State v. Diaz

• Decision Date: 12 August 1986
• Docket Number: No. 30PA86,30PA86
• Citation: 317 N.C. 545,346 S.E.2d 488
• Parties: STATE of North Carolina v. Bienvenido DIAZ.
• Court: North Carolina Supreme Court

Page 488

346 S.E.2d 488

317 N.C. 545

STATE of North Carolina v. Bienvenido DIAZ.

No. 30PA86.

Supreme Court of North Carolina.

Aug. 12, 1986.

Lacy H. Thornburg, Atty. Gen., by Joan H. Byers, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant-appellee.

BRANCH, Chief Justice.

The State assigns as error the decision of the Court of Appeals that the State failed to produce substantial evidence that the crime charged had been committed and that the offense was committed by defendant.

[U]pon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury.... The trial judge must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citations omitted). "It is immaterial whether the substantial evidence is circumstantial or direct, or both." State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981) (quoting State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956)). Circumstantial evidence need not exclude every reasonable hypothesis of innocence. Id.

Under N.C.G.S. § 90-95(h)(1) anyone who sells, manufactures, delivers, transports, or possesses more than 50 pounds of marijuana is guilty of the felony of trafficking in marijuana. If the quantity of marijuana involved equals or exceeds 10,000 pounds, the offense carries a minimum sentence of 35 years' imprisonment and a minimum fine of $200,000.

A defendant acts in concert with another to commit a crime when he acts "in harmony or in conjunction ... with another pursuant to a common criminal plan or purpose." State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). Evidence that a defendant did some act forming a part of the crime charged when considered together with evidence that others also did acts leading to the crime's commission, strongly indicates that the defendant was acting in concert with others to commit the crime charged. Id. at 356-57, 255 S.E.2d at 395. However, it is not

necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

Id. at 357, 255 S.E.2d at 395.

An examination of the record reveals overwhelming evidence that the crime of trafficking in marijuana occurred. Over 40,000 pounds of marijuana, along with a number of the traffickers, were seized by the State Bureau of Investigation and the Hyde County Sheriff's Department on 2 May 1984. The sole question remaining under this assignment of error is whether the State produced sufficient evidence that defendant committed the trafficking offense to take the case to the jury.

In reversing the trial court and deciding that the State did not produce sufficient evidence to take the case to the jury, the Court of Appeals reasoned that in order for the jury to conclude that defendant had engaged in trafficking in marijuana in excess of 10,000 pounds it would have to build inference upon inference. The Court of Appeals relied primarily on State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982).

It is necessary at this point to review the evidence offered by the State before we discuss the applicability of LeDuc to the instant case or determine the question presented by this assignment of error.

The State's evidence tended to show the following:

On 1 and 2 May 1984 agents of the State Bureau of Investigation were engaged in the surveillance of individuals believed to be involved in smuggling drugs. At approximately 6:05 p.m. on 1 May 1984, Carlos Sosa and Roberto Tellez were observed leaving the Holiday Inn in Williamston, North Carolina. Sosa was driving a tractor trailer truck; Tellez, a Ryder rental truck. They were followed by the agents until they turned off Highway 264 onto Fifth Avenue, a 2.3-mile dirt road which goes to the Long Shoal River. The agents walked to a point just south of the intersection of Fifth Avenue and Highway 264 and hid in a ditch. They heard voices coming from a pumping station located at the intersection and the sound of outboard motors coming from the Long Shoal River.

Around 1:00 a.m. on 2 May 1984, the agents saw a Buick Regal and a tractor trailer truck emerge from Fifth Avenue and turn towards Englehard onto Highway 264. The agents alerted other officers in the area who stopped the vehicles. The truck, driven by Sosa and carrying a passenger, Elias Silvino Rivero, was hauling 517 bales of marijuana and was equipped with a CB radio. The Buick was occupied by four Hispanic individuals: Louis Concepcion, Juan Hernandez, Reineril Fonseca, and Orlando Tudela. A search of the Buick revealed a rental agreement for the car in the name of Bienvenido Diaz. The agreement lists a home address, VISA card number, Florida driver's license number, and home telephone number for Bienvenido Diaz. CB radios wired into the electrical system, a map of the tidewater area, an airplane ticket for an A. Jiminez, and papers for Louis Concepcion and Juan Hernandez were also found in the car.

After the tractor trailer truck and Buick Regal had left the area the agents went about 0.7 mile down Fifth Avenue where they discovered Roberto Tillez in a rental truck and arrested him. The truck was loaded with bales of marijuana and was also equipped with a CB radio.

At this point the agents and local law enforcement officers turned on the blue lights in their vehicles and went to the end of Fifth Avenue. There they saw several vehicles and numerous individuals running for the swamp. Four Hispanic individuals were arrested almost immediately, and Carlos Mesa was later arrested after he was found hiding in a Ryder truck. One of the vehicles found near the river was a Plymouth Reliant which had been rented by Reineril Fonseca, who was one of the occupants of the Buick Regal.

A trawler recently painted black was offshore at the end of Fifth Avenue at the time of the raid. It had scratches on its right side, apparently as a result of being unloaded. Flatbottomed boats containing marijuana residue were found in the back of two Ryder trucks parked at the site. A search of the trawler revealed numerous radios, marijuana residue, and a notebook and papers containing a code. The code contained the phrase "Dias equals Galones." On 10 May 1984 another copy of the code containing the same phrase was found in a house in Duck which the traffickers had rented.

Fingerprints from a number of traffickers were found on notes from the trawler or on notes at the house rented by the traffickers in Duck. Fingerprints of both Frank Concepcion and Eladio Valdes were found.

During the early morning hours of 2 May 1984 the officers apprehended a number of individuals from the surrounding water and swamp in addition to those already arrested. Most of those arrested were Hispanic. The next day four more suspects were arrested at Wahoo Seafood Company in Stumpy Point. On that same day Sheriff Dale arrested Eladio Valdes on Highway 264, five miles from Englehard. On 4 May 1984, Frank Concepcion was arrested after being found in a boat near the drug landing site.

On 5 May 1984, defendant was spotted walking along Highway 264 towards a bombing range by Sheriff Dale who noted that he was dirty and wet and appeared to be exhausted. Sheriff Dale also noted that defendant looked Hispanic. The Sheriff stopped defendant and asked him his name. Defendant replied that he was Benny Diaz. When Sheriff Dale asked defendant where he had been, Diaz stated that he had been out in the swamp for several days and nights. The Sheriff then arrested him.

The area in which Sheriff Dale spotted defendant is approximately ten miles from Stumpy Point and fifteen miles from Englehard. That area is uninhabited, contains a bombing range, and consists of woods and swamp. Sheriff Dale testified that it was unusual for anyone to be walking through that area, especially in early May.

The evidence concerning the code phrase containing the word "Dias" and the rental agreement purportedly renting the seized Buick automobile to defendant, which automobile was seized while engaged in the trafficking of marijuana, was sufficient to support a reasonable inference that defendant was a participant in the planning of the crime of trafficking in more than 10,000 pounds of marijuana.

We are also of the opinion that there was ample evidence to support an inference from which the jury could reasonably find that defendant was one of the men who fled to the swamp and that prior to his flight he was present and assisting in the loading, unloading, and transportation of the marijuana. The evidence tending to support this inference is as follows: (1) That defendant, a Hispanic resident of Florida, was arrested three days after the raid at the loading area as he walked in the uninhabited marshes of Hyde County near a bombing range; (2) that at the time of his arrest defendant stated that he had been in the swamp for several days; (3) that three days before defendant's arrest, officers had arrested several Hispanic persons who were leaving the area where the marijuana was being unloaded from the trawler and loaded on a truck; four of these men were in a Buick automobile which was following a truck heavily loaded with...