Opinion
No. COA 11–920.
2012-05-15
STATE of North Carolina v. Geraldo RAMIREZ–ROMERO, aka: John Doe # 1045.
Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State. Kevin P. Bradley for Defendant.
Appeal by Defendant from judgments entered 6 January 2011 by Judge Mark E. Powell in Superior Court, Buncombe County. Heard in the Court of Appeals 13 December 2011. Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State. Kevin P. Bradley for Defendant.
McGEE, Judge.
Geraldo Ramirez–Romero (Defendant) was convicted of conspiracy to traffic in marijuana by possession and of trafficking in marijuana by possession on 6 January 2011. Defendant was sentenced to two consecutive terms of twenty-five to thirty months' imprisonment. At trial, Agent Sonia Escobedo (Agent Escobedo) of the Asheville Police Department testified that on 3 June 2010 she was part of a canine unit conducting a “package interdiction” at a FedEx facility in Asheville. Asheville police intercepted a package (the package) and discovered the package contained marijuana. The weight of the marijuana in the package was later determined to be nineteen pounds. The package was sent from Pedro Ayala in McAllen, Texas, and it was addressed to Martin Preciado, 29 Forestdale Drive, Asheville, North Carolina.
After the package was intercepted, Agents Scott Hawkins (Agent Hawkins) and Tim Goodridge (Agent Goodridge) of the Buncombe County Anticrime Taskforce planned to conduct a “controlled delivery” of the package to a house located at 29 Forestdale Drive (the house) the same day. Prior to delivering the package, Agents Hawkins and Goodridge went to the house and found that the house appeared to be abandoned. Agents Hawkins and Goodridge then interviewed neighbors who told them that no one had lived in the house for the past six months. None of the neighbors indicated that a person by the name of “Martin Preciado” lived at the house.
After interviewing the neighbors living near the house, Agent Hawkins left the package at the house, “on a stoop right outside the carport ... against the side door.” Agent Hawkins placed the package there to avoid it being noticed by passers-by, and so that a person picking up the package would have to “know the package was there and get out [of their car] and look for the package to find it.” Around noon on 3 June 2010, several agents (the agents) set up surveillance in various locations surrounding the house.
About six hours into the surveillance, the agents saw a silver vehicle (the vehicle) come down the street, turn around and drive in the other direction. The driver of the vehicle was later identified as Defendant. Eight to ten minutes later, the agents observed the vehicle come back down Forestdale Drive and stop at a house near 29 Forestdale Drive. The agents saw Defendant get out of the vehicle, and then return to the vehicle. The vehicle then stopped at 29 Forestdale Drive and backed up to the carport. The agents saw Defendant open the trunk from inside the vehicle, leave the engine running, and then get out of the vehicle and walk toward the stoop of the side door where the package was located. Agent Hawkins testified that Defendant walked “straight back towards where the package, the marijuana, was located[.]”
Agent Goodridge then used his undercover vehicle to block Defendant's vehicle in the carport, while Agent Hawkins approached Defendant on foot. Agent Hawkins testified Defendant “bent over this package of marijuana with his hands outstretched on either side of the box.” Agent Hawkins stated that Defendant either heard him or heard Agent Goodridge's car. Defendant then stood up, turned around, and walked into Agent Hawkins. Agent Hawkins then arrested Defendant.
Agent Hawkins testified that after Defendant's arrest, his vehicle was searched. A slip of paper with “29 Fort Dale Road or Drive, Asheville” written on it was found inside the vehicle driven by Defendant. Identification was found inside the vehicle but Agent Hawkins believed that the identification was fraudulent. Agent Hawkins also testified that “[t]here was a GPS on the dashboard with the address in it.” The GPS was “in Spanish[,]” and Agent Hawkins was “not equipped well enough to understand where it was coming from, so [he] didn't fool with it. [He] just turned it off and seized” the GPS.
Defendant moved to dismiss the charges of trafficking in marijuana by possession and conspiracy to traffic in marijuana by possession. The trial court denied Defendant's motions. Defendant also requested that the trial court instruct the jury on attempted trafficking in marijuana by possession. The trial court denied Defendant's request. Defendant appeals.
I. Issues on Appeal
Defendant raises the following issues on appeal: (1) whether the trial court erred by denying Defendant's motion to dismiss the charge of trafficking in marijuana by possession and by denying Defendant's request for jury instructions on attempted trafficking in marijuana by possession; (2) whether the trial court erred by denying Defendant's motion to dismiss the charge of conspiracy to traffic in more than ten pounds of marijuana by possession or by transportation; and (3) whether the trial court erred by overruling Defendant's objection to certain portions of Agent Goodridge's testimony.
II. Motions to Dismiss
A. Standard of Review
“The standard of review of a motion to dismiss for insufficient evidence is whether the State presented substantial evidence of each element of the offense and ‘defendant's being the perpetrator.’ “ State v. Hernandez, 188 N.C.App. 193, 196, 655 S.E.2d 426, 429 (2008) (citations omitted). “Substantial evidence is relevant evidence that a reasonable person might accept as sufficient to support a conclusion.” Id. (citations omitted). We review “the evidence in the light most favorable to the State, giving every reasonable inference arising from that evidence to the State, even if the same evidence supports reasonable inferences of the defendant's innocence.” Id. at 196–97, 655 S.E.2d at 429 (citations omitted). “Whether the evidence is circumstantial or direct does not preclude a reasonable inference of defendant's guilt .” Id. at 197, 655 S.E.2d at 429 (citations omitted).
B. Trafficking in Marijuana by Possession
Defendant first argues that the trial court erred by denying Defendant's motion to dismiss the charge of trafficking in marijuana by possession and by denying Defendant's request to submit an instruction to the jury on attempted trafficking in marijuana by possession. Defendant contends that the trial court erred because Defendant was interrupted by police officers prior to his picking up the package and, therefore, there was insufficient evidence of Defendant's possession of the marijuana. We first note that Defendant fails to present an argument concerning the requested jury instruction. Rather, Defendant's sole argument regarding the jury instructions is that “[a]lmost picking up a package is attempted possession—not possession—as a matter of law.” Defendant's argument on appeal addresses only the motions to dismiss and our analysis is likewise limited.
Defendant relies on State v. Clark, 137 N.C.App. 90, 527 S.E .2d 319 (2000). In Clark, this Court held that a conviction could not stand when the indictment charged trafficking in marijuana by possession of more than ten pounds, but the evidence at trial showed that the defendant in fact possessed less than ten pounds of marijuana. Id. at 93–94, 527 S.E.2d at 321–22.Clark involved a controlled delivery occurring after a police officer intercepted a package containing twelve and one-half pounds of marijuana. Id. at 92, 527 S.E.2d at 320. The officer removed all but .13 kilograms of the marijuana and then executed a controlled delivery to the defendant. Id. This Court noted that “no matter how nefarious defendant's intent, the actions of the police made it impossible for him to actually possess the quantity of marijuana required for a trafficking conviction.” Id. at 93, 527 S.E.2d at 321. This Court held that “[a]lthough defendant may well have had the requisite intent, there is no evidence he ever had the capability to exercise dominion and control over the original package. Therefore, he never had constructive possession of the trafficking amount of marijuana.” Id. at 95, 527 S.E.2d at 322. This Court stated that “[a]n appropriate charge under such circumstances would be an attempt[.]” Id. This Court then determined that attempted trafficking in marijuana by possession was a lesser-included offense of trafficking in marijuana by possession and remanded to the trial court to “enter judgment upon a conviction of attempt to traffic in marijuana by possession.” Id . at 97, 527 S.E.2d at 323.
The State distinguishes Clark on the grounds that Clark turned on this Court's analysis of the quantity element of the trafficking in marijuana charge. In the present case, the State argues that there was ample evidence of Defendant's knowledge of the contents of the package, as well as of Defendant's purposefully driving to the house and approaching the package. For the reasons discussed below, we agree with the State.
“Possession of a controlled substance may be actual or constructive. ‘A person has actual possession of a substance if it is on his person, he 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. Ferguson, 204 N.C.App. 451, 459, 694 S.E.2d 470, 477 (2010) (citations omitted). A person has constructive possession of a controlled substance “when, while not having actual possession, he has the intent and capability to maintain control and dominion over [the controlled substance.]” Id. “As a general rule, ‘ “mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession.” ‘ “ Id. at 459–60, 694 S.E.2d at 477 (citation omitted).
“Constructive possession of drugs is most often shown by evidence the defendant has exclusive possession of the property in which the drugs are located.” State v. Bowens, 140 N.C.App. 217, 223, 535 S.E.2d 870, 874 (2000) (citations omitted). “ ‘Unless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession.’ “ Ferguson, 204 N.C.App. at 459, 694 S.E.2d at 477 (citations omitted). “Possession of the property where the drugs are located, either exclusive or nonexclusive, is not, however, the sole method of showing constructive possession. Evidence the defendant was ‘within close juxtaposition to a narcotic drug,’ along with other incriminating evidence can constitute constructive possession.” Bowens, 140 N.C.App. at 223, 535 S.E .2d at 874 (citations omitted).
In the present case, there was no clear evidence that Defendant had actual possession of the package containing the marijuana. Rather, Agent Hawkins testified that he could not “say if [Defendant] actually physically had both hands on the box or not.” However, as discussed above, in order to prove constructive possession, the State need not prove that Defendant actually touched the package. We must examine whether there was sufficient evidence that Defendant had the “intent and capability to maintain control and dominion over” the package. Ferguson, 204 N.C.App. at 459, 694 S.E.2d at 477 (citations omitted).
In the present case, the evidence did not tend to show that Defendant had exclusive possession of the place where the contraband was found. The house appeared to have been abandoned. Therefore, the State must have shown other incriminating circumstances sufficient for the jury to find that Defendant had constructive possession. Defendant concedes in his brief that “[t]he evidence establishes the premises as vacant, a ‘dummy address' ... which Defendant [ ] entered only the single time for the purpose of taking possession of the marijuana, using a note and a GPS device to locate the property.”
The State offered evidence tending to show that: Defendant had a sheet of paper with “29 Fort Dale Drive or Road” written on it as well as a “GPS on the dashboard with the address in it [;]” Defendant drove by the house; Defendant backed up to the carport of the house and opened the trunk of the vehicle; Defendant stood over the package with his hands out. Based on these facts, we hold that the jury could infer that when Defendant arrived at the carport, opened the trunk of the vehicle, and stood over the package with his hands out, he had the intent to control the package. Given the fact that Defendant placed his vehicle at the carport with the trunk open, and was standing over the package, about to pick it up, we also hold that the jury could infer that he had the capability to exercise control over the package. On these facts, we hold that there was sufficient evidence to survive Defendant's motion to dismiss trafficking by possession.
C. Conspiracy to Traffic in Marijuana by Possession
Defendant next argues the trial court erred by denying his motion to dismiss the charge of conspiracy to traffic in marijuana by possession. Defendant contends there was insufficient evidence that he entered into an agreement with anyone else regarding the shipment of the package. In State v. Jenkins, 167 N.C.App. 696, 606 S.E .2d 430,aff'd,359 N.C. 423, 611 S.E.2d 833 (2005), this Court reviewed the elements of conspiracy to traffic in a controlled substance by possession. We noted:
“In order to prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice. Nor is it necessary that the unlawful act be completed.” A conspiracy may be shown by circumstantial evidence, or by a defendant's behavior. Conspiracy may also be inferred from the conduct of the other parties to the conspiracy. “[P]roof of a conspiracy [is generally] established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.”
Id. at 699–700, 606 S.E.2d at 432–33 (citations omitted).
In the present case, the State presented evidence that a package was shipped by a person using the name “Pedro Ayala” to a person named “Martin Preciado,” at 29 Forestdale Drive in Asheville. The package contained nineteen pounds of marijuana. The package originated in Texas and was shipped to North Carolina. Defendant arrived at the location to which the package was shipped, carrying a slip of paper with “29 Fort Dale Drive or Road” in Asheville, written on it, as well as a GPS device “with the address in it.” However, the agents never identified Pedro Ayala, the sender of the package, nor did they identify Martin Preciado, the intended recipient.
Defendant contends the evidence was inconclusive as to the party involved in shipping the package, and that there was nothing to suggest that Defendant did not mail the package to himself from Texas. While Defendant is correct that the jury could infer, from the evidence presented, that there was only one person involved, we must view the evidence in the light most favorable to the State. In the light most favorable to the State, there was sufficient evidence regarding an agreement between Defendant and a second party using the name “Pedro Ayala” to ship nineteen pounds of marijuana from Texas to North Carolina to survive a motion to dismiss. We therefore find no error in the trial court's denial of Defendant's motion to dismiss.
III. Agent Goodridge's Testimony
Defendant next argues that the trial court erred by overruling Defendant's objection to certain portions of Agent Goodridge's testimony. During the cross-examination of Agent Goodridge, the following exchange occurred:
[Defendant's Counsel]. Well, what investigation was performed, other than the arrest of [Defendant]?
[Agent Goodridge]. Typically, after we arrest someone, they decide after they've sat in jail a good while that they want to talk to us.
[Defendant's Counsel]: Objection, Your Honor.
THE COURT: Overruled.
[Agent Goodridge]. They want to talk to us and
Defendant contends that this testimony was an unconstitutional comment on Defendant's exercise of his right to remain silent.
Defendant cites State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001) in support of his argument. In Ward, our Supreme Court discussed a criminal defendant's right to remain silent, stating:
It is well established that a criminal defendant has a right to remain silent under the Fifth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution. A defendant's decision to remain silent following his arrest may not be used to infer his guilt, and any comment by the prosecutor on the defendant's exercise of his right to silence is unconstitutional. “A statement that may be interpreted as commenting on a defendant's decision [to remain silent] is improper if the jury would naturally and necessarily understand the statement to be a comment on the [exercise of his right to silence.]”
Id. at 266, 555 S.E.2d at 273 (citations omitted).
In Ward, our Supreme Court addressed certain statements made by the prosecutor and noted:
In the instant case, the prosecutor argued the following regarding defendant's post-arrest silence while at Dorothea Dix Hospital:
He started out that he was with his wife and child or wife and children or something that morning. We know he could talk, but he decided just to sit quietly. He didn't want to say anything that would “incriminate himself.” So he appreciated the criminality of his conduct all right.
He was mighty careful with who [sic] he would discuss that criminality, wasn't he? He wouldn't discuss it with the people at Dix.
Id. The Supreme Court held that “the prosecutor impermissibly commented on defendant's silence in violation of his rights under the state and federal Constitutions.” Id.
In the present case, Defendant argues that Agent Goodridge's testimony was an impermissible comment on Defendant's having remained silent. We first note that, as the trial court stated, Agent Goodridge's testimony does not appear to be a comment on Defendant's actions. Rather, Agent Goodridge was asked by Defendant's counsel what investigation took place after Defendant's arrest, and he testified that people tend to speak to police officers after they had been forced to wait in jail for some time. Agent Goodridge did not testify whether Defendant did or did not speak to police officers, nor did he offer any insight into why Defendant would or would not have spoken to police officers. In light of the full context of the statements, we hold that Agent Goodridge's testimony was not offered as a comment on Defendant's decision to remain silent and the jury would not naturally and necessarily have understood the statement to be a comment on the exercise of Defendant's right to silence. See Ward, 354 N.C. at 266, 555 S.E.2d at 273. Therefore, we find no error.
No error. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).