State v. Reyes, No. COA07-693 (N.C. App. 12/18/2007)
| Decision Date | 18 December 2007 |
| Docket Number | No. COA07-693,COA07-693 |
| Parties | STATE OF NORTH CAROLINA v. AURTURA PEREZ REYES, aka ORLANDO MEDINA DeJESUS |
| Court | North Carolina Court of Appeals |
Aurtura Perez Reyes ("defendant") appeals the denial of his motion to dismiss charges and motion to suppress evidence. For the reasons stated below, we affirm.
At approximately 8:00 p.m. on 20 July 2005, Sergeant Randy Binns ("Sergeant Binns"), Sergeant Jeff Dorsett ("Sergeant Dorsett"), and Officer Derek Burleson ("Officer Burleson") were patrolling a known high drug activity area when a burgundy Crown Victoria pulled out of a restaurant parking lot in front of them, causing them to have to brake to avoid an accident. The officers were in an unmarked Toyota 4Runner. The officers also noticed that the car's windows appeared to be tinted darker than legally allowed. The officers turned around in the restaurant parking lot and followed the car into a residential neighborhood where they pulled it over to initiate a traffic stop.
When the car stopped, it blocked a driveway. Sergeant Dorsett and Officer Burleson exited their vehicle and approached the passenger side of the Crown Victoria while Sergeant Binns radioed to request information about the vehicle. Before he was able to determine the registration of the vehicle, Sergeant Binns asked the other officers to have the car pull forward slightly so that it no longer blocked the driveway. The car did so, then "it was off to the races." Sergeant Dorsett and Officer Burleson returned to the 4Runner and pursued the car to a dead end, at which point defendant and the driver jumped out and ran towards the woods. Sergeant Binns and Officer Burleson pursued the driver on foot, while Sergeant Dorsett went after defendant.
Sergeant Dorsett caught defendant but had difficulty retraining him and called for assistance. Sergeant Binns abandoned his pursuit of the driver to assist Sergeant Dorsett with apprehending defendant. Sergeants Dorsett and Binns eventually handcuffed defendant and placed him in the back of a patrol car that had arrived on the scene. The driver of the burgundy Crown Victoria was not apprehended that day.
Sergeants Dorsett and Binns then searched the Crown Victoria. From the driver's area, Sergeant Binns recovered a receipt showing the date of the incident which listed a deck of playing cards, and an unopened deck of playing cards. Sergeant Dorsett found a redduffle bag in the floor behind the driver's seat. The bag contained what was later shown to be a kilo of cocaine.
Defendant was arrested on various drug charges. At the time of his arrest, defendant represented that his name was Orlando DeJesus, but signed a Miranda rights waiver form as Orlando S. Medina He was indicted by a Montgomery County Grand Jury on 6 September 2005 as "John Doe, AKA Orlando Medina DeJesus" of felony trafficking in cocaine by possession of more than 400 grams, felony trafficking in cocaine by transporting more than 400 grams, and felony conspiracy to traffick in cocaine by transporting more than 400 grams. He was later discovered to be Aurtura Perez Reyes and indicted under that name on 17 October 2005.
On 2 October 2006, defendant brought a motion to suppress evidence seized as a result of the warrantless seizure of his person. The motion was heard on 8 January 2007 and denied by order rendered at the hearing and entered 18 January 2007. Defendant's jury trial in this matter began 9 January 2007. He was tried on charges of possession with intent to sell and deliver cocaine, trafficking in cocaine by possession, and trafficking in cocaine by transportation. At the close of the State's evidence, the court granted defendant's motion to dismiss the charge of trafficking in cocaine by transportation and the State elected not to proceed on the possession with intent to sell and deliver charge. Defendant again moved the court to dismiss the trafficking by possession charge at the close of all the evidence, which was denied. On 10 January 2007, the jury returned a verdict of guilty for the charge of trafficking in cocaine by possession. The court sentenced defendant to a term of 175 to 219 months in the custody of the North Carolina Department of Correction. Defendant appeals the denial of his motion to dismiss the charge of trafficking of cocaine by possession and the denial of his motion to suppress evidence as the result of a warrantless seizure. For the reasons stated below, we affirm.
In his first assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the charge of trafficking in cocaine by possession because the State failed to present sufficient evidence that defendant possessed the cocaine. We disagree.
This Court reviews a criminal defendant's motion to dismiss charges to determine "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.
Id. at 99, 261 S.E.2d at 117 (citing State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978); State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975)). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citing Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977); Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 231 S.E.2d 882 (1977)). If the State has presented such evidence, the motion is properly denied. Powell, 299 N.C. at 98, 261 S.E.2d at 117 (citations omitted).
Defendant was tried pursuant to North Carolina General Statutes, section 90-95(h)(3) which states in pertinent part:
Any person who . . . possesses 28 grams or more of cocaine . . . shall be guilty of a felony, which felony shall be known as "trafficking in cocaine" and if the quantity of such substance or mixture involved:
. . . .
c. Is 400 grams or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 219 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($ 250,000).
N.C. Gen. Stat. § 90-95(h)(3) (2005). Therefore, the State in this case was required to present substantial evidence that defendant (1) had possession of a substance, (2) which substance proved to be cocaine, and (3) the substance weighed in excess of twenty-eight grams. Defendant does not argue that the substance was not cocaine weighing more than twenty-eight grams. The State may prove that a defendant possessed contraband materials by either actual or constructive possession. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). Actual possession arises when a person has the substance on his person, 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." State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002) (citing State v. Crawford, 104 N.C. App. 591, 600, 410 S.E.2d 499, 504 (1991)). Constructive possession arises when a person does not have the substance on his person, but nonetheless "'has the intent and capability to maintain control and dominion over'" the substance. State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)). Constructive possession may be inferred when the substance is found in an area under the exclusive control of the person. See State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). However, if the person does not have exclusive possession of the place where the substance is found, the State must show additional incriminating circumstances before constructive possession may be inferred. State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
In the instant case, defendant did not have actual possession; the cocaine was not found on defendant's person; and defendant was not the driver of the car. Therefore, the State was required to present evidence of additional incriminating circumstances to allow an inference of constructive possession. The State presented the following circumstantial evidence: (1) the configuration of the front seat was such that the passenger could reach from the front passenger seat to the backseat; (2) defendant was in a car with darkly tinted windows; (3) defendant was in a high drug activity area; (4) defendant fled, then resisted arrest when caught; and (5) defendant gave a false name when arrested, and, in fact, gave multiple names. Further, at the time the cocaine was found, officers did not know that defendant was not the owner of the car. From these facts, the jury could infer that defendant knew the cocaine was behind the driver's seat and that he intended to exercise control over it with the driver.
Defendant's evidence also is to be considered in the light...
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