State v. Rolon

• Decision Date: 23 October 2008
• Docket Number: No. 32989.,32989.
• Citation: 201 P.3d 657,146 Idaho 684
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Antonio Vasquez ROLON, Defendant-Appellant.
• Court: Idaho Court of Appeals

201 P.3d 657

146 Idaho 684

STATE of Idaho, Plaintiff-Respondent, v. Antonio Vasquez ROLON, Defendant-Appellant.

No. 32989.

Court of Appeals of Idaho.

October 23, 2008.

Rehearing Denied December 2, 2008.

Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Robyn A. Fyffe argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

GUTIERREZ, Chief Judge.

Antonio Vasquez Rolon appeals from his judgment of conviction for conspiracy to traffic in more than 28 grams of heroin and for conspiracy to traffic in more than 28 grams of cocaine. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

The state established the following facts at trial. Boise police, using a confidential informant between October 2004 and January 2005, conducted twelve controlled buys of heroin and cocaine from a drug ring operating in the area. To initiate the buys, the informant or an officer would call one of two participants, nicknamed "Cumbia" and "Buda," who would instruct the caller where to go and what type of vehicle to look for in which to complete the transaction. By tracking the vehicles used by the sellers during the controlled buys, acquiring information about the phone numbers used by the police to contact the sellers, and eventually stopping a car after it left the scene of a controlled buy, officers were able to identify one of the sellers as Carlos Ortiz. Following his arrest on December 8, when several balloons of both heroin and cocaine were found in his car, Ortiz agreed to provide information to authorities, including the names, phone numbers, and addresses of individuals involved in the distribution operation. Based on this information and further investigation, officers obtained several search and arrest warrants and eventually identified several other participants in the enterprise, including Rolon.

On January 18, 2005, Cumbia was arrested following a traffic stop, and after he placed a call to Buda where he requested that Buda get the "tools" which were in the steering column of his impounded vehicle, police discovered several grams of heroin and cocaine hidden in the column. The next day, police simultaneously executed warrants for the search of local residences they believed were utilized by the drug ring and for the arrest of conspiracy members. A small amount of cocaine and approximately $3,300 in cash were seized from the apartment shared by Buda and another participant, "Chaleco," and several grams of heroin and cocaine were found in a residence frequented by Cumbia. In addition, approximately 50 grams of heroin and cocaine, $15,680 in cash, and drug ledgers were discovered in a residence in Nampa. Drug ledgers were also found in a Boise residence. The same day, Rolon was arrested in Utah, where he resided. In a search of his vehicle, officers found the titles to three vehicles involved in the drug distribution in Idaho.

Rolon, Cumbia, Buda, Chaleco, Ortiz, and others were charged with conspiring to traffic in more than 28 grams of heroin, Idaho Code §§ 37-2732B(a)(6)(C), 18-1701, and conspiring to traffic in more than 28 grams of cocaine, I.C. §§ 37-2732B(a)(2)(A), 18-1701. Specifically in regard to Rolon, the state alleged that he directed the conspiracy members in the selling and delivery of the drugs between September 2004 and January 2005 and that he had delivered or arranged for the delivery of the drugs to the conspiracy members from Utah.

At trial, in addition to the evidence gathered from the controlled buys, the arrests of several of the conspiracy members, the subsequent searches of their vehicles, and the searches of the residences utilized by the group, the state also presented phone records showing an unusually high level of phone calls from Rolon to Chaleco, Buda, Cumbia, and another participant named "Chalo" during October, November, and January, and that Rolon had called Ortiz eleven times in a three-day span in early December. Additionally, officers testified that in late December, they had observed Rolon enter Chaleco's and Buda's apartment, watched as he and Chaleco left the residence and spoke briefly inside Chaleco's vehicle, and then followed Rolon to a bank where he had deposited $1,000 in an account. Police also observed Rolon return to the apartment for about thirty minutes. He then drove to a residence in Nampa that was utilized by the drug ring and remained there approximately thirty minutes. Later that day, Rolon returned to Utah.

The state also presented the testimony of Buda's wife, Mariya, and the testimony of Ortiz who explained his involvement in the conspiracy and his interactions with Rolon, who was considered the group's "boss."

The jury found Rolon guilty of both conspiracy charges. Following the district court's partial grant of a motion to reduce his sentences, Rolon was sentenced to a unified term of twenty-five years with fifteen years determinate for conspiracy to traffic in heroin and a consecutive unified term of ten years with three years determinate for conspiracy to traffic in cocaine. Rolon now appeals.

II. ANALYSIS

A. Jury Instructions

For the first time on appeal, Rolon argues the district court erred because the instructions given the jury permitted them to find him guilty of conspiracy based on a general, rather than specific, intent standard and allowed the jury to find him guilty of conspiring to traffic in more than 28 grams of cocaine and heroin by relying on the amounts actually delivered by the local distribution ring, regardless of whether the state proved that he actually agreed to traffic in those quantities. In other words, he alleges that the instructions erroneously required the jury to find him guilty of trafficking in more than 28 grams if it found that he had merely agreed to manufacture, deliver, bring into the state, or possess any quantity of heroin or cocaine. He contends the error is reversible because the evidence connecting him to the conspiracy was "tenuous," and the jury could have found that while he intentionally furthered the conspiracy in trafficking in cocaine and heroin, he did not have knowledge of, and thus no specific intent to agree to traffic in more than 28 grams of heroin and cocaine. Similarly, he posits the evidence shows only that he knew of the conspiracy, but that he did "not have the specific intent to participate or affirmatively further its purposes."

The question whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.App. 1993).

Ordinarily, a party may not claim that a jury instruction was erroneous unless the party objected to the instruction prior to the jury's beginning to deliberate. Idaho Criminal Rule 30(b). However, even absent a timely objection to the trial court, claims of instructional error are reviewable for the first time on appeal under the fundamental error doctrine. State v. Anderson, 144 Idaho 743, 748, 170 P.3d 886, 891 (2007). Fundamental error has been defined as error which goes to the foundation or basis of a defendant's rights, goes to the foundation of the case, or takes from the defendant a right which was essential to his or her defense and which no court could or ought to permit to be waived. State v. Babb, 125 Idaho 934, 940, 877 P.2d 905, 911 (1994). In other words, an error is fundamental when it "so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his fundamental right to due process." Anderson, 144 Idaho at 748, 170 P.3d at 891; State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992). Jury instructions that fail to require the state to prove every element of the offense violate due process and, thus, rise to the level of fundamental error. Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 1832, 158 L.Ed.2d 701, 707 (2004); Anderson, 144 Idaho at 749, 170 P.3d at 892.

However, even when a fundamental error has occurred, this Court will not reverse a conviction if the error was harmless. Anderson, 144 Idaho at 749, 170 P.3d at 892; State v. Field, 144 Idaho 559, 165 P.3d 273 (2007). A harmless error analysis may be applied in cases involving improper instructions on a single element of the offense or even when a court omits an essential element from the instructions to the jury. Neder v. United States, 527 U.S. 1, 9-15, 119 S.Ct. 1827, 1833-1837, 144 L.Ed.2d 35, 46-51 (1999); State v. Lovelace, 140 Idaho 73, 79, 90 P.3d 298, 304 (2004); State v. Lilly, 142 Idaho 70, 72, 122 P.3d 1170, 1172 (Ct.App. 2005). But, before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967). If, after examining the record, the reviewing court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error, it should not find the error harmless. Neder, 527 U.S. at 19, 119 S.Ct. at 1838, 144 L.Ed.2d at 53; Lilly, 142 Idaho at 72, 122 P.3d at 1172. The test is whether the "record contains evidence that could rationally lead to a finding for the defendant with respect to the omitted element." Neder, 527 U.S. at 19, 119 S.Ct. at 1838, 144 L.Ed.2d at 53. Relevant considerations include whether the element was contested at trial and whether the evidence on the element was overwhelming. Neder, 527 U.S. at 16-19, 119 S.Ct. at 1837-1838, 144 L.Ed.2d at 51-53; Lilly, 142 Idaho at 72, 122 P.3d at 1172. The government bears the burden of showing that the error had no effect on a defendant's substantial...