State v. Garcia

• Decision Date: 17 August 1993
• Docket Number: No. 9210SC530,9210SC530
• Parties: STATE of North Carolina v. Wilson GARCIA.
• Court: North Carolina Court of Appeals

Page 187

433 S.E.2d 187

111 N.C.App. 636

STATE of North Carolina v. Wilson GARCIA.

No. 9210SC530.

Court of Appeals of North Carolina.

Aug. 17, 1993.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Jane L. Oliver, Raleigh, for the State.

Charles F. Caldwell, Raleigh, for defendant-appellant.

ORR, Judge.

On 24 April 1991, defendant and Elizabeth Pena were arrested at the Raleigh bus station by two State Bureau of Investigation agents and a Wake County Sheriff's Office detective. The evidence at trial, presented only by the State, tended to show the facts as follows. The officers were conducting a drug interdiction exercise at the bus station, whereby certain southbound passengers were asked to display their tickets, state their origin and destination, and identify their luggage. Defendant and Elizabeth Pena exited the bus from New York separately. The officers questioned defendant, and he produced a one-way ticket from New York to Durham and a store-bought identification card bearing the name "John Brown." He consented to a search of his person which revealed only a sports bar membership card bearing the name "Wilson Garcia." He did not board the bus to Durham. The officers then questioned Elizabeth Pena, who had boarded the Durham-bound bus. She identified her bag and consented to a search of the bag. The officers found a plastic bag containing 498.7 grams of eighty-percent pure cocaine in her bag. One of the officers then left the station to search for defendant and found him several blocks away. On the sidewalk nearby, he also found a torn bus ticket with sequential numbers and times as that found on Pena. Defendant denied knowing Pena or having knowledge of the cocaine.

Pena testified at trial that defendant offered to pay for her to visit her mother in the Dominican Republic if she would do something for him. She said defendant told her to pack some clothes and leave her bag at his house. Then he told her to retrieve the bag and meet him at the New York City bus station, where he gave her the bus ticket to Durham. Pena denied knowledge of the cocaine.

Defendant bases his appeal on three contentions of error by the trial court. We hold that the trial court committed no error.

I.

Defendant first argues that the trial court committed reversible error in refusing to give defendant's requested cautionary instruction prior to co-defendant Pena's testimony. We disagree.

Defendant relies on the well-settled rule of law in this State that "although the jury should receive and act upon such testimony with caution, the unsupported testimony of an accomplice is sufficient to sustain a conviction if it satisfies the jury beyond a reasonable doubt of the guilt of the accused." State v. Tilley, 239 N.C. 245, 249, 79 S.E.2d 473, 476 (1954). Defendant contends that the only way the jury can receive evidence of an accomplice with caution is if that evidence is preceded with a cautionary instruction from the court. We disagree.

"[I]nstructions on the credibility of interested witnesses concern a subordinate feature of the case; thus, the court need not instruct on this subject absent a request." State v. Watson, 294 N.C. 159, 168, 240 S.E.2d 440, 446 (1978). Defendant made a motion that such an instruction be given prior to Pena's testimony. The trial court denied this motion.

However, in its final charge to the jury, the trial court gave an instruction substantially the same as that requested by defendant. The trial court cautioned the jury that Pena

has been charged with similar offenses [to defendant] in this case. And I instruct you that as such you may find that she is interested in the outcome of this trial. And ... in deciding whether or not to believe such a witness you may take her interests into account. If after doing so you believe her testimony in whole or in part, then I instruct you that you should treat what you believe the same as any other believable evidence in this case.

In State v. Miller, 61 N.C.App. 1, 22, 300 S.E.2d 431, 445 (1983), the appellant contended that the court erred by not giving a requested limiting instruction that certain photograph exhibits be considered only for illustrative purposes. Although the record showed no limiting instructions were given when the photographs were received into evidence, this Court held that the assignment of error was without merit because the trial court had given appropriate instructions in its final charge to the jury. Id.

If a cautionary instruction was required once defendant requested one, the inclusion of that instruction in the final charge to the jury rather than prior to Pena's testimony was sufficient to meet that requirement. The trial court committed no error in not giving the instruction prior to Pena's testimony.

II.

Defendant next contends that the trial court erred in denying his motion to dismiss for insufficiency of evidence. We disagree.

[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. Diaz, 317 N.C. 545, 546, 346 S.E.2d 488, 490 (1986).

The only element of the trafficking offense that defendant challenges is knowing possession of the cocaine. To prove this element, the State must prove actual possession, constructive possession, or acting in concert with another to commit the crime. See Diaz at 552, 346 S.E.2d at 493 (when the State has established that a defendant was present while a trafficking offense occurred and that he acted in concert with others to commit the offense pursuant to a common plan or purpose, it is not necessary to invoke the doctrine of constructive possession). The State argues that it presented substantial evidence for the trial court, when considering the evidence in a light most favorable to the State, to find both defendant's constructive possession and acting in concert with Pena. We agree.

Under the theory of constructive possession, a person may be charged with possession of an item such as narcotics when he has both the power and intent to control its disposition or use even though he does not have actual possession.... [U]nless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred. (Citation omitted.)

State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). Upon review of the testimony presented at trial, we conclude that the State showed sufficient incriminating circumstances from which the trial court could have inferred constructive possession when ruling on defendant's motion to dismiss. From the testimony, the trial court could have drawn reasonable...