STATE OF NORTH CAROLINA
v
.
Montgomery County
No. 05 CRS 51284
AURTURA PEREZ REYES,
aka ORLANDO MEDINA DEJESUS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General J. Joy Strickland, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant.
JACKSON, Judge.
Aurtura Perez Reyes (“defendant”) appeals the denial of his
motion to dismiss charges and motion to suppress evidence. For the
reasons stated below, we affirm.
At approximately 8:00 p.m. on 20 July 2005, Sergeant Randy
Binns (“Sergeant Binns”), Sergeant Jeff Dorsett (“Sergeant
Dorsett”), and Officer Derek Burleson (“Officer Burleson”) were
patrolling a known high drug activity area when a burgundy Crown
Victoria pulled out of a restaurant parking lot in front of them,
causing them to have to brake to avoid an accident. The officers
were in an unmarked Toyota 4Runner. The officers also noticed that
the car's windows appeared to be tinted darker than legallyallowed. The officers turned around in the restaurant parking lot
and followed the car into a residential neighborhood where they
pulled it over to initiate a traffic stop.
When the car stopped, it blocked a driveway. Sergeant Dorsett
and Officer Burleson exited their vehicle and approached the
passenger side of the Crown Victoria while Sergeant Binns radioed
to request information about the vehicle. Before he was able to
determine the registration of the vehicle, Sergeant Binns asked the
other officers to have the car pull forward slightly so that it no
longer blocked the driveway. The car did so, then “it was off to
the races.” Sergeant Dorsett and Officer Burleson returned to the
4Runner and pursued the car to a dead end, at which point defendant
and the driver jumped out and ran towards the woods. Sergeant
Binns and Officer Burleson pursued the driver on foot, while
Sergeant Dorsett went after defendant.
Sergeant Dorsett caught defendant but had difficulty
retraining him and called for assistance. Sergeant Binns abandoned
his pursuit of the driver to assist Sergeant Dorsett with
apprehending defendant. Sergeants Dorsett and Binns eventually
handcuffed defendant and placed him in the back of a patrol car
that had arrived on the scene. The driver of the burgundy Crown
Victoria was not apprehended that day.
Sergeants Dorsett and Binns then searched the Crown Victoria.
From the driver's area, Sergeant Binns recovered a receipt showing
the date of the incident which listed a deck of playing cards, and
an unopened deck of playing cards. Sergeant Dorsett found a redduffle bag in the floor behind the driver's seat. The bag
contained what was later shown to be a kilo of cocaine.
Defendant was arrested on various drug charges. At the time
of his arrest, defendant represented that his name was Orlando
DeJesus, but signed a Miranda rights waiver form as Orlando S.
Medina He was indicted by a Montgomery County Grand Jury on 6
September 2005 as “John Doe, AKA Orlando Medina DeJesus” of felony
trafficking in cocaine by possession of more than 400 grams, felony
trafficking in cocaine by transporting more than 400 grams, and
felony conspiracy to traffick in cocaine by transporting more than
400 grams. He was later discovered to be Aurtura Perez Reyes and
indicted under that name on 17 October 2005.
On 2 October 2006, defendant brought a motion to suppress
evidence seized as a result of the warrantless seizure of his
person. The motion was heard on 8 January 2007 and denied by order
rendered at the hearing and entered 18 January 2007. Defendant's
jury trial in this matter began 9 January 2007. He was tried on
charges of possession with intent to sell and deliver cocaine,
trafficking in cocaine by possession, and trafficking in cocaine by
transportation. At the close of the State's evidence, the court
granted defendant's motion to dismiss the charge of trafficking in
cocaine by transportation and the State elected not to proceed on
the possession with intent to sell and deliver charge. Defendant
again moved the court to dismiss the trafficking by possession
charge at the close of all the evidence, which was denied. On 10 January 2007, the jury returned a verdict of guilty for
the charge of trafficking in cocaine by possession. The court
sentenced defendant to a term of 175 to 219 months in the custody
of the North Carolina Department of Correction. Defendant appeals
the denial of his motion to dismiss the charge of trafficking of
cocaine by possession and the denial of his motion to suppress
evidence as the result of a warrantless seizure. For the reasons
stated below, we affirm.
In his first assignment of error, defendant argues that the
trial court erred in denying his motion to dismiss the charge of
trafficking in cocaine by possession because the State failed to
present sufficient evidence that defendant possessed the cocaine.
We disagree.
This Court reviews a criminal defendant's motion to dismiss
charges to determine “whether there is substantial evidence (1) of
each essential element of the offense charged, or of a lesser
offense included therein, and (2) of defendant's being the
perpetrator of such offense.” State v. Powell, 299 N.C. 95, 98,
261 S.E.2d 114, 117 (1980).
The evidence is to be considered in the
light most favorable to the State; the State
is entitled to every reasonable intendment and
every reasonable inference to be drawn
therefrom; contradictions and discrepancies
are for the jury to resolve and do not warrant
dismissal; and all of the evidence actually
admitted, whether competent or incompetent,
which is favorable to the State is to be
considered by the court in ruling on the
motion.
Id. at 99, 261 S.E.2d at 117 (citing State v. Thomas, 296 N.C. 236,
250 S.E.2d 204 (1978); State v. McKinney, 288 N.C. 113, 215 S.E.2d
578 (1975)). Substantial evidence has been defined as “such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980) (citing Thompson v. Board of Education, 292
N.C. 406, 233 S.E.2d 538 (1977); Comr. of Insurance v. Rating
Bureau, 292 N.C. 70, 231 S.E.2d 882 (1977)). If the State has
presented such evidence, the motion is properly denied. Powell,
299 N.C. at 98, 261 S.E.2d at 117 (citations omitted).
Defendant was tried pursuant to North Carolina General
Statutes, section 90-95(h)(3) which states in pertinent part:
Any person who . . . possesses 28 grams or
more of cocaine . . . shall be guilty of a
felony, which felony shall be known as
“trafficking in cocaine” and if the quantity
of such substance or mixture involved:
. . . .
c. Is 400 grams or more, such person shall be
punished as a Class D felon and shall be
sentenced to a minimum term of 175 months and
a maximum term of 219 months in the State's
prison and shall be fined at least two hundred
fifty thousand dollars ($ 250,000).
N.C. Gen. Stat. § 90-95(h)(3) (2005). Therefore, the State in this
case was required to present substantial evidence that defendant
(1) had possession of a substance, (2) which substance proved to be
cocaine, and (3) the substance weighed in excess of twenty-eight
grams. Defendant does not argue that the substance was not cocaine
weighing more than twenty-eight grams. The State may prove that a defendant possessed contraband
materials by either actual or constructive possession. State v.
Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). Actual
possession arises when a person has the substance on his person, is
aware of its presence, and “either by himself or together with
others he has the power and intent to control its disposition or
use.” State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186,
192 (2002) (citing State v. Crawford, 104 N.C. App. 591, 600, 410
S.E.2d 499, 504 (1991)). Constructive possession arises when a
person does not have the substance on his person, but nonetheless
“'has the intent and capability to maintain control and dominion
over'” the substance. State v. Matias, 354 N.C. 549, 552, 556
S.E.2d 269, 270 (2001) (quoting State v. Beaver, 317 N.C. 643, 648,
346 S.E.2d 476, 480 (1986)). Constructive possession may be
inferred when the substance is found in an area under the exclusive
control of the person. See State v. Harvey, 281 N.C. 1, 12, 187
S.E.2d 706, 714 (1972). However, if the person does not have
exclusive possession of the place where the substance is found, the
State must show additional incriminating circumstances before
constructive possession may be inferred. State v. Davis, 325 N.C.
693, 697, 386 S.E.2d 187, 190 (1989).
In the instant case, defendant did not have actual possession;
the cocaine was not found on defendant's person; and defendant was
not the driver of the car. Therefore, the State was required to
present evidence of additional incriminating circumstances to allow
an inference of constructive possession. The State presented the following circumstantial evidence: (1)
the configuration of the front seat was such that the passenger
could reach from the front passenger seat to the backseat; (2)
defendant was in a car with darkly tinted windows; (3) defendant
was in a high drug activity area; (4) defendant fled, then resisted
arrest when caught; and (5) defendant gave a false name when
arrested, and, in fact, gave multiple names. Further, at the time
the cocaine was found, officers did not know that defendant was not
the owner of the car. From these facts, the jury could infer that
defendant knew the cocaine was behind the driver's seat and that he
intended to exercise control over it with the driver.
Defendant's evidence also is to be considered in the light
most favorable to the State when determining the sufficiency of
evidence on a motion to dismiss. See Powell, 299 N.C. at 99, 261
S.E.2d at 117. Defendant testified that he left his house with the
driver at 2:00 p.m. and that he was supposed to be at work at 5:00
p.m. The incident occurred at approximately 8:00 p.m. From this,
the jury could infer that defendant would not have gone with the
driver, knowingly missing work, unless he knew about the cocaine
and intended to exercise control over it with the driver.
For these reasons, the State presented substantial evidence
from which the jury could find beyond a reasonable doubt that
defendant constructively possessed cocaine weighing more than 400
grams. Therefore, defendant's motion to dismiss the charge of
trafficking in cocaine by possession was properly denied. This
assignment of error is overruled. In defendant's second assignment of error, he argues that the
trial court erred in denying his motion to suppress evidence
because there was no reasonable, articulable suspicion or probable
cause to believe that defendant had committed or was about to
commit a crime to justify his seizure. He contends that although
the officers could have legally stopped and arrested the driver,
the officers had no grounds for believing that defendant had
committed a crime in order to justify stopping and seizing him in
violation of the Fourth Amendment protections against unreasonable
seizure. We disagree.
Defendant does not challenge any of the trial court's findings
of fact. When a defendant does not assign error to any findings of
fact, those findings are presumed to be supported by competent
evidence, State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203,
206, disc. rev. denied, appeal dismissed, 361 N.C. 177, 640 S.E.2d
59 (2006) (citations omitted), and are conclusive and binding on
appeal. State v. Jacobs, 162 N.C. App. 251, 254, 590 S.E.2d 437,
440 (2004) (citing Static Control Components, Inc., v. Vogler, 152
N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002)). Therefore, “our
review is limited to the question of whether the trial court's
findings of fact . . . support its conclusions of law and
judgment.” Pickard, 178 N.C. App. at 334, 631 S.E.2d at 206
(citations omitted).
An officer may lawfully stop a person when he “observes
unusual conduct which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot” in order toinvestigate. Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911
(1968). Pursuant to an investigatory stop of a motor vehicle, an
officer may be authorized to detain the driver and all passengers
to investigate. See State v. Stone, 179 N.C. App. 297, 303, 634
S.E.2d 244, 248 (2006) (holding officer had reasonable suspicion of
two traffic violations and lawfully conducted a brief detention of
the occupants of the vehicle).
North Carolina General Statutes, section 14-223 provides:
“[i]f any person shall willfully and unlawfully resist, delay or
obstruct a public officer in discharging or attempting to discharge
a duty of his office, he shall be guilty of a Class 2 misdemeanor.”
N.C. Gen. Stat. § 14-223 (2005). “Flight from a lawful
investigatory stop 'may provide probable cause to arrest an
individual for violation of G.S. 14-223.'” State v. Swift, 105
N.C. App. 550, 554, 414 S.E.2d 65, 68 (1992) (quoting State v.
Lynch, 94 N.C. App. 330, 334, 380 S.E.2d 397, 399 (1989)).
“[W]hen a police officer has effected a lawful custodial
arrest of an occupant of a vehicle, the officer may, as a
contemporaneous incident of that arrest, conduct a search of the
passenger compartment of the vehicle extending to the contents of
containers found within the passenger compartment.” State v.
Cooper, 304 N.C. 701, 703-04, 286 S.E.2d 102, 103-04 (1982) (citing
New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768 (1981)).
Evidence so obtained is competent against all occupants. See State
v. Faison, 17 N.C. App. 200, 202, 193 S.E.2d 334, 336 (1972), cert.
denied, 283 N.C. 258, 195 S.E.2d 690 (1973) (“Evidence obtainedpursuant to the search of an automobile with the permission of the
one in possession is competent against him and the occupants.”)
(citing State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965))
(emphasis added).
Applying these legal principles, the trial court concluded as
a matter of law: (1) the officers had the authority to make an
investigatory stop of the Ford Crown Victoria; (2) because the
investigatory stop was legal, defendant had no right to resist;
(3) defendant's flight from a lawful investigatory stop contributed
to probable cause that he was in violation of section 14-223; (4)
with probable cause, the officers could arrest defendant for
resisting arrest; (5) pursuant to the arrest, the officers had the
right to search the passenger portion of the Ford, including any
container within the passenger compartment; and (6) defendant's
motion to suppress should be denied.
Defendant does not argue that the initial stop of the vehicle
was illegal. Further, this conclusion of law is supported by the
trial court's extensive recitation of the facts surrounding the
initial stop of the car. Because the stop was legal, the trial
court correctly concluded that defendant had no right to resist.
The trial court found as fact that defendant fled the scene on
foot. This finding supports its conclusions with respect to
“resisting arrest.” Although the trial court referred to this
statute as “resisting arrest,” “[t]he conduct proscribed . . . is
not limited to resisting an arrest but includes any resistance,
delay, or obstruction of an officer in the discharge of hisduties.” Lynch, 94 N.C. App. at 332, 380 S.E.2d at 398. When the
driver and defendant fled the scene, they caused the officers'
investigation of the suspected traffic violations, a discharge of
their duties, to be obstructed or delayed. Although defendant, as
a passenger in the car, may not have had a choice when the car
first drove off, his subsequent flight on foot further delayed or
obstructed the officers' investigation in violation of section 14-
223.
In support of its final conclusions of law, the trial court
made findings of fact with respect to defendant's detention, the
search of the car, and the evidence recovered pursuant to that
search.
Because the trial court's decision to deny defendant's motion
to suppress was based on validly supported conclusions of law, the
trial court correctly denied defendant's motion to suppress.
Therefore, this assignment of error is overruled.
For the foregoing reasons, we affirm the denial of defendant's
motion to dismiss the charge of trafficking in cocaine by
possession and motion to suppress evidence.
Affirmed.
Judges TYSON and ARROWOOD concur.
Report per Rule 30(e).
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