State v. Robledo

• Decision Date: 04 November 2008
• Docket Number: No. COA07-1568.,COA07-1568.
• Citation: 668 S.E.2d 91
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff, v. Lorenzo ROBLEDO, Defendant.

668 S.E.2d 91

STATE of North Carolina, Plaintiff, v. Lorenzo ROBLEDO, Defendant.

No. COA07-1568.

Court of Appeals of North Carolina.

November 4, 2008.

Appeal by defendant from judgment entered on or about 19 July 2007 by Judge Dennis J. Winner in Henderson County Superior Court. Heard in the Court of Appeals 15 May 2008.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.

William D. Auman, Asheville, for defendant-appellant.

STROUD, Judge.

Defendant Lorenzo Robledo appeals from judgment entered upon jury verdicts finding him guilty of trafficking in marijuana and conspiracy to traffic in marijuana. Defendant contends the trial court erred by: 1) denying his motion to dismiss the trafficking charge on the basis of insufficient evidence, 2) denying his motion to dismiss the conspiracy to traffic charge on the basis of insufficient evidence, and 3) failing to instruct the jury on the lesser-included offenses of trafficking by possession and conspiracy to traffic marijuana in amounts greater than ten pounds, but less than fifty pounds. After careful review of the record we conclude defendant received a fair trial, free of reversible or plain error.

I. Factual Background

On 27 June 2006, the Hendersonville Police Department ("HPD") received a phone call from a DEA agent in Texas describing a package being shipped to the Hendersonville UPS store ("the UPS store") that possibly contained marijuana. Detective Adams and Captain Jones, HPD officers, went to the UPS store on 29 June 2006 and opened the box designed for a DeWalt miter saw ("the DeWalt box"). The DeWalt box was wrapped on the outside with plastic wrap. The box contained four bricks of tightly packaged marijuana protected by styrofoam. Detergent had been poured around the marijuana to negate the smell. Captain Jones repackaged the contents and took the entire box to the HPD evidence storage room. Several phone calls were made to inform the addressee that the package could not be delivered and must be picked up. The box was addressed to a person named Armando Iberra, at an address which Detective Adams had determined to be non-existent.

On 5 July 2006, defendant went to the UPS store in a Pontiac Grand Am¹ to collect a Member's Mark box. The box was not addressed to defendant, but he produced an authorization note from his niece, Esperanzo Garcia ("Garcia"), in order to sign for and receive the box. About a half hour later, defendant returned to the UPS store with his alleged co-conspirator, Brenda Gilliam ("Ms.Gilliam") in the Grand Am. Ms. Gilliam entered the UPS store and requested the DeWalt box. Captain Jones was telephoned, and the box was quickly transported from the evidence storage room to the UPS store. Meanwhile, Detective Adams set up surveillance across the street.

Ms. Gilliam also produced an authorization note from Garcia in order to sign for and receive the box. Ms. Gilliam walked outside to the Grand Am driven by defendant. Cindy, the UPS counter clerk, helped Ms. Gilliam carry the box to the car. Defendant got out of the Grand Am and helped load the DeWalt box into the car, first trying to place it inside the trunk then eventually putting the box on the back seat.

After driving out of the UPS store parking lot, defendant and Ms. Gilliam were stopped by law enforcement and arrested. Detective Adams searched the vehicle. The DeWalt box was removed and the marijuana inside was later weighed to be 43.8 pounds. The Member's Mark box collected earlier by defendant was discovered on the driver's side floorboard of the back seat. The Member's Mark box was examined at the scene and found to contain the exact same type of packaging as the DeWalt box and four bricks of marijuana. That marijuana was later weighed to be 44.1 pounds, for a total of 87.9 pounds in the two boxes.

Captain Jones later interviewed defendant. In the interview, defendant asserted that he and Garcia had previously lived at the same residence and that she had received many packages from UPS. He also acknowledged that he knew he would be collecting two packages that day. Finally, changing his story during the interview, he acknowledged that he was expecting to be paid fifty ($50), one hundred ($100), or two hundred ($200) dollars just for delivering the packages.

On 27 November 2006, the Henderson County Grand Jury indicted defendant for trafficking in marijuana in violation of N.C. Gen.Stat. § 90-95(h)(1) and conspiring to traffic in marijuana in violation of N.C. Gen. Stat. § 90-95(l). Defendant was tried before a jury in Superior Court, Henderson County from 17 to 18 July 2007. The jury found defendant guilty of trafficking in marijuana and conspiracy to traffic in marijuana. Upon the jury verdict, the trial court sentenced defendant to 35 to 42 months in the North Carolina Department of Corrections and a fine of $25,000. Defendant appeals.

II. Motions to Dismiss

Defendant argues the trial court erred when it denied his motions to dismiss both the trafficking charge and the conspiracy to traffic charge on the basis of insufficient evidence to sustain a conviction. We disagree.

A. Standard of Review

A defendant may move to dismiss a criminal charge when the evidence is not sufficient to sustain a conviction. N.C. Gen.Stat. § 15A-1227(a) (2005).

Evidence is sufficient to sustain a conviction when, viewed in the light most favorable to the State and giving the State every reasonable inference therefrom, there is substantial evidence to support a jury finding of each essential element of the offense charged, and of defendant's being the perpetrator of such offense.

State v. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations, quotation marks and brackets omitted).

"Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court ... does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility." State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (citations and quotation omitted), cert. denied, 537 U.S. 1006, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002). Evidence is not substantial if it "is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, [and] the motion [to dismiss] should be allowed ... even though the suspicion so aroused by the evidence is strong." State v. Hamilton, 145 N.C.App. 152, 155, 549 S.E.2d 233, 235 (2001) (citation, quotation marks, brackets, and ellipses in original omitted). This Court reviews the denial of a motion to dismiss for insufficient evidence de novo. Bagley, 183 N.C.App. at 523, 644 S.E.2d at 621.

B. Trafficking by Possession

Defendant contends the trafficking charge should have been dismissed and not submitted to the jury because the State did not present sufficient evidence of knowing possession of marijuana. Defendant specifically argues that "[n]o evidence was introduced to indicate that Mr. Robledo had any knowledge of what was in either the DeWalt or Member['s] Mark box, as the state showed merely that he had agreed to make a pickup on behalf of the third party." Citing State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984), defendant argues "[t]he state must prove that Mr. Robledo had requisite knowledge that a controlled substance was contained within the boxes[,]" then recites facts which he contends prove defendant did not know what was in the boxes.

While not expressly included in N.C. Gen.Stat. § 90-95(h)(1),² it is well-settled that the offense of trafficking a controlled substance by possession requires "knowing possession." State v. Shelman, 159 N.C.App. 300, 307, 584 S.E.2d 88, 94, disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003). "The `knowing possession' element of the offense of trafficking by possession may be established by a showing that (1) the defendant had actual possession, (2) the defendant had constructive possession, or (3) the defendant acted in concert with another to commit the crime." State v. Reid, 151 N.C.App. 420, 428, 566 S.E.2d 186, 192 (2002) (citation omitted).³

"Whether the defendant was aware that marijuana was in the automobile [is] properly a question for the jury [if] there [is] sufficient evidence to go to the jury[.]" State v. Fleming, 26 N.C.App. 499, 500-01, 216 S.E.2d 157, 158 (1975).⁴ Direct evidence is not required; awareness or knowledge may be inferred from incriminating circumstances. State v. Wiggins, 185 N.C.App. 376, 387-88, 648 S.E.2d 865, 873-74, disc. review denied, 361 N.C. 703, 653 S.E.2d 160 (2007); see also N.C.P.I. — Criminal 104.41 ("A person's awareness of the presence of the [substance] [article] and his power and intent to control its disposition and use may be shown by direct evidence, or may be inferred from the circumstances." (Brackets in original.)).

"North Carolina Courts interpreting incriminating circumstances have found many examples of circumstances sufficient to allow a case to go to the jury." State v. Neal, 109 N.C.App. 684, 687, 428 S.E.2d 287, 290 (1993). Three circumstances which have been consistently considered by the courts of this State on the issue of awareness or knowledge are (1) the degree of the defendant's control over the place where the contraband was found, see State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001) ("Where [contraband] materials are found on the premises under the [exclusive] control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." (Citation and quotation marks omitted)); State v. Barfield, 23 N.C.App. 619, 623, 209 S.E.2d 809, 812 (1974) ("evidence that defendant admitted that he placed the plastic bag which contained the heroin in the...