State v. Diaz, No. COA04-499 (NC 3/15/2005), COA04-499
| Decision Date | 15 March 2005 |
| Docket Number | No. COA04-499,COA04-499 |
| Court | North Carolina Supreme Court |
| Parties | STATE OF NORTH CAROLINA v. SILVANO GUERRA DIAZ and ALBERTO AMADOR RAMIREZ, Defendants. |
Charlesena Elliott Walker and Leslie C. Rawls, for the defendant-appellants.
Defendants Silvano Guerra Diaz and Alberto Amador Ramirez appeal their convictions for trafficking in cocaine and conspiring to traffic in cocaine. Diaz and Ramirez contend that the trial court erred by denying their motions to dismiss because the State's evidence was insufficient to support a guilty verdict. Diaz also contends that the trial court erred by improperly instructing the jury on the conspiracy charge. Ramirez further contends that the trial court erred by allowing certain testimony into evidence. For the reasons stated herein, we uphold Defendants' convictions.
A brief procedural and factual history of the instant appeal is as follows: Marcus Massey, a confidential police informant,arranged a meeting with Glenda Barlett to purchase one kilogram of cocaine for $26,000.00. He was to meet Barlett at a Food Lion grocery store in Marshville, North Carolina on 26 November 2001. On that date Barlett, Liliana Aguiree, and Antonio De Lacruz drove in a brown truck to Cangor, North Carolina, where they met Ramirez. They then followed Ramirez to Robbins, North Carolina. In Robbins, they met Diaz, who was driving a black sedan. Barlett, Aguiree, and De Lacruz left Robbins in the brown truck and were followed by the black sedan, driven by Diaz and in which Ramirez had joined Diaz as a passenger.
The parties arrived at the Food Lion in Marshville and exchanged vehicles. Barlett and Aguiree got into Diaz's sedan, and Ramirez told Bartlett, "it's under the seat." Diaz, Ramirez, and De Lacruz then got in the brown truck. Barlett and Aguiree drove across the parking lot, where they met Massey. When Massey approached the car, Barlett told Aguiree to get the bag from under the seat. When Aguiree could not get the bag out, Massey got in the car and extracted the bag. The bag contained what appeared to be cocaine, and Massey gave a prearranged signal to Officer Mackey Goodman, and arrests of Barlett and Aguiree were initiated. Officer Goodman had been monitoring the scene in the Food Lion parking lot from an unmarked patrol car. He watched as Defendants exchanged vehicles with Barlett and Aguiree and saw Diaz, Ramirez, and De Lacruz leave the parking lot in the brown truck after they observed the police move in to arrest Barlett and Aguiree. Officer Goodman, as well as Massey, also saw that Barlett and Aguiree did not carry anything into the black sedan when they exchanged cars.
The bag Massey found under the passenger seat of the sedan contained 996.1 grams of cocaine. Barlett's day planner and three cell phones were seized from the pickup truck.
Diaz and Ramirez were arrested and charged with Trafficking in Cocaine by Transportation, Trafficking in Cocaine by Possession, and Conspiracy to Traffic in Cocaine.1 They were tried jointly in August 2003 in Superior Court, Union County and convicted on all charges. Defendants appealed.
Defendants contend the trial court erred by denying their motions to dismiss because the State's evidence was insufficient to support a guilty verdict. When reviewing a motion to dismiss, we view "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Morgan, ___ N.C. ___, ___, 604 S.E.2d 886, 904 (2004) (citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166, 107 S. Ct. 241 (1986)). If we find that "substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion." Id. (citing State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983)). "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)(citing State v. Smith, 300 N.C. 71, 78, 265 S.E. 2d 164, 169 (1980)). "It is immaterial whether the substantial evidence is circumstantial or direct, or both." State v. Diaz, 317 N.C. 545, 547, 346 S.E.2d 488, 490 (1986) (quotation omitted).
To survive the motions to dismiss the charges of trafficking in cocaine by transportation and possession, there must be substantial evidence that Defendants "transport[ed], or possess[ed 400] grams or more of cocaine[.]" N.C. Gen. Stat. § 90-95(h) (2003).
To show transportation, "the State [must] show a `substantial movement'" of the cocaine. State v. Wilder, 124 N.C. App. 136, 140, 476 S.E.2d 394, 397 (1996) (quoting State v. Greenidge, 102 N.C. App. 447, 451, 402 S.E.2d 639, 641 (1991)). Transportation is shown by evidence of carrying or movement of an illegal substance from one place to another. See, e.g., State v. McRae, 110 N.C. App. 643, 646, 430 S.E.2d 434, 436-37, disc. review denied, 334 N.C. 625, 435 S.E.2d 347 (1993) (); State v. Outlaw, 96 N.C. App. 192, 197, 385 S.E.2d 165, 168-69 (1989), disc. review denied, 326 N.C. 266, 389 S.E.2d 118 (1990) ().
To show possession, the State must provide substantial evidence that: (1) Defendants had actual possession; (2) Defendants had constructive possession; or (3) Defendants acted in concert with another to commit the crime.2 State v. Reid, 151 N.C. App. 420, 428, 566 S.E.2d 186, 192 (2002); State v. Garcia, 111 N.C. App. 636, 639-40, 433 S.E.2d 187, 189 (1993). A person has actual possession of an illegal substance if it is on his person, he 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. Reid, 151 N.C. App. at 428, 566 S.E.2d at 192. A person has constructive possession of an illegal substance when he has both the power and intent to control its disposition or use even though he does not have actual possession. Garcia, 111 N.C. App. at 640, 433 S.E.2d at 189 (quoting State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)). A rebuttable inference of constructive possession arises where a defendant was the custodian of a vehicle where drugs were found. State v. Tisdale, 153 N.C. App. 294, 297-98, 569 S.E.2d 680, 682 (2002); see also State v. Chandler, 100 N.C. App. 706, 711-12, 398 S.E.2d 337, 340 (1990) (). A defendant acts in concert with another to commit a crime when he is present while a trafficking offense occurs and acts in concert with others to commit the offense pursuant to a common plan or purpose. Diaz, 317 N.C. at 547, 552, 346 S.E.2d 490, 493.
Here, there was uncontested evidence, including testimony by Officer Goodman, Chris Stark, a chemist with the North Carolina Bureau of Investigation, and confidential informant Massey, that the amount of cocaine seized was well over the 400-gram statutory minimum needed for the charged trafficking offenses. See N.C. Gen. Stat. § 90-95(h).
Moreover, there was substantial evidence that Defendants transported the cocaine by a carrying about or movement from one place to another: Ramirez met Barlett, Aguiree, and De Lacruz in Cangor. They then drove to Robbins, where they met up with Diaz. Ramirez joined Diaz in Diaz's car, and Diaz drove to the Marshville Food Lion. There, as Officer Goodman watched, Diaz and Ramirez switched cars with Barlett and Aguiree, whom Ramirez told "it's under the seat." Viewing the evidence in the light most favorable to the State, substantial evidence existed as to the transport element of the trafficking charges.
There was also substantial evidence that Defendant had constructive possession or acted in concert with another to traffic by possession: The cocaine was found in Diaz's car, which Diaz was driving. While Diaz exchanged cars with Barlett and Aquiree just prior to the sale to Massey, the record reflects that neither Barlett nor Aquiree brought anything into Diaz's car at the time of the exchange. Moreover, Ramirez told Aguiree that "it's under the seat." When Barlett and Aguiree drove across the parking lot to conduct the sale with Massey, they retrieved the cocaine bag from underneath the passenger's seat of Diaz's car, where Ramirez had been seated. After the police arrived at the scene, Diaz and Ramirez, along with De Lacruz, attempted to drive away. Viewing the evidence in the light most favorable to the State, substantial evidence existed as to the possession element of the trafficking charges.
In sum, there was substantial evidence as to all of the elements of the trafficking charges. The trial court therefore did not err in denying Defendants' motions to dismiss.
To survive the motions to dismiss the charges of conspiracy, there must be substantial evidence of "'an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner.'" State v. Batchelor, 157 N.C. App. 421, 427, 579 S.E.2d 422, 427 (2003) (quoting State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991)); State v. Kemp, 153 N.C. App. 231, 235-36, 569 S.E.2d 717, 720, disc. review denied, 356 N.C. 441, 573 S.E.2d 158 (2002) (same). An agreement ...
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