
Detective Kevin Cornell testified that defendant's apartment
appeared to be used as a stash house where large amounts of drugs
were stored in anticipation of sale. Upon execution of a search
warrant, officers discovered substances they believed to be cocaine
and marijuana. Also found was $3,900 in U.S. currency, rolling
paper, and numerous cigarette lighters.
The multi-agency investigation that led to the arrest of
defendant began about six months prior to 9 February 2005. The
focus of the investigation initially was on Pena. The investigation
revealed that Pena rented two storage units at American Flag
storage facility, about one to one and a half miles from Melvin
Marquez and defendant's residence. Upon execution of a search
warrant for the units, officers located items used to manufacture
drugs, along with a drug stash compartment similar to the chip
board stash compartment on the truck Marquez was driving.
Underneath the chip board, officers found 43 kilograms of cocaine,
and approximately $280,000 in cash. Officers also found digital
scales, a box of Foodsaver bags, notes, permanent markers, and avacuum sealer. The "white powder" and kilos seized from the 4Runner
and storage units were determined to be cocaine hydrochloride.
Doreen Huntington, a latent fingerprint examiner for the Guilford
County Sheriff's Department, conducted fingerprint examinations of
the evidence and was of the opinion that defendant's fingerprints
were on a Diesel shoe box that was seized from Pena's storage unit.
Defendant's thumb and fingerprints were also determined to be on a
potato chip bag and light box also seized from the storage unit.
Defendant admitted that he had visited the storage facility.
The jury found defendant guilty of all charges. Defendant
Defendant contends the trial court erred in allowing evidence
of (1) the drug seizure at the storage unit and (2) the seizure of
drugs from Melvin Marquez. Specifically, defendant asserts that
the evidence admitted by the court violated Rule of Evidence 404(b)
and was not relevant. We disagree.
Rule 404(b) of the North Carolina Rules of Evidence provides:
[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). Generally, this rule
is one of inclusion of relevant evidence, so long as its probativevalue serves more than to show an individual's criminal propensity
or disposition. State v. Summers, ___ N.C. App. ___, ___, 629
S.E.2d 902, 906, appeal dismissed, disc. review denied, 360 N.C.
653, 637 S.E.2d 192 (2006). We review a trial court's determination
to admit evidence under Rule 404(b) for an abuse of discretion. Id.
at ___, 629 S.E.2d at 907.
In the instant case, the trial court did not abuse its
discretion. Even if we presume error, we are not persuaded that
such error would have prejudiced defendant, given the other
evidence presented in this case. State v. Calvino, ___ N.C. App.
___, ___, 632 S.E.2d 839, 843 (2006). There was substantial
evidence from Vides about defendant's involvement regarding the
cocaine. For example, defendant was living in the apartment where
the cocaine was located. Vides testified that both he and
defendant placed some cocaine into the container which was
eventually taken to the 4Runner. Then, defendant got into the
4Runner which was later stopped by officers who found cocaine
during a search. We also determine that the evidence was relevant
and the probative value was not substantially outweighed by unfair
prejudice. Accordingly, we disagree with defendant.
Defendant contends the trial court erred by denying his motion
to dismiss at the close of evidence. Specifically, defendant
asserts that there was no evidence whatsoever that defendant
substantially moved or transported the cocaine. We disagree. A motion to dismiss is properly denied if there is substantial
evidence (1) of each essential element of the offense charged and
(2) that defendant is the perpetrator of the offense. State v.
Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. State v. Franklin,
327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). When ruling on a
motion to dismiss, all of the evidence should be considered in the
light most favorable to the State, and the State is entitled to all
reasonable inferences which may be drawn from the evidence. State
v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
The North Carolina General Statutes provide that [a]ny person
who ... transports ... 28 grams or more of cocaine and any salt,
isomer, salts or isomers, compound, derivative, or preparation
thereof ... shall be guilty of a felony, which felony shall be
known as 'trafficking in cocaine' ... . N.C. Gen. Stat. § 90-
95(h)(3) (2005). 'A conviction for trafficking in cocaine by
transportation requires that the State show a substantial
movement.' State v. Manning, 139 N.C. App. 454, 467, 534 S.E.2d
219, 227 (2000) (citations omitted), aff'd, 353 N.C. 449, 545
S.E.2d 211 (2001). 'Our courts have determined that even a very
slight movement may be real or substantial enough to constitute
transportation depending upon the purpose of the movement and the
characteristics of the areas from which and to which the contraband
is moved.' Id. In the instant case, we determine the trial court did not err
by denying defendant's motion to dismiss. Vides testified that
both he and defendant placed some cocaine inside the container.
Moreover, although Vides testified he carried the container to the
4Runner, defendant stated he carried it to the 4Runner. Then,
defendant, Vides, and Vides' girlfriend left defendant's apartment
in the 4Runner which was subsequently stopped by officers and the
cocaine was found in the 4Runner. In the light most favorable to
the State, this is sufficient evidence for a reasonable mind to
determine that defendant transported the cocaine. Accordingly, we
disagree with defendant.
Defendant contends the trial court erred by instructing the
jury on flight. We disagree.
There must be some evidence reasonably supporting the theory
that a defendant fled after the commission of the crime charged
before a trial judge may instruct the jury on defendant's alleged
flight. State v. Levan
, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-
34 (1990). Mere evidence that defendant left the scene of the
crime is not enough to support an instruction on flight. There
must also be some evidence that defendant took steps to avoid
apprehension. State v. Blakeney
, 352 N.C. 287, 314, 531 S.E.2d
799, 819 (2000) (citation omitted), cert. denied
, 531 U.S. 1117,
148 L. Ed. 2d 780 (2001).
In the instant case, the trial court's instruction on flight
was proper. There was sufficient evidence by which the jury couldreasonably infer that defendant was fleeing before the police
arrived at his apartment. For example, defendant knew that his
housemate, Melvin Marquez, had been arrested on drug charges.
Vides, Marquez's brother, came from out of town to defendant's
apartment. Some items were placed in the 4Runner, including
defendant's clothes, and defendant got in the 4Runner with Vides
and Vides' girlfriend and drove off. Defendant's clothes, large
amounts of money, and cocaine were found in the 4Runner during a
search of the vehicle. Accordingly, we disagree with defendant.
No prejudicial error.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***