State v. Galaviz-Torres, COA13–1318.

• Court: North Carolina Court of Appeals
• Citation: State v. Galaviz-Torres, 763 S.E.2d 17 (N.C. App. 2014)
• Decision Date: 01 July 2014
• Docket Number: No. COA13–1318.,COA13–1318.
• Parties: STATE of North Carolina v. Jose Gustavo GALAVIZ–TORRES, Defendant.

763 S.E.2d 17 (Table)

STATE of North Carolina

v.Jose Gustavo GALAVIZ–TORRES, Defendant.

No. COA13–1318.

Court of Appeals of North Carolina.

July 1, 2014.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Joseph L. Hyde, for the State.

Glenn Gerding, for Defendant-appellant.

DILLON, Judge.

Jose Gustavo Galaviz–Torres (“Defendant”) appeals from convictions for one count of trafficking in cocaine by possession, one count of trafficking in cocaine by transportation, and one count of possession with intent to sell or deliver cocaine. Because we are compelled by our decision in State v. Coleman,––– N.C.App. ––––, 742 S.E.2d 346,disc. review denied,––– N.C. ––––, 752 S.E.2d 466 (2013) to conclude that the trial court committed plain error by failing to give a jury instruction regarding Defendant's guilty knowledge on each charge, we reverse the Defendant's convictions and remand for a new trial.

On 2 April 2012, Defendant was indicted for trafficking cocaine by possession, trafficking cocaine by transportation, and possession with intent to sell or deliver cocaine. Defendant was tried on these charges at the 20 May 2013 Criminal Session of Mecklenburg County Superior Court. The State's evidence tended to show that Charlotte–Mecklenburg Police Department and the Drug Enforcement Agency (“police investigators”) began jointly investigating Defendant based on information from a confidential informant that he was trafficking cocaine. On the afternoon of 26 March 2012, Defendant arrived at a Taco Bell parking lot in a van to participate in a drug sale with the informant. As a result of this meeting, Defendant was immediately arrested. Incident to the arrest, the police investigators searched the van that Defendant had driven to the location and found a gift bag next to the driver's seat containing what was later determined to be over 1 kilogram of cocaine. After receiving his Miranda rights, Defendant told police investigators that he was transporting the cocaine for someone else and that he had been paid for transporting cocaine in the past.

Defendant, however, testified that he was at the Taco Bell delivering ladders for a man he had performed construction work for in the past; that he had borrowed the van to make the delivery; that he was not aware that there was cocaine in the van; and that the cocaine did not belong to him. Also, Defendant denied making any statements to police investigators that he had been transporting cocaine on the day in question or that he had been paid in the past to transport cocaine.

On 24 May 2013, a jury found Defendant guilty of all three charges. The trial court consolidated the possession and the trafficking by possession convictions and ordered Defendant to a term of 175 to 222 months of imprisonment. On the conviction for trafficking by transportation, the trial court sentenced Defendant to a consecutive term of 175 to 222 months of imprisonment. The trial court also fined Defendant $250,000 for each judgment. Defendant gave oral notice of appeal at trial.

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Defendant raises only one issue on appeal. Specifically, failing to instruct the jury that it had to find beyond a reasonable doubt that he knewwhat he possessed and transported was cocaine. The record shows that Defendant failed to object to the exclusion of a jury instruction regarding his guilty knowledge. When a defendant fails to preserve an instructional error at trial for appellate review, our Court may nonetheless review for plain error. See State v. Odom,307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ; N.C.R.App. P. 10(a)(4). Our Supreme Court has stated that “[i]n order to prevail under a plain error analysis, Defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.” State v. Steen,352 N.C. 227, 269, 536 S.E.2d 1, 25–26 (2000) (citation and quotation marks omitted), cert. denied,531 U.S. 1167, 148 L.Ed.2d 997 (2001).

In the present case, each of the three crimes for which Defendant was convicted contains an element requiring Defendant to have knowledge that what he was possessing or transporting was cocaine. Our Supreme Court has held that “[f]elonious possession of a controlled substance has two essential elements. The substance must be possessed and the substance must be knowinglypossessed.” State v. Weldon,314 N.C. 401, 403, 333 S.E.2d 701, 702–03 (1985) (holding that “a defendant must be aware of the presence of an illegal drug if he is to be convicted of possessing it”) (emphasis added). Likewise, to establish trafficking by possession or by transportation, the State must show that the defendant knowinglypossessed or transported, respectively, the requisite amount of cocaine. State v. Baldwin,161 N.C.App. 382, 391, 588 S.E.2d 497, 504 (2003).

At trial, Defendant's sole defense was essentially based on his testimony that he did not know there was cocaine in the van he was driving. We have held that where the “evidence when viewed in the light most favorable to the defendantdiscloses facts which are legally sufficient to constitute a defense to the charged crime, the trial court must instruct the jury on the defense.” State v. Everett,163 N.C.App. 95, 100, 592 S.E.2d 582, 586 (2004) (citation and quotation marks omitted) (emphasis added). Our Supreme Court has held that “when the defendant introduces evidence of lack of guilty knowledge the court must charge on it.” State v. Nobles,329 N.C. 239, 244, 404 S.E.2d 668, 671 (1991).

Defendant's argument is in reference to pattern jury instructions N.C.P.I. Criminal 260.15, 260.17, and 260.30 which correspond with each of his three convictions. The instruction for each crime contains a requirement that the jury find, beyond a reasonable doubt, that the defendant “knowingly possessed” or “knowingly transported” cocaine. Each instruction also contains a footnote which essentially requires the trial court give an additional instruction in situations where a defendant contends he did not know the true identity of what he possessed; namely, an instruction that the jury must also find that the defendant knew that it was cocaine that he was possessing or transporting. Each footnote cites our Supreme Court's decision in State v. Boone,310 N.C. 284, 311 S.E.2d 552 (1984) as the authority requiring this additional instruction.

In Boone,the defendant was convicted of possessing marijuana when he was driving a car that had a duffel bag containing the drug in his trunk. Id.at 285–86, 311 S.E.2d at 554. The defendant, however, claimed that a friend had asked him to transport the bag; that he knew the bag was in his car; but that he did not know that there was marijuana in the bag. Id.at 294, 311 S.E.2d at 559. While reviewing State v. Elliott,232 N.C. 377, 61 S.E.2d 93 (1950), the Court noted that for general intent crimes intent or knowledge is presumed in committing the act, unless the defendant pleads lack of knowledge, making intent or knowledge a determinative issue of fact and an element of the crime. Id.at 292, 311 S.E.2d at 558. The Supreme Court affirmed this Court's awarding of the defendant a new trial because the pattern instruction in use at that time allowed the jury to convict if it found that the defendant “knew or had reason to know” that what he possessed was the illegal drug. Id.at 294, 311 S.E.2d at 559 (emphasis added). The Court held that this instruction was inappropriate where the defendant being charged with the general intent crime of possession of marijuana put at issue whether he knew that what he was in possession of was, in fact, an illegal drug. Id.

In the present case, the State argues that the additional instruction in the footnote is not required under Boonebecause, unlike the instruction in Boonewhich allowed a jury to convict even if it found that the defendant did not have guilty knowledge but merely had “reason to know” that he possessed an illegal drug, the pattern instruction used here states that the jury must find that Defendant “knowingly possessed” cocaine or “knowingly transported” cocaine. In other words, the State argues that the additional instruction in the footnote is not mandated by Boonebecause the language in the body of the instruction used in the present case already requires the jury find that Defendant possessed “guilty knowledge.”

We recently addressed this same issue in State v. Coleman,N.C.App., 742 S.E.2d 346,disc. review denied,––– N.C. ––––, 752 S.E.2d 466–67 (2013). In Coleman,the defendant was tried and convicted on charges of trafficking in heroin by possession and trafficking in heroin by transportation. ––– N.C.App. at ––––, 742 S.E.2d at 347. Some of the evidence tended to show that the defendant was carrying a box which he thought contained only marijuana and cocaine, but that he did not know that the box also contained heroine. Id.at ––––, 742 S.E.2d at 349. At trial, the trial court instructed the jury, in pertinent part, that it must find that the defendant “knowingly possessed heroin” and that the defendant “knowingly transported heroin[,]” as stated in N.C.P.I.Crim. 260.17 and N.C.P.I.Crim. 260.30, respectively; however, the defendant failed to request the additional footnote jury instructions. On appeal, the defendant contended that the trial court's failure “to instruct the jury in accordance with the pattern jury instructions regarding circumstances where a defendant contends he did not know the true identity of what he possessed” amounted to plain error. Id.at, 742 S.E.2d at 349, 351. This Court, after noting the nearly identical instructions in footnote 4 of either N.C.P.I.Crim. 260.17 or N.C.P.I.Crim. 260.30, explained that

Footnote 4 of pattern instructions—criminal 260.17 and 260.30 advises the trial judge to further instruct the jury where defendant contends he did not know the identity of the substance.... Therefore, if given as proposed by defendant, the first sentence of pattern...