State Of North Carolina v. Capote, COA0 9-12 04
| Decision Date | 03 August 2010 |
| Docket Number | No.51241,No.51237,No.51243,No.51242,NO. COA0 9-12 04,No.51238,No.08 CRS 51236,No.51240,No.51239,COA0 9-12 04,08 CRS 51236,51237,51238,51239,51240,51241,51242,51243 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. MIGUEL JIMINEZ CAPOTE, MARTIN CRUZ |
Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong and Special Deputy Attorney General Joseph E. Herrin, for the State.
Bryan Gates for Defendant Miguel Jiminez Capote; and Jon W. Myers for Defendant Martin Cruz.
Miguel Jiminez Capote (Capote) and Martin Cruz (Cruz) (collectively Defendants) were convicted of trafficking in marijuana by possession and by transportation, possession with intent to sell or deliver marijuana, and maintaining a dwelling for the keeping or sale of a controlled substance. Defendants were each given consolidated sentences of twenty-five to thirty months in prison for the charges of trafficking in marijuana by transportation, possession with intent to sell or deliver marijuana, and maintaining a dwelling for the keeping or sale of acontrolled substance, to be served consecutively with a sentence of twenty-five to thirty months in prison for trafficking in marijuana by possession.
The State presented evidence at trial tending to show that Detective Gallegos of the Fayetteville Police Department identified a suspicious package at a Federal Express (FedEx) facility in Fayetteville on 31 May 2008. After obtaining a search warrant, Detective Gallegos opened and inspected the package, which contained approximately thirty pounds of marijuana. The Hoke County Sheriff's Department (the Sheriff's Department) was contacted to set up a controlled delivery of the package to the delivery address of 210 Little Mexico Drive, Raeford, North Carolina.1
Detective Kivett of the Sheriff's Department, dressed as a FedEx delivery driver, arrived at the mobile home located at 210 Little Mexico Drive on 2 June 2008 to deliver the package, and was approached by Cruz. Before approaching Detective Kivett, Cruz had been standing in the doorway of a mobile home identified as 225 Little Mexico Drive. After handing Detective Kivett a slip of paper on which the tracking number of the package was written, Cruz accepted the package. Cruz then turned in the direction of the mobile home at 225 Little Mexico Drive. Detective Burchfield ofthe Sheriff's Department had also observed Capote at the entrance of the mobile home located at 225 Little Mexico Drive.
Captain Pierce, and other members of the Sheriff's Department, later entered an open door of the mobile home at 225 Little Mexico Drive and found Defendants in the living room area. Cruz was lying on a couch near the kitchen wall and Capote was sitting in a chair across the room. Detective Burchfield testified that the law enforcement team did not find anyone else in the mobile home. The FedEx package that Cruz had accepted was found by the Sheriff's Department in a corner behind the couch, wrapped in black plastic bags.
Members of the Sheriff's Department searched both of the mobile homes at 210 and 225 Little Mexico Drive, a Nissan pickup truck (the Nissan truck) parked at 225 Little Mexico Drive, and two cell phones. A drug canine did not alert to the presence of narcotics during the search of 210 Little Mexico Drive. During the search of 225 Little Mexico Drive, no items were found indicating that anyone was living at that mobile home on a long-term basis. Also, the mobile home at 225 Little Mexico Drive did not have water or electricity service. The mobile home did contain miscellaneous furniture, including a couch, a dresser/chest of drawers, a chair, a mattress, sandwich bags, fake social security cards, "drug paraphernalia," and a purported picture of Capote. Hoke County tax records showed that neither Capote nor Cruz owned the real property located at 225 Little Mexico Drive.
A search of the Nissan truck uncovered the following items:
Cruz's wallet, his unofficial North Carolina identification card, a pocket calendar/notebook with Cruz's name on it, a cell phone, and traffic citations issued earlier to both Defendants when they had been driving the Nissan truck. The Nissan truck was registered to Cesar Jimenez Hernandez.
Records for the cell phone found in the Nissan truck, and another cell phone found in Capote's pocket, showed several calls between the two phones and to common telephone numbers. Neither Defendant was the registered subscriber, or owner, of either cell phone. However, a slip of paper in Cruz's wallet referenced one phone's number with the notation "Martin," and the name "on [the other] phone" was "Miguel." Telephone company cell tower site information also showed that both phones were used in the vicinity of Little Mexico Drive on 31 May 2008, the scheduled delivery date for the package containing approximately thirty pounds of marijuana.
The State also offered testimony regarding a 29 May 2008 package received by a FedEx facility in Raeford. That package had been shipped via a third party from Alton, Texas to a "Miguel Lopez" at 211 Little Mexico Drive in Raeford. The package contained dumbbells and approximately three pounds of marijuana. Detective Burchfield searched the mobile home located at 211 Little Mexico Drive and questioned an occupant, but found no evidence of drug activity. However, Detective Burchfield saw the Nissan truck parked in front of the mobile home at 225 Little Mexico Drive, and observed Capote sitting in the passenger seat. A slip of paperwith the tracking number of the 29 May 2008 package was later found inside the Nissan truck on 2 June 2008.
Defendants did not present any evidence at trial.
Defendants argue that the trial court erred in denying their motions to dismiss the charges for insufficient evidence at the close of the State's evidence and at the close of all the evidence. "'This Court reviews the denial of a motion to dismiss for insufficient evidence de novo.'" State v. Wilkerson, _ N.C. App. _, _, 675 S.E.2d 678, 680 (2009) (quoting State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008)). "A defendant's motion to dismiss is properly denied when '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. Harrington, 171 N.C. App. 17, 24, 614 S.E.2d 337, 344 (2005) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996) (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). "The evidence can be direct or circumstantial, but must give rise to a reasonable inference of guilt in order to withstand the motion to dismiss." State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504 (2003) (citing State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)). "When ruling on a motion to dismiss for insufficient evidence, thetrial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor." State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594
(2009) (citing State v. McCullers, 341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995)). "'Any contradictions or discrepancies in the evidence are for resolution by the jury.'" Harrington, 171 N.C. App. at 24, 614 S.E.2d at 344 (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). "[A] motion to dismiss should be allowed where the facts and circumstances warranted by the evidence do no more than raise a suspicion of guilt or conjecture since there would still remain a reasonable doubt as to defendant's guilt." Stone, 323 N.C. at 452, 373 S.E.2d at 433 (citations omitted).
Cruz argues that the trial court erred in denying his motion to dismiss for insufficient evidence of this charge because the State failed to present evidence sufficient to show that Cruz "knowingly possessed and transported marijuana." Trafficking in marijuana by possession and by transportation requires the State to prove that the substance was knowingly possessed. See N.C. Gen. Stat. § 90-95(h)(1) (2009) knowing possession of the controlled substance and 2) possession with intent to sell or deliver it.'" State v. Hyatt, 98 N.C. App. 214, 216, 390 S.E.2d 355, 357 (1990) (citation omitted).
Possession may be actual or constructive. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). "When the defendant does not have actual possession, but has the power and intent to control the use or disposition of the substance, he is said to have constructive possession." Baldwin, 161 N.C. App. at 391, 588 S.E.2d at 504-05 (citing State v. Butler, 356 N.C. 141, 146, 567 S.E.2d 137, 140 (2002)). Constructive possession is determined by the totality of the circumstances. See State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986) ( ).
"The defendant may have the power to control either alone or jointly with others." Miller, 363 N.C. at 99, 678 S.E.2d at 594 (citing State v. Fuqua, 234 N.C. 168, 170-71, 66 S.E.2d 667, 668 (1951)).
When narcotics "are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and...
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