Opinion
No. COA11–1271.
2012-04-17
STATE of North Carolina v. Jose Alejandro M. ARCINIEGA, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Elizabeth Guzman, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
On writ of certiorari to review judgments entered on 16 September 2009 by Judge Arnold O. Jones, II in Superior Court, Wayne County. Heard in the Court of Appeals 8 March 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Elizabeth Guzman, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.
STROUD, Judge.
Jose Alejandro M. Arciniega (“defendant”) appeals from his convictions for one count of trafficking in methamphetamine by possession and one count of trafficking in methamphetamine by transportation. For the following reasons, we find no error in defendant's trial.
I. Background
On 6 April 2009, defendant was indicted on one count of trafficking in methamphetamine by possession and one count of trafficking in methamphetamine by transportation. Defendant was tried on these charges at the 14 September 2009 Criminal Session of Superior Court, Wayne County. The State's evidence presented at trial tended to show the following: In December of 2007, Lance Anthony, an investigator with the Wake County Sheriff's Office assigned to the United States Drug Enforcement Administration as part of an interagency Drug Task Force (“the task force”), began investigating a large Mexican-based drug trafficking organization which had ties to a drug cartel known as “La Familia.” This organization was suspected of bringing large amounts of methamphetamine, cocaine, and, sometimes, marijuana into the United States through California, and Texas, and moving those drugs to final destinations in states such as North Carolina and Ohio. During the course of the investigation, Investigator Anthony identified and obtained an order to wiretap the cell phone of an individual named Daniel Rios and learned on 18 August 2008 that Mr. Rios would be receiving a large amount of cocaine and methamphetamine from Riverside, California in an “eighteen-wheeler”. Investigators began surveillance on Mr. Rios' house in Duplin County just outside of Wayne County and on several occasions noticed a white Chevy Suburban and a blue Dodge Neon parked behind his residence. On August 20th Mr. Rios drove to the RDU Airport and picked up an individual named Jaime Navarrette and Investigator Anthony learned that this individual was to act as transportation coordinator to make sure that Mr. Rios met the truck carrying the drugs. Investigators subsequently learned that the shipment was to arrive on August 23rd and it would be coming from the western part of the State. Investigator Anthony testified that in his experience when there was a large shipment of drugs, payment for the drugs was made separately from the receipt of the drugs. This was done to prevent the organization from taking a “double hit” by having both the drugs and money confiscated by law enforcement at the same time. On August 23, investigators observed a red truck going to Mr. Rios' residence and they intercepted a call by Mr. Rios' brother telling Mr. Rios that he had left money in the center console of the Suburban. At around 11 a.m. that same day, investigators observed the Suburban leaving Mr. Rios' residence and it started traveling west towards Raleigh on Highway 70. As the investigators followed the Suburban, they noticed the red truck and the blue Dodge Neon driving around the Suburban almost like they were doing counter surveillance, looking for law enforcement. Investigator Anthony did not know where Mr. Rios planned to meet the truck. Investigator Anthony observed Mr. Rios and Mr. Navarrette in the Neon but could not tell who was in the Suburban because the windows were tinted; the red truck had at least three individuals in it. Investigator Anthony and other members of the task force followed the three vehicles westbound on I–40. The Neon and the Suburban exited off of the interstate near Burlington. The Neon met up with a semi-truck parked on an adjacent service road. The driver of the Neon motioned to the semi-truck to follow it and the truck followed the Neon down the interstate to the next exit to a truck stop. The semi-truck parked at the truck stop in line with the other trucks but investigators did not follow it because they did not want to compromise their surveillance. The semi-truck then left the first truck stop and drove to the Petro truck stop across from the Hispanic flea market in Burlington. Sergeant Brian Dawson, a sergeant with the Wayne County Sheriff's Office assigned to the task force, explained that they could not continue to follow or observe the truck without compromising their investigation because the flea market was down a “desolate road[,]” the road had only one way in and out, and there were several hundred or thousand Hispanics at the flea market.
At the same time, the Suburban was observed meeting up with the red truck at a McDonald's restaurant near the interstate. When all of the individuals exited their vehicles to go into the McDonald's, defendant was not identified as being with them. After leaving McDonald's, the driver of the Suburban got back on I–40/85 eastbound and followed I–85 into Durham, exiting off the interstate and circling back in the opposite direction then traveling for about 10 miles westbound then exiting off the interstate and circling back eastbound, repeating this process several times as if the driver was waiting on something. At one point the driver of the Suburban stopped at a drug store parking lot and got out of the vehicle. Chris Dawson, an agent with the North Carolina State Bureau of Investigation assigned to the task force, noted that the driver was not defendant. Eventually, the Suburban got back on I–85 westbound and traveled to Mebane and took an exit at the flea market. The Suburban entered the road to the flea market. None of the task force members entered the road to the flea market in order not to compromise their investigation.
At around 4 p.m., investigators observed the Neon and the Suburban leave the flea market and head eastbound on the interstate towards Wayne County; defendant was the driver and the only person in the Suburban. After the Suburban left the flea market, Sergeant Dawson approached the semi-truck and was given consent by the driver to search the truck but did not find anything significant. As the Suburban traveled eastbound on the interstate, Agent Dawson kept visual contact with it. He observed the Suburban travel eastbound on I–40/85, following I–40 toward Raleigh. Near Raleigh, the Suburban took an exit towards the airport but drove past the airport. The Suburban continued down I–40 eastbound then exited onto Highway 70 towards Goldsboro. Investigator Anthony testified that drug deals usually occurred in very concealed locations where individuals feel safe and there are parts of the investigation that police will not see. He believed that the drug transaction occurred at the flea market or the side of the road.
Michael Cox, a sergeant with the Goldsboro/Wayne County Drug Squad as part of the Wayne County Sheriff's Office, testified that he was part of the investigation and on 23 August 2008 Sergeant Cox received a call from Agent Dawson for assistance in pulling over the Suburban and a blue Dodge Neon when they entered Wayne County, as it was likely they were carrying drugs. Sergeant Cox observed the Suburban followed by the blue Neon on Highway 70 and initiated a stop of the Suburban for a window tint violation. He also instructed another sheriff's deputy to stop the Neon. Sergeant Cox testified that in his experience that higher level drug dealers will not want to be associated with a “mass quantity” of drugs but would still want to be present or near the driver carrying the drugs in a “tag-along vehicle[.]” After the Suburban was stopped, Sergeant Cox approached the passenger's side and defendant rolled down the window. Sergeant Cox immediately noticed two cans of Red Bull Energy Drinks in the console and the “overwhelming odor of air freshener coming from the vehicle.” When asked, defendant told Sergeant Cox that he borrowed the Suburban from a man named “Jose” but the vehicle was registered to a “Vanessa Munoz [.]” Sergeant Cox testified that in his experience drug smugglers would attempt to make long trips using energy drinks to keep them alert; use overwhelming air fresheners to hide the scent of drugs from police or dog searches; and drive a vehicle owned by a third party. Sergeant Cox noted that defendant was the only person in the vehicle. When Sergeant Cox asked him for his license, defendant handed him a photocopy of an Oregon driver's license. Sergeant Cox noted that defendant was very nervous when he was stopped and his nervousness increased as the stop continued. When asked where he was going, defendant told Sergeant Cox that he had taken a friend to the airport in Raleigh and was on his way back home to a residence in Wayne County. But defendant could not give Sergeant Cox the name of the friend that he took to the airport.
Detective Matthew Miller, with the Wayne County Sheriff's Office, testified that he assisted Sergeant Cox with the traffic stop of defendant on August 23rd. When he arrived on the scene, Sergeant Cox had already made the stop and Detective Miller approached the Suburban on the driver's side. He noticed that defendant was very nervous, as he was breathing heavily, shaking, and his voice was breaking. Detective Miller wrote defendant a warning ticket for the window tint violation and defendant gave consent to search the Suburban. Detective Miller looked in the jack compartment in the rear cargo area and discovered several duct-taped packages. They also recovered $354 from defendant's person. Sergeant Cox used a field test kit which confirmed that the substance in the packages was methamphetamine and defendant was arrested. Sergeant Cox sent these packages to the lab for analysis. Patti Jo Carroll, a forensic chemist and special agent with the North Carolina State Bureau of Investigation, testified that she conducted a chemical analysis of the five packages recovered from the Suburban and they contained 2,233 grams of methamphetamine.
At the close of the State's evidence, defendant moved to dismiss the charges for insufficiency of the evidence, which was denied. Defendant testified that on 23 August 2008 his friend Raul invited him to go to the Burlington flea market. Raul drove and they met another friend of defendant named Niccho at the flea market. Niccho asked defendant if he would drive his truck back to his house and he would come by sometime that afternoon and pick it up. Niccho explained that he was in a hurry to go with someone else and asked if he would do him a favor and drive it back for him. Defendant agreed and continued shopping a little more and then left the flea market in Niccho's Suburban. As he was driving back to Goldsboro, he took a wrong turn and started driving towards the airport but took the next exit back to I–40 and kept going towards Goldsboro. Defendant testified that he did not notice anyone following him. Defendant testified that he was nervous when he was stopped by the police because he had lost his driver's license and only had a copy of it. He denied drinking any of the energy drinks; did not remember if there were air fresheners in the vehicle; and denied telling Sergeant Cox that he had taken someone to the airport. He did not know Daniel Rios or Jamie Navarrette or that there were drugs in the Suburban prior to the search.
At the close of all evidence, defendant renewed his motion to dismiss, which was again denied. On 16 September 2009, a jury found defendant guilty of both counts. On the same day, the trial court sentenced defendant to two concurrent terms of 225 to 279 months imprisonment for both convictions and to pay fines of $252,335.50 and $250,000.00. This Court granted defendant's petition for writ of certiorari “for the purpose of reviewing the judgments entered 16 September 2009 in Wayne County Superior Court by Judge Arnold O. Jones, II” and appeal was deemed taken on 6 April 2011 “the date of the trial court's determination of whether defendant is entitled to appointment of counsel.”
II. Motion to Dismiss
Defendant argues that the trial court erred when it denied his motion to dismiss as “the State failed to present substantial evidence that he ‘knowingly’ possessed methamphetamine.”
We have stated that
[t]he standard of review for a motion to dismiss is well known. A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.
State v. Phillpott, –––– N.C.App. ––––, ––––, 713 S.E.2d 202, 209 (2011) (citation omitted). Additionally, “[w]hen ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455–56 (citation omitted), cert denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). N.C. Gen.Stat. § 90–95(h)(3b) (2007) states in pertinent part, that
[a] ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of methamphetamine or amphetamine shall be guilty of a felony which felony shall be known as “trafficking in methamphetamine or amphetamine” and if the quantity of such substance or mixture involved:
....
c. Is 400 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 279 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000).
We have stated that “[c]onviction of drug trafficking requires proof that the defendant (1) knowingly (2) possessed or transported a given controlled substance, and also that (3) the amount transported was greater than the statutory threshold amount.” State v. Loftis, 185 N.C.App. 190, 197, 649 S.E.2d 1, 6 (2007) (citation omitted), disc. review denied,362 N.C. 241, 660 S.E.2d 494 (2008).
Defendant challenges only the element of knowledge as to both convictions, arguing that even though the State presented evidence of constructive possession to raise an inference that he knowingly possessed or transported the drugs, he rebutted this inference by testifying that he was simply driving the vehicle back to Wayne County at the request of a friend, he did not know Mr. Rios or Mr. Navarrette, and he had never been to Mr. Rios' residence. Defendant further contends that once he rebutted the inference, the State failed to produce evidence of other incriminating circumstances that would tend to show he knew the drugs were in the vehicle, beyond the insignificant testimony that he was nervous when he was stopped by police. Defendant argues that no evidence was presented that he consumed the energy drinks or placed the air fresheners to mask a smell; defendant was only seen driving the Suburban when it left the flea market; he was never connected to the investigation in any way; no one saw him put the drugs in the vehicle; and none of the State's expert witnesses tied him to the crime. Defendant concludes that “[t]he State's evidence that [he] knowingly possessed and transported the methamphetamine hidden in the back of the Suburban was insufficient as a matter of law.”
This Court has stated that “[t]he 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). Here, the State pursued these charges on the theory of constructive possession. Additionally, the charge of trafficking in cocaine by transportation also requires the State to show that defendant had actual or constructive possession of the cocaine. See State v. Boyd, 154 N.C.App. 302, 307, 572 S.E.2d 192, 196 (2002) (stating that “ ‘[O]nly a person in the actual or constructive possession of [contraband], absent conspiracy or aiding and abetting, could be guilty of the unlawful transportation thereof.’ “ (alterations in original) (emphasis omitted) (quoting State v. Wells, 259 N.C. 173, 177, 130 S.E.2d 299, 303 (1963))), cert denied,357 N.C. 463, 586 S.E.2d 104 (2003). Therefore, if there was sufficient evidence to show constructive possession, this would create an inference of knowledge to support sending to the jury the charges of trafficking by possession and trafficking by transport.
As to constructive possession of items found inside of a motor vehicle, we have further stated that
“[a]n inference of constructive possession can ... arise from evidence which tends to show that a defendant was the custodian of the vehicle where the controlled substance was found.” State v. Dow, 70 N.C.App. 82, 85, 318 S.E.2d 883, 886 (1984). In fact, this Court has consistently held that “the driver of a borrowed car, like the owner of the car, has the power to control the contents of the car.” State v. Glaze, 24 N.C.App. 60, 64, 210 S.E.2d 124, 127 (1974); see also Dow, 70 N.C.App. at 85, 883 S.E.2d at 886;State v. Wolfe, 26 N.C.App. 464, 467, 216 S.E.2d 470, 473 (1975). Thus, where contraband material is found in a vehicle under the control of an accused, even though the accused is the borrower of the vehicle, “this fact is sufficient to give rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury.” Glaze, 24 N.C.App. at 64, 310 S.E.2d at 127 (emphasis added).
State v. Tisdale, 153 N.C.App. 294, 297–98, 569 S.E.2d 680, 682 (2002). If the defendant offers evidence rebutting the inference, or the defendant did not have exclusive possession of the vehicle, the State must show “other incriminating circumstances” before constructive possession may be inferred. See id.; State v. Alston, 193 N.C.App. 712, 715, 668 S.E.2d 383, 386 (2008), affirmed by363 N.C. 367, 677 S.E.2d 455 (2009). The relevant inquiry as to other incriminating circumstances has been whether the circumstances would lead a jury to “reasonably determine” that “defendant knew drugs were in the car.” State v. Matias, 354 N .C. 549, 552, 556 S.E.2d 269, 271 (2001). In making this inquiry our Courts have considered factors including smells related to contraband coming from the vehicle, see id., the defendant's nervous or suspicious behavior, State v. Fortney, 201 N.C.App. 662, 668, 687 S.E.2d 518, 523 (2010), or the defendant's possession of a large amount of cash, State v. Neal, 109 N.C.App. 684, 687, 428 S.E.2d 287, 290 (1993).
Here, even though the evidence shows that defendant had control of the Suburban when he was stopped by Sergeant Cox, giving rise to the inference of knowledge and possession of the methamphetamine, defendant's control of the vehicle was not exclusive. Evidence showed that defendant was not the registered owner of the Suburban, police had observed another person driving the vehicle earlier the same day, and it was associated with Daniel Rios. Also, defendant offered evidence to rebut the inference of constructive possession as he testified that it was his friend Niccho's Suburban, he was merely driving it back from the flea market for him, and he did not know what was in the Suburban. Therefore, we must determine whether the evidence discloses “other incriminating circumstances” sufficient for the jury to find defendant had constructive possession of the methamphetamine.
When Sergeant Cox stopped the Suburban and approached the vehicle he immediately noticed two cans of Red Bull Energy Drinks in the console near defendant and the “overwhelming odor of air freshener coming from the vehicle.” Sergeant Cox testified that in his experience drug smugglers would attempt to make long trips using energy drinks to keep them alert and use overwhelming air fresheners to hide the scent of drugs from police or dog searches. Additionally, Sergeant Cox and Detective Miller noted that during the stop defendant was very nervous as he was breathing heavily, shaking, and his voice was breaking and his nervousness worsened as the stop continued. Task Force members and Sergeant Cox noted that the blue Dodge Neon followed defendant in the Suburban all the way from the Burlington flea market, including his detour off the interstate near the airport, and all the way back to Wayne County where he was stopped. Sergeant Cox testified in his experience that higher level drug dealers will not want to be associated with a “mass quantity” of drugs but will still want to be present and will be near the driver in a “tag-along vehicle [.]” Defendant told Sergeant Cox that he borrowed the Suburban from a man named “Jose” but it was registered to a “Vanessa Munoz[.]” Sergeant Cox explained that in his experience drug smugglers would usually drive a vehicle owned by a third party. Defendant also told Sergeant Cox that he had taken a friend to the airport but could not tell him the name of the friend. Additionally, defendant was in possession of $354 when he was arrested. This evidence when viewed in the light most favorable to the State, would reasonably show that defendant knowingly possessed and transported methamphetamine. Therefore, the State's evidence was sufficient to send these charges to the jury and the trial court properly denied defendant's motions to dismiss.
III. Expert Testimony
Defendant next contends that the trial court committed plain error “when it allowed [Investigator] Anthony to testify to facts outside his area of expertise and about which he lacked personal knowledge.” Defendant, citing six separate portions of the trial transcript, argues that Investigator Anthony did not have personal knowledge of but was allowed to testify “about facts that directly implicated [defendant] in the methamphetamine trafficking scheme and about which [Investigator Anthony] was in no better position than the jury to have an opinion[.]” Defendant admits that he did not make specific objections during Investigator Anthony's testimony. Thus, plain error review would be appropriate. See State v. Ellison, –––– N.C.App. ––––, ––––, 713 S.E.2d 228, 233–34 (2011) (citations, quotation marks, and footnote omitted). However, we further note that “[a] defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.” N.C. Gen.Stat. § 15A–1443(c) (2007). “Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.” State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001), rev. dismissed, 355 N.C. 216, 560 S.E.2d 142 (2002). We have further stated that
[s] tatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law. State v. Greene, 324 N.C. 1, 11, 376 S.E.2d 430, 437 (1989), vacated on other grounds,494 U.S. 1022, 108 L.Ed.2d 603 (1990); see also State v. Chatman, 308 N .C. 169, 177, 301 S.E.2d 71, 76 (1983) (holding that the defendant could not assign error to testimony elicited during defense counsel's cross-examination of the State's witness); N.C. Gen.Stat. § 15A–1443(c) (2005).
State v. Gobal, 186 N.C.App. 308, 319–20, 651 S.E.2d 279, 287 (2007), affirmed by362 N.C. 342, 661 S.E.2d 732 (2008). The record shows that the portions of the trial transcript cited by defendant in support of his argument are all from defendant's cross-examination of Investigator Anthony. Accordingly, defendant's argument is without merit. For the foregoing reasons, we find no error in defendant's trial.
NO ERROR. Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).