Opinion
No. COA11–1209.
2012-08-7
STATE of North Carolina v. Omsar RIVERA and Jose Maureco Canales.
Attorney General Roy Cooper by Special Deputy Attorney General Grady L. Balentine, Jr. and Assistant Attorney General Barry H. Bloch for the State. M. Alexander Charns for defendant-appellant Jose Maureco Canales.
Appeal by defendants from judgment entered 1 February 2011 by Judge Jesse B. Caldwell III in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 March 2012. Attorney General Roy Cooper by Special Deputy Attorney General Grady L. Balentine, Jr. and Assistant Attorney General Barry H. Bloch for the State. M. Alexander Charns for defendant-appellant Jose Maureco Canales.
Glover & Petersen, P.A. by Ann B. Petersen for defendant-appellant Omsar Rivera.
STEELMAN, Judge.
Where there were sufficient incriminating circumstances to support constructive possession, and there was evidence that Rivera directed the movements of the motor vehicle operated by Canales, the trial court did not err in denying Rivera's motion to dismiss the charges of trafficking in cocaine by possession and transportation at the close of all the evidence. Where Canales fails to make an argument in support of his contention that the trial court erred in denying his motion to dismiss, that argument is dismissed. The trial court did not abuse its discretion in denying defendants' mistrial motions. Defendants' ineffective assistance of counsel arguments are dismissed without prejudice to file in a motion for appropriate relief. Where defendant was represented by appointed counsel, the trial court did not err in not ordering the State to respond to defendant's pro se motions. Constitutional errors cannot be asserted for the first time on appeal. The determination of the weight of controlled substances is based upon the weight of the entire mixture, not the portion that is pure cocaine. The trial court did not err in refusing to submit possession of cocaine as a lesser offense of trafficking in cocaine by possession.
I. Factual and Procedural History
On 18 July 2009, Omsar Rivera (Rivera) and Jose Maureco Canales (Canales) traveled from Georgia to Charlotte in a Ford pickup truck that Canales was purchasing. The purpose of the trip was ostensibly to look at a construction job. Rivera directed Canales to pull into a McDonald's parking lot. Canales went inside for a period of time. When he returned, the truck had been moved, and the cover of the bed of the truck had been raised. A black Toyota van was parked next to the pickup truck. Rivera instructed Canales to follow the Toyota van. The van proceeded down Albemarle Road. A red Navigator was now behind the pickup truck. The Navigator was also from Georgia and was operated by Rolando Brown. All three vehicles turned left onto Farm Pond Lane.
Based upon a tip from a confidential informant, Charlotte–Mecklenburg Police stopped the pickup and the Navigator. The Toyota took off and was not stopped. Canales gave permission to search his vehicle. A backpack containing cocaine was found in the bed of the pickup truck under some construction equipment. Brown gave permission to search the Navigator, and methamphetamines were found.
On 11 January 2010 and 22 February 2010, Rivera and Canales were indicted for trafficking in cocaine by possession and trafficking in cocaine by transportation. On 22 February 2010, Rivera was indicted for conspiracy to traffic in cocaine by possession with Canales. The amount alleged in each of the indictments was 200–400 grams. The cases against Rivera, Canales, and Brown were joined for trial. Prior to trial, the trial court granted Canales's motion in limine to exclude statements made by the confidential informant to Officer Rendon. At the close of the State's evidence, the trial court dismissed the conspiracy charge as to each defendant. On 31 January 2011, a jury found each defendant guilty of two trafficking charges. As to each defendant, the two charges were consolidated for judgment, and each defendant was sentenced to statutorily-mandated active prison terms of 70–84 months, along with a fine of $100,000.00.
The record includes no indictment for conspiracy to traffic in cocaine for Canales. Apparently, counsel failed to include it in the record.
Both Rivera and Canales appeal.
II. Sufficiency of the Evidence
Both Rivera and Canales contend that the trial court erred in not dismissing the charges against them based upon the insufficiency of the evidence. We disagree.
A. Standard of Review
We review the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). The trial court must determine whether there is substantial evidence of each essential element of the offense charged and that the defendant is the perpetrator of the offense. Id. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985).
“In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence.” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (2002). “For circumstantial evidence to be sufficient to overcome a motion to dismiss, it need not, however, point unerringly toward the defendant's guilt so as to exclude all other reasonable hypotheses.” State v. Steelman, 62 N.C.App. 311, 313, 302 S.E .2d 637, 638 (1983). “The defendant's evidence, unless favorable to the State, is not to be taken into consideration.” State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971).
B. Analysis
Trafficking in cocaine by transportation and trafficking in cocaine by possession require the State to prove that the substance was knowingly possessed and transported. State v. Baldwin, 161 N.C.App. 382, 391, 588 S.E.2d 497, 504 (2003).
It is well-established that a defendant may be convicted for a possessory offense where the defendant had actual or constructive possession of the contraband. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). A defendant has actual possession of contraband if it is on his or her person, the defendant is aware of its presence, and either alone or with others 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). Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the contraband. State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009). The defendant may have the power to control either alone or jointly with others. Id.
When the defendant does not have exclusive control of the place where the contraband is found, the State must show other incriminating circumstances beyond mere association or presence to establish sufficient evidence of constructive possession. Id.; State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998). “As the terms ‘intent’ and ‘capability’ suggest, constructive possession depends on the totality of circumstances in each case, and thus ordinarily the question will be for the jury.” State v. Slaughter, ––– N.C.App. ––––, ––––, 710 S.E.2d 377, 383 (Hunter, J., dissenting), rev'd for reasons stated in the dissent,365 N.C. 321, 718 S.E.2d 362 (2011) (per curiam) (internal quotation marks omitted).
The determination of whether sufficient incriminating circumstances exist to support constructive possession is fact-specific. We consider the totality of the circumstances, and no single factor controls. State v. McBride, 173 N.C.App. 101, 106, 618 S.E.2d 754, 758 (2005). Among the factors to be considered is the defendant's proximity to the contraband. Miller, 363 N.C. at 100, 678 S.E.2d at 595.
Necessarily, power and intent to control the contraband material can exist only when one is aware of its presence. Therefore, evidence which places an accused within close juxtaposition to [contraband] under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession.
Slaughter, ––– N.C.App. at ––––, 710 S.E.2d at 384.
In State v. Ferguson, 204 N.C.App. 451, 694 S.E.2d 470 (2010), the Court considered factors such as the defendant's connection to the place where the contraband was found, behavior, incriminating admissions, relationship with the vehicle's owner, history of selling drugs, and possession of an unusually large amount of cash. Ferguson, 204 N.C.App. at ––––, 694 S.E.2d at 478–79. In Ferguson, the defendant was a passenger in the back of the mini-van, did not behave suspiciously, made no incriminating admissions, and had no relationship with the driver of the mini-van. Ferguson, 204 N.C.App. at ––––, 694 S.E.2d at 479. Where contraband was located underneath the front passenger seat, the Court concluded that the State presented insufficient evidence of constructive possession by the passenger. Ferguson, 204 N.C.App. at ––––, 694 S.E.2d at 479.
i. Rivera
Neither the trafficking by possession nor the trafficking by transportation charges against Rivera were submitted to the jury under an “acting in concert” theory. The State was required to present substantial evidence that Rivera personally committed each essential element of the crime. See State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996).
Rivera argues that his mere presence in the truck where drugs were found is not sufficient proof of his possession of the drugs. The drugs were found in Canales' truck, which Canales operated at the time they were found. Rivera also cites us to his trial testimony, where he explained why he ran from police after the drugs were discovered and testified that he did not know that the drugs were hidden in the truck. We are not persuaded.
As to the trafficking by possession charge, we hold that the State presented sufficient evidence of incriminating circumstances to warrant submission of this charge to the jury on a theory of constructive possession. Rivera was the instigator of the trip from Georgia to Charlotte. Rivera directed Canales to go to a McDonald's located at the Sugar Creek Road exit from Interstate Highway 85 in Charlotte and directed Canales to follow the Toyota van from McDonald's. Based upon the testimony of Canales, Rivera controlled the entire trip from Georgia up until the stop by Charlotte–Mecklenburg police officers. While Canales was inside McDonald's, the truck was moved, the bed cover raised, and the Toyota van that they subsequently followed arrived in the parking lot. While Rivera correctly notes that flight, standing alone, is not sufficient to create a presumption of guilt (citing State v. Gaines, 260 N.C. 228, 232, 132 S.E.2d 485, 487 (1963)), that does not mean that flight cannot be considered, together with other factors, in determining whether there were sufficient incriminating circumstances present to support submission of trafficking by possession to the jury. See, e.g., State v. Sinclair, 191 N.C.App. 485, 492–93, 663 S.E.2d 866, 872 (2008). We further note that defendant was present in the vehicle at the time the drugs were found and fled from the police at that time. All of these facts constituted sufficient incriminating circumstances to support the submission of the charge of trafficking by possession to the jury.
As to the charge of trafficking by transportation, only “a person in the actual or constructive possession of [contraband], absent conspiracy or aiding and abetting, could be guilty of the unlawful transportation thereof.” State v. Boyd, 154 N.C.App. 302, 307, 572 S.E.2d 192, 196 (2002) (alteration in original).
“In the context of drug trafficking, transportation is any real carrying about or movement from one place to another.” State v. Sores, 182 N.C.App. 762, 763, 643 S.E.2d 49, 50 (2007) (internal quotation marks omitted). We have held that the State presented sufficient evidence of Rivera's constructive possession of the cocaine. In Boyd, we held that the State could rely upon constructive possession to support the element of transportation. Further, there was evidence that Rivera was in control of and directing the movements of the vehicle that was transporting the cocaine. This was sufficient circumstantial evidence to support submission of trafficking by transportation to the jury.
Rivera's argument is without merit.
ii. Canales
Canales's entire argument is that “[t]aken in the light most favorable to the State, the evidence was speculative that Mr. Canales knowingly possessed and transported cocaine. See State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983) (murder prosecution).”
It is not the duty of this Court to supplement defendant's brief with argument. See, e.g., State v. Carter, ––– N.C.App. ––––, ––––, 718 S.E.2d 687, 694 (2011) (where the defendant failed to cite any supporting authority for its argument, the defendant is “not entitled to appellate relief”); State v. Capers, ––– N.C.App. ––––, ––––, 704 S.E.2d 39, 47 (2010), appeal dismissed and disc. review denied,365 N.C. 187, 707 S.E.2d 236 (2011) ( “Since defendant makes no specific argument and cites no supporting authority [,]” the Court does not address the issue.). This argument is deemed abandoned under N.C.R.App. P. 28(b)(6) (2011).
III. Denial of Motions for Mistrial
Both Rivera and Canales contend that the trial court erred in denying their motions for a mistrial. We disagree.
A. Standard of Review
“Whether or not to declare a mistrial is a matter within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a gross abuse of such discretion.” State v. Brunson, 180 N.C.App. 188, 191, 636 S.E.2d 202, 204 (2006), aff'd, 362 N.C. 81, 653 S.E.2d 144 (2007).
“This Court will find an abuse of discretion only where a trial court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Theer, 181 N.C.App. 349, 364, 639 S.E.2d 655, 665 (2007) (internal quotation marks omitted). The trial court's ruling is given “great deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable.” Id.
B. Testimony Regarding Two Vehicles From Georgia
A “mistrial should not be allowed unless there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant's case and make it impossible for the defendant to receive a fair and impartial verdict.” Brunson, 180 N.C.App. at 191, 636 S.E.2d at 204 (internal quotation marks omitted). “When the trial court instructs the jury not to consider incompetent evidence, any prejudice is ordinarily cured.” Id.
The State called Officer Brandon Kimble of the Charlotte–Mecklenburg Police Department as a witness at trial. After identifying Rivera and Canales, the following exchange took place:
[Prosecutor]: Officer Kimble, how was it that you came in contact with Mr. Canales and Mr. Rivera?
A. Officer Decker had called me on my phone and asked for some assistance in a traffic stop. There was going to be two vehicles coming from Georgia delivering meth and cocaine.
MR. HOEL [Counsel for Rivera]: Objection, your Honor.
Ms. McCLURE [Counsel for Canales]: Objection.
Mr. SANDERS [Counsel for Brown]: Objection.
Mr. HOEL: Motion to strike.
THE COURT: Motion to strike allowed. Members of the jury, do not consider the statement of the witness which I have now stricken in your deliberations or in your verdict.
The jury was excused from the courtroom. Rivera and Canales moved for a mistrial. The trial court denied these motions, noting that he had stricken the offending testimony, that there was no evidence that the jury would not follow the court's admonitions, and that the court had previously instructed the jury that they “closely follow and faithfully adhere to the instructions of the Court.”
Jurors are presumed to have complied with instructions of the trial court. State v. Clark, 298 N.C. 529, 534, 259 S.E.2d 271, 274 (1979). In the instant case, the trial court immediately granted the motion to strike, instructed the jury to disregard the testimony, and after careful consideration of argument of counsel, denied the motion, explaining on the record the rationale for that decision. Under these circumstances, we cannot say that the denial of defendants' mistrial motion was “so erroneous as to amount to a manifest abuse of discretion.” State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995). See also Clark, 298 N.C. at 534, 259 S.E.2d at 275 (mistrial motion properly denied where trial court conducted hearing and instructed jurors to disregard the improper evidence).
This argument is without merit.
C. Testimony Regarding Conversations in a Cell
In addition to the first motion for a mistrial made by both defendants, Rivera made a second motion for a mistrial. Canales was testifying on re-direct examination by his counsel. He had been previously cross-examined by counsel for Rivera about conversations with Rivera that took place while they were in jail. At a conference prior to the re-direct examination, the trial court strongly suggested that counsel not reference where the conversation took place on re-direct examination. In response to a question that did not indicate where the conversation took place, Canales made reference to what happens when “you're in a cell block with certain inmates[.]” The trial court sustained an objection, granted its own motion to strike, and ordered the jury to disregard the testimony. Counsel for Canales then proceeded to ask him about contact that he had with Rivera in the same cell. Canales gave no answer. The trial court sustained Rivera's objection. After conducting a hearing outside the presence of the jury, the trial court denied Rivera's motion for a mistrial and instructed the jury “to strike that question from your memory and consideration and in no way are you to consider that question or any portion thereof in your jury deliberations or in your verdict as to any of these cases.”
In State v. McQueen, 165 N.C.App. 454, 598 S.E.2d 672 (2004), a witness testified that the defendant was in prison. McQueen, 165 N.C.App. at 457, 598 S.E.2d at 675. The trial court instructed the jury not to consider the statement. McQueen, 165 N.C.App. at 458, 598 S.E.2d at 676. The Court held that “[i]n light of the trial court's curative instruction, we conclude the trial court did not abuse its discretion in denying Defendant's motion for a mistrial.” Id.
After hearing argument outside the presence of the jury, the trial court instructed the jury not to consider the question. There is no indication the jury was unable to disregard the testimony as instructed by the trial court. We hold that the trial court did not abuse its discretion in denying Rivera's second motion for a mistrial.
This argument is without merit.
IV. Ineffective Assistance of Counsel
“In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147 N.C.App. 549, 553, 557 S .E.2d 544, 547 (2001). “In order to determine whether a defendant is in a position to adequately raise an ineffective assistance of counsel claim, we stress this Court is limited to reviewing this assignment of error only on the record before us[.]” Stroud, 147 N.C.App. at 554, 557 S.E.2d at 547. We are “without the benefit of information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor[,] that could be provided in a full evidentiary hearing on a motion for appropriate relief.” Stroud, 147 N.C.App. at 554–55, 557 S.E.2d at 547 (alteration in original) (internal citation and quotation marks omitted).
“Our Supreme Court has instructed that should the reviewing court determine the IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's rights to reassert them during a subsequent MAR proceeding.” Stroud, 147 N.C.App. at 554, 557 S.E.2d at 547 (internal quotation marks omitted).
Both Rivera and Canales argue that they are entitled to a new trial based upon ineffective assistance of counsel. Based on the record before us, the claim of ineffective assistance of counsel cannot properly be decided on the merits. “Trial counsel's strategy and the reasons therefor are not readily apparent from the record, and more information must be developed to determine if defendant's claim satisfies the Strickland test.” State v. Al–Bayyinah, 359 N.C. 741, 753, 616 S.E.2d 500, 509–10 (2005). We dismiss this issue without prejudice to the right of each defendant to raise this claim in a post-conviction motion for appropriate relief.
V. Rivera's Pro Se Motion
As part of his argument on ineffective assistance of counsel, Rivera contends that he was prejudiced by the failure of the trial court to require the State to respond to his pro se motion in limine. We disagree and dismiss this argument.
This motion was filed on 18 January 2011, while Rivera was represented by appointed counsel. “Having elected for representation by appointed defense counsel, defendant cannot also file motions on his own behalf or attempt to represent himself. Defendant has no right to appear both by himself and by counsel.” State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000). The trial court did not err in failing to require the State to respond to defendant's pro se motion.
This argument is without merit.
VI. Failure to Suppress Evidence Sua Sponte
Canales contends that the trial court committed plain error by failing to suppress evidence seized as a result of an unconstitutional traffic stop. We disagree.
Constitutional issues not raised at trial cannot be raised on appeal. State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009). Defendant failed to object to the evidence at trial. Therefore, we need not address his allegation that the denial of his motion was a violation of his constitutional rights. Even assuming arguendo that defendant can raise this issue as plain error on appeal, it is still without merit.
“[A] defendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.” State v. Verrier, 173 N.C.App. 123, 128, 617 S.E.2d 675, 679 (2005) (alteration in original). “By simply relying on the use of the words ‘plain error’ as the extent of his argument in support of plain error, [the] defendant has effectively failed to argue plain error and has thereby waived appellate review.” Id. (alteration in original).
In the instant case, Canales recites the words of the plain error test: “(i) a different result probably would have been reached but for the error or (ii) the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial[.]” This argument is deemed abandoned. N.C.R.App. P. 28(b)(6) (2011).
VII. Instruction on Lesser Included Offense
Canales contends that the trial court erred by failing to instruct the jury on the lesser included offense of possession of cocaine. We disagree.
The trial court must charge on a lesser included offense if: “(1) the evidence is equivocal on an element of the greater offense so that the jury could reasonably find either the existence or the nonexistence of this element; and (2) absent this element only a conviction of the lesser included offense would be justified.” State v. White, 142 N.C.App. 201, 205, 542 S.E.2d 265, 268 (2001).
At trial, Jennifer Leiser, a chemist with the Charlotte–Mecklenburg Police Department, testified concerning her analysis of three packages relevant to the cases of Rivera and Canales. Two of the packages were found to contain benzocaine, a non-controlled substance. The other was found to contain cocaine and had a weight, net of packaging, of 307.53 grams. No analysis was made as to the purity of the cocaine mixture, only that cocaine was present.
Canales's argument is a derivation of one that has been considered and rejected by the courts of this State on many occasions: that the weight for purposes of determining whether trafficking amount was present should only include what was pure cocaine and not that of the mixture. In the instant case, defendant argues that, since the powder tested was a cocaine mixture, the jury should have had the option of finding that the weight of the cocaine was less than a trafficking amount by submitting the lesser charge of possession of cocaine.
“Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine ... or any coca leaves ... or any mixture containing such substances, shall be guilty of a felony[.]” N.C. Gen.Stat. § 90–95(h)(3) (2011).
.N.C. Gen.Stat. § 90–95 has since been amended. The subsection relevant to the instant case is unchanged.
It is well established that the total quantity of the mixture containing cocaine is the relevant weight to be used in determining a violation under N.C. Gen.Stat. § 90–95(h)(3). See, e.g., State v. Broome, 136 N.C.App. 82, 85, 523 S.E.2d 448, 451 (1999) (defendant properly convicted of trafficking by possession of 200–400 grams of cocaine in violation of N.C. Gen.Stat. § 90–95(h)(3) based upon seized package of cocaine mixture weighing 273 grams and containing only 27 grams of pure cocaine), appeal dismissed and disc. review denied, 351 N.C. 362, 543 S.E.2d 136 (2000); State v. Tyndall, 55 N.C.App. 57, 61, 284 S.E.2d 575, 577 (1981).
Reid, 151 N.C.App. at 427–28, 566 S.E.2d at 191.
The trial court did not err in denying Canales's request to charge that jury on possession of cocaine.
DISMISSED IN PART, NO ERROR IN PART. Judges ELMORE and STROUD concur.
Report per Rule 30(e).