State v. Ambriz, COA21-674

Docket NºCOA21-674
Citation2022 NCCOA 711
Case DateNovember 01, 2022
CourtCourt of Appeal of North Carolina (US)

2022-NCCOA-711

STATE OF NORTH CAROLINA
v.

GERARDO AMBRIZ, Defendant.

No. COA21-674

Court of Appeals of North Carolina

November 1, 2022


Heard in the Court of Appeals 22 March 2022.

Appeal by defendant from judgment entered 28 May 2021 by Judge Alyson A. Grine in Superior Court, Guilford County Nos. 16CRS67908; 16CRS67909 .

Attorney General Joshua H. Stein, by Assistant Attorney General Caden William Hayes, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for defendant.

STROUD, CHIEF JUDGE

¶ 1 Gerardo Ambriz ("Defendant") appeals from a judgment entered upon jury verdicts finding him guilty of one count of trafficking in methamphetamine by possession, one count of trafficking in methamphetamine by transportation, and one count of conspiracy to traffic in methamphetamine by possession. Defendant argues the State's evidence was insufficient to support his convictions and that he was denied the speedy trial as guaranteed under our state and federal Constitutions. Because

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the State presented sufficient evidence to submit Defendant's charges to the jury, and because the trial court did not err by denying Defendant's speedy trial motions, we conclude the trial court committed no error.

I. Background

¶ 2 The State presented evidence from two law enforcement officers and one of Defendant's co-defendants, who pled guilty and agreed to testify in exchange for a possibly reduced sentence. The State's evidence tended to show that on 6 February 2016, a drug deal involving a trafficking quantity of methamphetamine was scheduled to take place in Greensboro, North Carolina. This deal was prearranged between Mr. Gomez, a police informant, and Mr. Gomez-Macedo, whose street name was "Paco." Paco was connected "to the Atlanta, Georgia, area, [and] knew people in that area that could bring drugs" to Greensboro; he was to provide nearly five kilograms of methamphetamine. On 6 February 2016, the informant and Paco met at a La Fiesta Restaurant in Greensboro. At the restaurant, the informant contacted his handlers with the Greensboro Police Department and worked with Detective Monge, who posed as the buyer, to show Paco $150,000 in "flash cash" to facilitate the deal. "Flash cash" is money managed by individual police departments for the purposes of facilitating these types of transactions, because sellers in transactions of this magnitude often want to observe the money before providing drugs. Detective Monge drove the money to the La Fiesta Restaurant, where the informant and Paco

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observed the money. Shortly afterward, the informant and Paco learned the narcotics had been delayed in Alabama. The evidence indicated the vehicle transporting the narcotics was "broken down" or was experiencing "mechanical issues[,]" but also that the driver was stopping to rest. After it became apparent the deal would not occur that day, the informant and Paco left the La Fiesta Restaurant.

¶ 3 Detective Williams with the Greensboro Police Department testified at trial regarding communications between Defendant and Mr. Reyes, another participant in this deal with connections to the driver, the informant, and Paco. Detective Williams also testified regarding the circumstances of the deal. On 6 February, Mr. Reyes sent Defendant a file with the driver's contact information. Defendant responded and told Mr. Reyes, "cousin, tell them they're going to call him on behalf of Pitufo."[1], [2] Later that evening, Mr. Reyes asked Defendant "Are you coming here, cousin?" He then sent a text message to Defendant at 2:17 a.m. the morning of 7 February and told Defendant "he is here in Alabama, cousin. He's going to stop there and rest." Defendant responded to this message: "It is good, cousin." Defendant then sent Mr. Reyes a Georgia address later in the morning, and Detective Williams did not testify

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about any other text messages of note.

¶ 4 Later on 7 February, when officers began arriving at the La Fiesta in Greensboro, they noted the informant had already arrived. Shortly after arriving, Detective Williams "observed [the] informant, along with [Paco] and two other unidentified Hispanic males" exit the La Fiesta Restaurant. These two individuals were later identified as Mr. Reyes and Defendant. The group left La Fiesta and shortly afterward the driver arrived in a "gray Toyota Prius" registered in Georgia. When the Prius arrived, Defendant and Mr. Reyes got into the Prius while the informant and Paco got into the informant's rental vehicle, a "gold or tan Chevrolet Suburban." These two vehicles then "traveled in tandem or one behind the other, the Suburban leading the way[,]" until they arrived at a "public storage facility" approximately five minutes from the La Fiesta Restaurant where the informant had rented a unit.

¶ 5 The driver testified about the events inside the storage facility. Upon arriving at the storage unit, the driver "backed up the car inside so the cameras wouldn't see, and Leo [Reyes] told the young man, 'Get out and get the drugs out.'" The driver identified the "young man" as Defendant. But Defendant was unable to exit the Prius because the driver "had activated the child locks, and because [Defendant] couldn't get out and [the driver] wanted it to be fast, [the driver] was the one that took the drugs out." After dropping the drugs off at the storage unit, the driver, Reyes, and

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Defendant left and drove to a nearby gas station.

¶ 6 Reyes and Defendant rode to the gas station with the driver inside the Prius. The driver of the Suburban waited at the storage facility for "approximately ten minutes" then drove to the gas station where Reyes and Defendant got into the Suburban. Both vehicles then left the gas station separately, and officers followed the Suburban to another nearby restaurant. While at that restaurant, the informant called the officers, pretending to arrange delivery of the money. Eventually, the driver of the Suburban returned to the storage unit where Defendant and the other participants in the drug deal were arrested.

¶ 7 Defendant was indicted for one count of trafficking in methamphetamine by possession, one count of trafficking in methamphetamine by transport, and one count of conspiracy to traffic in methamphetamine by possession. Defendant was tried three times for these offenses. The first two trials from 3 April 2018 to 6 April 2018 and 19 August 2019 to 26 August 2019 ended in deadlocked juries. Defendant's third trial began on 24 May 2021 and a jury found Defendant guilty on all charges on 28 May 2021. Defendant gave notice of appeal in open court, and a judgment was entered the same day.

¶ 8 The procedural history of this case for purposes of Defendant's speedy trial claim is laid out separately below.

II. Analysis

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¶ 9 Defendant makes two arguments on appeal. First, he contends the trial court erred by denying his motion to dismiss because there was insufficient evidence to support his convictions. Next, he argues the trial court erred by denying his motions to dismiss based upon violations of his right to a speedy trial.

A. Sufficiency of the Evidence

¶ 10 Defendant first argues the State presented insufficient evidence to show he participated in the methamphetamine deal. Defendant made a general motion to dismiss at the close of State's evidence, and therefore we address each of defendant's convictions. See State v. Glisson, 251 N.C.App. 844, 847, 796 S.E.2d 124, 127 (2017) (This Court has "precedent holding that a general motion to dismiss for insufficiency of the evidence preserves all issues regarding the insufficiency of the evidence, even those issues not specifically argued before the trial court[,]" and a general "motion to dismiss require[s] the trial court to consider whether the evidence was sufficient to support each element of each charged offense.").

¶ 11 In ruling on a motion to dismiss:

the trial court must determine whether the State has presented substantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator. If substantial evidence of each element is presented, the motion for dismissal is properly denied. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is immaterial whether the substantial evidence is circumstantial or direct, or both.
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Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. The evidence need only give rise to a reasonable inference of guilt in order for it to be properly submitted to the jury.

State v. Shelman, 159 N.C.App. 300, 304-05, 584 S.E.2d 88, 92 (2003) (quotations, citations, and alterations omitted).

¶ 12 "In determining whether the State has presented sufficient evidence to support a conviction, 'the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.'" Id. at 305, 584 S.E.2d at 92 (quoting State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002)). Any "[c]ontradictions and discrepancies must be resolved in favor of the State ...." Id. (alteration in original) (quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)). "However, '[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.'" State v. Loftis, 185 N.C.App. 190, 196, 649 S.E.2d 1, 6 (2007) (alteration in original) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). On appeal, "[w]hether the State presented substantial evidence of each essential element of the offense is a question of law; therefore,...

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