Opinion
No. 07-636.
Filed February 5, 2008.
Wake County, No. 05 CRS 100016, 100015, 100017-18, 05 CRS 100256, 100258-59.
Appeal by defendants from judgments entered 13 December 2006 by Judge A. Leon Stanback in Superior Court, Wake County. Heard in the Court of Appeals 11 December 2007.
Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Richard E. Jester, for defendant-appellant Castro. Parish Cooke, by James R. Parish, for defendant-appellant Hurtado.
To be admissible as an exception to the hearsay rule, a prior consistent statement must "corroborate the testimony of the witness," meaning that it adds weight or credibility to such testimony. Here, Defendant Castro argues the trial court erred by admitting a police officer's testimony recounting statements made by a witness. Because the police officer's testimony adds credibility to the witness's trial testimony, we find no error in his trial. However, regarding the trial and sentencing of Defendant Hurtado, the State concedes, and we agree, that her case must be remanded for vacation of two of the three conspiracy convictions against her, and for resentencing.
State v. Lee, 348 N.C. 474, 484, 501 S.E.2d 334, 341 (1998).
The evidence presented at trial tended to show that following Johnny Keith's arrest in September 2005 for trafficking cocaine, he revealed the name of his supplier as a person named Teo. Thereafter, under the direction of the Raleigh Police Department, he placed four phone calls to Defendant Teofilo Castro, aka Elim Gomez, to arrange a delivery of cocaine at 202 Purvis Street in Garner, North Carolina.
When Mr. Keith drove to the house, with Lieutenant C. A. Carrigan hiding in the back seat, Defendant Olga Hurtado came out of the house, looked around, and made a phone call on her cell phone. Minutes later, she told Mr. Keith to come into the house, to which he responded by entering and standing in the doorway, while Defendant Hurtado resumed what she was doing in the living room. According to Mr. Keith, he had been to 202 Purvis Street four or five times, recognized Defendant Hurtado from his visits, and had seen her at the home most of the times he had been there.
Shortly thereafter, Defendant Castro walked into the house with a brown bag, led Mr. Keith into Defendant Hurtado's bedroom, and gave him two of the four kilos of cocaine he had with him. Mr. Keith told him that he would sell the cocaine and come back. Mr. Keith then left the residence, where Garner and Raleigh police officers were positioned outside. After Mr. Keith left, a white Infiniti SUV left the residence. Police officers activated blue lights and attempted to stop the vehicle, but instead the vehicle sped off and reached speeds of over 100 miles an hour in a 40 mile-per-hour zone. The vehicle eventually collided with a tractor-trailer truck and the suspect fled on foot. Officers followed and apprehended the suspect, later identified as Defendant Castro. In the SUV, police officers found a large quantity of cocaine, an electronic money counter, and a bag containing rubber bands and rubber gloves.
After Defendant Castro left the residence, Defendant Hurtado drove another vehicle from the house. Garner police stopped the vehicle and arrested her. No drugs or money were found in Defendant Hurtado's vehicle or on her person.
Later that day, police officers executed a search warrant at 202 Purvis Street, where they found a wallet with a picture of Defendant Castro, but with the name of Charles Wright; a safe and a bag containing two kilos of cocaine; and $45,900 inside the safe and $2,000 in a dresser. The officers also found documents with Defendant Hurtado's name on them, including a utility bill identifying her as the resident at 202 Purvis Street.
Defendant Castro was charged with felony speeding to elude a law enforcement officer, three counts of trafficking in cocaine by possession, and one count each of trafficking in cocaine by transportation, conspiracy to traffic cocaine, and maintaining a dwelling for keeping controlled substances. A jury found him guilty on all counts. The trial court sentenced him to two consecutive terms of a minimum of 175 months and a maximum of 219 months imprisonment.
Defendant Hurtado was charged with conspiracy to sell cocaine, conspiracy to deliver cocaine, conspiracy to traffic by possession of 400 grams of more of cocaine, and the felony of intentionally keeping and maintaining a dwelling house for the keeping and/or selling of controlled substances. A jury found Defendant Hurtado guilty of all three conspiracies and the misdemeanor of knowingly maintaining a dwelling house for the keeping of controlled substances. The trial court sentenced her to a minimum of 175 and a maximum of 219 months imprisonment.
Both appeal to this Court. Defendant Castro contends the trial court erred by admitting (I) hearsay evidence and (II) a photograph of him found in Defendant Hurtado's bedroom. Defendant Hurtado contends the trial court erred by: (I) failing to vacate two of her three convictions for drug conspiracy; (II) failing to dismiss the charge of conspiracy to traffic cocaine due to insufficiency of the evidence; and (III) instructing the jury that she would be guilty of knowingly maintaining a dwelling house for the keeping of controlled substances if she were aware "of a high probability of its existence."
Defendant Castro I.
Defendant Castro first argues the trial court erred by admitting Lieutenant Carrigan's hearsay testimony recounting statements made by Mr. Keith. We disagree. Rule 801 of our Rules of Evidence defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). Our Supreme Court has explained:
Any hearsay statement as defined in Rule of Evidence 801(c) is inadmissible except as provided by statute or the Rules of Evidence. One exception to the general bar against admitting hearsay is the prior consistent statement exception to the hearsay rule. Under this exception in North Carolina, there is a liberal policy in allowing prior consistent statements to be admissible even when the witness has not been impeached. To be admissible, the prior consistent statement must first, however, corroborate the testimony of the witness.
State v. Lee, 348 N.C. 474, 484, 501 S.E.2d 334, 340-41 (1998) (internal citations and quotations omitted). To be corroborative, the prior statement "need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony." Id., 501 S.E.2d at 341 (citing State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573-74 (1986)). "[A] trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, non-hearsay purposes." State v. Levan, 326 N.C. 155, 166, 388 S.E.2d 429, 435 (1990).
In this case, Lieutenant Carrigan was permitted to testify over objections that Mr. Keith told him after he was arrested that Defendant Castro used the house on Purvis Street a lot and that "a girl lives there." Mr. Keith later testified that he had a close drug-dealing relationship with Defendant Castro; he had been to the Purvis Street home at least five times to buy drugs; and each time he visited the residence, he saw a "young lady" whom he identified as Defendant Hurtado. Because Lieutenant Carrigan's testimony added credibility to Mr. Keith's trial testimony, the testimony was corroborative and as such, qualifies as a prior consistent statement. See Ramey, 318 N.C. at 469, 349 S.E.2d at 573-74.
Even if the trial court had erred in allowing Lieutenant Carrigan to testify to Mr. Keith's prior statements, the error was harmless because Mr. Keith's testimony provided overwhelming evidence on the same points. See State v. Stephens, 175 N.C. App. 328, 335, 623 S.E.2d 610, 615 (2006) (finding the admission of a hearsay statement harmless error where there was other overwhelming evidence that the defendant committed the crime). Accordingly, we find no error.
II.
Defendant Castro also argues the trial court erred by admitting into evidence a photograph of Defendant Castro found in Defendant Hurtado's bedroom. Specifically, Defendant Castro contends because the photograph was not disclosed to his counsel during discovery, the trial court was required to consider sanctions and to prohibit the State from introducing it. We disagree.
Section 15A-910 of our General Statutes provides that upon a party's failure to comply with discovery matters, the court may
(1) Order the party to permit the discovery or inspection, or(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing evidence not disclosed, or
(3a) Declare a mistrial, or
(3b) Dismiss the charge, with or without prejudice, or (4) Enter other appropriate orders.
N.C. Gen. Stat. § 15A-910 (2005) (emphasis added). In reviewing section 15A-910, our Supreme Court has noted that "while the statute sets out possible curative actions, it does not require the court to impose any sanction. Which sanction, if any, is the appropriate response . . . is entirely within the sound discretion of the trial court." State v. Alston, 307 N.C. 321, 330, 298 S.E.2d 631, 639 (1983). The decision of the trial court will not be reversed absent a showing of abuse of discretion. Id.
Here, even though the State failed to disclose the photograph during discovery, the trial court was not required to impose sanctions. See id. Additionally, there is no evidence in the record that suggests the trial court abused its discretion by not imposing sanctions on the State.
Moreover, even if the admission of the photograph was error, Defendant was not prejudiced because several police officers testified that Defendant Castro was present at Purvis Street on 25 September 2005 and Mr. Keith testified that he was present at the home on at least five other occasions. See State v. Banks, 322 N.C. 753, 761, 370 S.E.2d 398, 404 (1988) (holding that even if defendant's statement about his age was discoverable and should have been produced, defendant was not prejudiced because there was ample evidence from which the jury could have found that defendant was at least 16 years of age). Accordingly, we find no error.
Defendant Hurtado I.
Defendant Hurtado first argues the trial court erred by failing to vacate two of her three convictions for drug conspiracies. We agree.
We have defined a criminal conspiracy as "an agreement, express or implied, between two or more persons to do an unlawful act or to do a lawful act by unlawful means." State v. Brunson, 165 N.C. App. 667, 672, 599 S.E.2d 576, 579 (2004). "It is the number of separate agreements, rather than the number of substantive offenses agreed upon, which determines the number of conspiracies." State v. Worthington, 84 N.C. App. 150, 163, 352 S.E.2d 695, 703, disc. review denied, 319 N.C. 677, 356 S.E.2d 785 (1987) (arresting judgment on two convictions of conspiracy to possess cocaine where the conspiracy to sell and deliver the cocaine necessarily encompassed possession of the substance). In determining whether single or multiple conspiracies are involved, "we look to the nature of the agreement or agreements in light of the following factors: time intervals, participants, objectives, and number of meetings." Brunson, 165 N.C. at 672, 599 S.E.2d at 579 (citing State v. Tabron, 147 N.C. App. 303, 306, 556 S.E.2d 584, 586 (2001)).
Here, Defendant Hurtado was convicted of conspiracy to sell cocaine, to deliver cocaine, and to traffic in cocaine by possession of more than 400 grams. However, the record reveals that all three charges are for conduct that occurred "on or about the 26th day of September, 2005," the only alleged participants are Defendants Castro and Hurtado, and their objective was the distribution of illegal drugs. These factors support the existence of a single conspiracy.
The State concedes that Defendant Hurtado could not be convicted on all three conspiracy charges without a showing of multiple conspiracies. Accordingly, we remand this matter to the trial court to vacate two of the three conspiracies and to thereafter resentence upon the remaining conspiracy.
II.
Defendant Hurtado also argues the trial court erred by failing to dismiss the charge of conspiracy to traffic in cocaine by possession due to insufficiency of the evidence. We disagree.
In reviewing a motion to dismiss in a criminal action, it is well established that
all of the evidence, whether competent or incompetent, must be considered in the light most favorable to the state, and the state is entitled to every reasonable inference therefrom. Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. In considering a motion to dismiss, it is the duty of the court to ascertain whether there is substantial evidence of each essential element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (internal citations omitted). To prove the offense of trafficking in cocaine by possession, the State must show that the defendant (1) knowingly, (2) possessed cocaine, and (3) the amount possessed was greater than the statutory threshold amount. State v. Shelman, 159 N.C. App. 300, 307, 584 S.E.2d 88, 94 (2003); N.C. Gen. Stat. § 90-95(h)(3) (2005). The penalties outlined in section 90-95(h)(3) for trafficking in cocaine by possession also apply to any person convicted of conspiracy to commit that crime. N.C. Gen. Stat. § 90-95(i). A conspiracy is "an agreement, express or implied, between two or more persons to do an unlawful act or to do a lawful act by unlawful means." Brunson, 165 N.C. App. at 672, 599 S.E.2d at 579. To prove a conspiracy, "the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice." State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citation omitted).
Here, Defendant Hurtado was convicted of conspiracy to traffic in cocaine by possession of 400 grams or more pursuant to section 90-95(i). The State's evidence tended to show that Mr. Keith had been involved in previous drug transactions with Defendant Castro at the Purvis Street residence and Defendant Hurtado had been present at the home. Additionally, after arranging to meet Defendant Castro, when Mr. Keith arrived at the Purvis Street residence, Defendant Hurtado made a phone call and shortly after, Defendant Castro came to the residence with a bag containing cocaine. Although the State did not present direct evidence of communications between Defendants Castro and Hurtado, their actions are sufficient to show that a mutual, implied understanding existed. See State v. Turner, 98 N.C. App. 442, 446, 391 S.E.2d 524, 526 (1990) (finding evidence was sufficient to show a conspiracy where the defendant went to a drug seller's home and dropped off a bag and the drug seller later sold the same bag containing cocaine to an undercover officer). Accordingly, we find no error.
We note that the evidence of the agreement between Defendants Castro and Hurtado also supports the existence of a conspiracy to sell and deliver cocaine. Accordingly, we find sufficient evidence exists to support the charges of conspiracy to sell and deliver cocaine.
III.
Defendant Hurtado lastly argues the trial court erred by instructing the jury that it could find her guilty of knowingly keeping or maintaining a building for the keeping of controlled substances if she were aware "of a high probability of its existence." We disagree.
Where no objection to the jury instruction was raised at the trial level, "our review is limited to the question of whether the trial court committed `plain error'. . . ." State v. Bagley, 321 N.C. 201, 211, 362 S.E.2d 244, 250 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988); N.C. R. App. P. 10(b)(2). "In deciding whether a defect in the jury instruction constitutes `plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983). Here, the trial court instructed the jury:
A person knows of an activity if she is aware of a high probability of its existence. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant knowingly kept or maintained a building which was used for the purpose of unlawfully keeping or selling a controlled substance, then it would be your duty to return a verdict of guilty. . . .
Defendant Hurtado argues that by defining "knowing" as "aware of a high probability of its existence," the trial court lessened the burden of proof for the State. However, Defendant Hurtado fails to recognize that in the next sentence, the trial court stated the burden of proof as "beyond a reasonable doubt" that Defendant " knowingly kept or maintained a building which was used for the purpose of unlawfully keeping or selling a controlled substance." (Emphasis added). Additionally, assuming arguendo that the jury instruction was in error, Defendant Hurtado has failed to show that the error had a probable impact on the jury's finding of guilt. See id. at 661, 300 S.E.2d at 378-79. Accordingly, we find no error.
No error in part, remanded in part.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).