State v. Galaviz-Torres

• Decision Date: 11 June 2015
• Docket Number: No. 249PA14.,249PA14.
• Citation: 368 N.C. 44,772 S.E.2d 434
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jose Gustavo GALAVIZ–TORRES.

368 N.C. 44

772 S.E.2d 434

STATE of North Carolina

v.Jose Gustavo GALAVIZ–TORRES.

No. 249PA14.

Supreme Court of North Carolina.

June 11, 2015.

Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.

Glenn Gerding for defendant-appellee.

ERVIN, Justice.

Defendant Jose Gustavo Galaviz–Torres was convicted of one count of trafficking in at least 400 grams of cocaine by possession, one count of trafficking in at least 400 grams of cocaine by transportation, and one count of possession of cocaine with the intent to sell or deliver. A unanimous panel of the Court of Appeals reversed defendant's convictions and awarded defendant a new trial. We now reverse the Court of Appeals' decision.

In March 2012, officers of the Charlotte–Mecklenburg Police Department and the Drug Enforcement Administration began a joint investigation into defendant's activities based on information that had been received from a confidential informant indicating that defendant was trafficking in cocaine. On 26 March 2012, investigating officers arranged for the confidential informant to purchase approximately two kilograms of cocaine from defendant in a Taco Bell parking lot. After defendant arrived at the parking lot driving a gray van, the informant met with defendant, observed that the drugs to be purchased were in the vehicle, and contacted Special Agent Jorge Alamillo of the Drug Enforcement Administration, who gave the signal that defendant should be arrested. During a search of the van,¹ investigating officers found a gift bag next to the driver's seat containing three packages of cocaine, the largest of which held a kilogram of that substance.

After having been advised of his Miranda rights, defendant told investigating officers that he had procured the cocaine from an individual named Gavilan, that he paid $32,000 for a kilogram of cocaine, and that cocaine could be found at his residence.² In addition, defendant took investigating officers to the location at which he claimed to have obtained the cocaine found in the van, although a search of the premises in question did not result in the discovery of any controlled substances. Finally, defendant admitted to investigating officers that he had previously sold or delivered nine ounces of cocaine in Gastonia and that, on the day of his arrest, he was supposed to make $2,000 for delivering the cocaine that had been seized from the vehicle that he was driving.

On 2 April 2012, defendant was indicted for trafficking in at least 400 grams of cocaine by possession, trafficking in at least 400 grams of cocaine by transportation, and possession of cocaine with the intent to sell or deliver. The charges against defendant came on for trial at the 20 May 2013 criminal session of the Superior Court, Mecklenburg County, before the trial court and a jury. At trial, defendant testified that he had arrived at the Taco Bell on the date in question to deliver ladders at the request of a man for whom he had performed construction work in the past. Defendant claimed that he had borrowed the van that he was driving, that he did not know that the van contained cocaine, and that the cocaine seized from the van did not belong to him. In addition, defendant denied having made any statements to investigating officers admitting that he had been transporting cocaine on the day in question or that he had been paid to transport cocaine in the past. Although defendant did acknowledge having told investigating officers that there was cocaine at his house, he denied being the owner of the cocaine that was found there.

At the conclusion of the trial, the trial court instructed the jury that, to convict defendant of possession of cocaine with the intent to sell or deliver, the jury had to be satisfied beyond a reasonable doubt:

First, that the Defendant knowingly possessed cocaine.... A person possesses cocaine when he is aware of its presence and has either by himself or together with others both the power and intent to control the disposition or use of that substance.

And second, that the Defendant intended to deliver—intended to sell or deliver the cocaine.

Similarly, the trial court instructed the jury that, to convict defendant of trafficking in at least 400 grams of cocaine by possession, the jury must be satisfied beyond a reasonable doubt:

First, that the Defendant knowingly possessed cocaine. A person possesses cocaine if he is aware of its presence and has either by himself or together with others both the power and intent to control the disposition or use of that substance.

And second, that the amount of cocaine which the Defendant possessed was 400 grams or more.

Finally, the trial court instructed the jury that, to convict defendant of trafficking in at least 400 grams of cocaine by transportation, the jury had to be satisfied beyond a reasonable doubt:

First, that the Defendant knowingly transported cocaine from one place to another.

And second, that the amount of cocaine which the Defendant transported was 400 grams or more.

Although the trial court instructed the jury concerning the concepts of actual and constructive possession, the court clearly indicated that both forms of possession required the jury to find beyond a reasonable doubt that the alleged possessor had to be "aware of its presence" and exercise control over it. The trial court further instructed the jury that close proximity to the substance that defendant was charged with possessing did "not by itself permit an inference that the Defendant was aware of its presence" or had the power or intent to control its disposition or use. Defendant's trial counsel did not object to any of the trial court's instructions or request that any additional instructions be given.

On 24 May 2013, the jury returned a verdict finding defendant guilty as charged. After consolidating defendant's convictions for possession of cocaine with the intent to sell or deliver and trafficking in at least 400 grams of cocaine by possession for judgment, the trial court entered a judgment sentencing defendant to a term of 175 to 222 months imprisonment and requiring defendant to pay a $250,000 fine. In addition, the trial court entered a judgment sentencing defendant to a consecutive term of 175 to 222 months imprisonment and the payment of a $250,000 fine based upon his conviction for trafficking in at least 400 grams of cocaine by transportation. Defendant noted an appeal to the Court of Appeals from the trial court's judgments.

On appeal, defendant argued that the trial court had committed plain error by failing to adequately instruct the jury that the State had to prove beyond a reasonable doubt that he knew that he had possessed and transported cocaine. State v. Galaviz–Torres, ––– N.C.App. ––––, 763 S.E.2d 17, 2014 WL 2993850, at *2 (2014) (unpublished). In reversing the trial court's judgments and awarding defendant a new trial, the Court of Appeals held, in reliance on its prior decision in State v. Coleman, ––– N.C.App. ––––, 742 S.E.2d 346, disc. rev. denied, 367 N.C. 271, 752 S.E.2d 466 (2013), that the trial court was required to instruct the jury in accordance with footnote four to North Carolina Pattern Jury Instructions—Criminal 260.17 (drug trafficking by possession) [N.C.P.I.Crim. 260.17] and Criminal 260.30 (drug trafficking by transportation) [N.C.P.I.Crim. 260.30] because defendant contended at trial that he did not know that he possessed a controlled substance. Galaviz–Torres, 2014 WL 2993850, at *3–4. The Court of Appeals further concluded that the failure to give the instructions in footnote four in this case constituted plain error, id. at *5, despite the presence of defendant's " ‘overwhelming and uncontroverted evidence of guilt.’ " Id. at *4 (quoting Coleman, –––N.C.App. at ––––, 742 S.E.2d at 352 ). We reverse the decision of the Court of Appeals.

"Felonious possession of a controlled substance has two essential elements. The substance must be possessed and the substance must be knowingly possessed." State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985) (citation and quotation marks omitted). A presumption that the defendant has the required guilty knowledge exists in the event that the State makes a prima facie showing that the defendant has committed a crime, such as trafficking by possession, trafficking by transportation, or possession with the intent to sell or deliver, that lacks a specific intent element. See State v. Elliott, 232 N.C. 377, 378, 61 S.E.2d 93, 95 (1950). However, when the defendant denies having knowledge of the controlled substance that he has been charged with possessing or transporting, the existence of the requisite guilty knowledge becomes "a determinative issue of fact" about which the trial court must instruct the jury. State v. Boone, 310 N.C. 284, 294, 311 S.E.2d 552, 559 (1984), overruled on other grounds by State v. Oates, 366 N.C. 264, 267, 732 S.E.2d 571, 573–74 (2012) ; see also State v. Nobles, 329 N.C. 239, 244, 404 S.E.2d 668, 671 (1991) (stating that, "when the defendant introduces evidence of lack of guilty knowledge the court must charge on it"); Elliott, 232 N.C. at 378–79, 61 S.E.2d at 95 (same). As a result, given that defendant denied having knowingly possessed the cocaine found in the van that he was driving, the ultimate issue raised by the State's challenge to the Court of Appeals' decision is whether the trial court's instructions, which consisted of a recitation of N.C.P.I.Crim. 260.17 and N.C.P.I.Crim. 260.30 without the material contained in footnote four, adequately informed the jury that, in order to convict defendant of the offenses with which he had been charged, it must find beyond a reasonable doubt that defendant actually knew that he had cocaine in his possession.

In Boone, the defendant was convicted of possessing a controlled substance after investigating officers discovered marijuana inside a duffel bag found in the trunk of the defendant's...