STATE v. DOE (AKA MARTINEZ),

STATE OF NORTH CAROLINA

v
.
Wake County


Nos. 06 CRS 18777-18780
JUAN DOE a/k/a FRANCISCO 06 CRS 18782
VAZQUEZ MARTINEZ

Appeal by defendant from judgments entered 2 May 2007 by Judge
Paul C. Ridgeway in Wake County Superior Court. Heard in the Court
of Appeals 15 May 2008.

Attorney General Roy Cooper, by Assistant Attorney General
Robert K. Smith, for the State.

Anne Bleyman, for defendant-appellant.

TYSON, Judge.

Juan Doe a/k/a Francisco Vazquez Martinez (“defendant”)
appeals judgments entered after a jury found him to be guilty of:
(1) trafficking in cocaine by possession and transportation
pursuant to N.C. Gen. Stat. § 90-95(h)(3); (2) conspiracy to
traffic in cocaine by possession pursuant to N.C. Gen. Stat. § 90-
95(i); (3) possession with the intent to sell or deliver cocaine
pursuant to N.C. Gen. Stat. § 90-95(a); and (4) maintaining a
dwelling for the keeping or selling of controlled substances
pursuant to N.C. Gen. Stat. § 90-108(a)(7). We find no error in
part, reverse in part, and remand for resentencing.

On 2 March 2006, Raleigh Police Detective A.H. Pennica
(“Detective Pennica”) obtained information from confidential
informants that a drug purchase had been arranged with an
individual known as “Goyo.” “Goyo” was later identified as Alfredo
Lara (“Lara”). The drug purchase was scheduled to occur at
approximately 9:00 p.m in the parking lot of the building on 2800
Trawick Road. Lara was to deliver a quarter kilo of cocaine, which
equals approximately nine ounces. The informants told Detective
Pennica that Lara and a second person would deliver the drugs.
Detective Pennica drove to the location and parked directly
across the street to observe the transaction. Detective Pennica
required one informant to stay behind with him to contact the
second informant via telephone. The second informant was
instructed to approach Lara’s vehicle and to signal to the first
informant when he had observed the cocaine. After Detective
Pennica received the signal, drug enforcement officers stationed
next to the parking lot were ordered to “takedown” the vehicle.
Three subjects, Lara, defendant, and the second informant occupied
the vehicle.
Raleigh Police Sergeant Mike Glendy (“Sergeant Glendy”)
removed defendant from the front passenger seat, handcuffed and
searched his person. Sergeant Glendy found three small bags of
cocaine located inside defendant’s front right pocket. Meanwhile,
officers searched the vehicle and recovered a small brown paper bag
containing nine ounces of cocaine “on the floorboard of the back
seat near the center console.” After officers had recovered the drugs and secured the scene,
defendant and Lara were transported to their residence. Upon
arrival, defendant signed a form consenting to a search of his
bedroom. Officers discovered six and a half grams of cocaine
located inside a cowboy boot inside of defendant’s closet.
After a three day trial, a jury found defendant to be guilty
of: (1) trafficking in cocaine by possession; (2) trafficking in
cocaine by transportation; (3) conspiracy to traffic in cocaine by
possession; (4) possession with the intent to sell or deliver
cocaine; and (5) maintaining a dwelling for the keeping or selling
of controlled substances. All five convictions were consolidated
into two separate judgments. Defendant was sentenced to a minimum
term of seventy and a maximum term of eighty-four months
imprisonment for his trafficking and conspiracy convictions. The
trial court also sentenced defendant to a consecutive six to eight
month term of imprisonment for his possession with the intent to
sell or deliver a controlled substance and maintaining a dwelling
for the keeping or selling of controlled substances convictions.
This sentence was suspended and defendant was to be placed on
supervised probation for twenty-four months following the
completion of his consolidated sentence. Defendant appeals.

II. Issues

Defendant argues the trial court erred by: (1) denying his
motion to suppress evidence and testimony related to the search of
his bedroom; (2) denying his motions to dismiss the trafficking
cocaine by possession and transportation convictions; and (3)denying his motions to dismiss the maintaining a dwelling for the
keeping or selling of controlled substances conviction. Defendant
also argues the trial court committed plain error by improperly
instructing the jury on the charge of possession with intent to
sell and deliver cocaine.

Defendant argues he did not knowingly and intelligently waive
his right to be free of unreasonable searches or his right to self-
incrimination and asserts the trial court erred by denying his
motion to suppress evidence and testimony pertaining to the search
of his bedroom. We disagree.

This Court has stated:
The trial court’s findings of fact regarding a
motion to suppress are conclusive and binding
on appeal if supported by competent evidence.
This Court determines if the trial court’s
findings of fact support its conclusions of
law. Our review of a trial court’s
conclusions of law on a motion to suppress is
de novo.

State v. Edwards, ___ N.C. App. ___, ___, 649 S.E.2d 646, 648
(internal citations and quotations omitted), disc. rev. denied, 362
N.C. 89, 656 S.E.2d 281 (2007).

Defendant challenged the validity of his consent to search his
bedroom during the motion to suppress hearing. Defendant argued
both at trial and in his brief that he should have been advised ofhis Miranda rights prior to the officer’s consent request. We
disagree.
Our Supreme Court has repeatedly held that Miranda warnings
are not required to be given by officers before obtaining the
consent of the owner to a search of his premises. State v. Hardy,
339 N.C. 207, 226, 451 S.E.2d 600, 611 (1994); State v. Powell, 297
N.C. 419, 427, 255 S.E.2d 154, 159 (1979); State v. Vestal, 278
N.C. 561, 579, 180 S.E.2d 755, 767 (1971). Even if defendant’s
consent was held to be a statement while he was in custody, “our
Supreme Court has held that physical evidence obtained as a result
of statements by a defendant made prior to receiving the necessary
Miranda warnings need not be excluded.” State v. Houston, 169 N.C.
App. 367, 371-72, 610 S.E.2d 777, 781 (citing State v. May, 334
N.C. 609, 612, 434 S.E.2d 180, 182 (1993)), disc. rev. denied, 359
N.C. 639, 617 S.E.2d 281 (2005). Defendant’s argument is
overruled.

Defendant alternatively argues that the consent form he signed
was “merely perfunctory” and the State failed to meet its burden to
show his consent was given freely without coercion, duress, or
fraud. We disagree.
“The only requirement for a valid consent search is the
voluntary consent given by a party who had reasonably apparent
authority to grant or withhold such consent.” Id. at 371, 610
S.E.2d at 780 (citing N.C. Gen. Stat. §. 15A-221, -222 (2003)).
This Court reviews the totality of the circumstances to determinewhether consent was voluntarily given. Id. at 371, 610 S.E.2d at
781 (citation omitted).
At the conclusion of defendant’s motion to suppress hearing,
the trial court rendered the following findings of fact and
conclusion of law:
Here, the Defendant signed a consent form that
was written in Spanish, his native language.
The consent form was read to him. The
Defendant indicated no lack of understanding.
The Defendant did not object at any time to
the consent that he gave by signing the
consent form. The Defendant was cooperative
in providing the consent and the Defendant
provided information relating to the location
of his room within the trailer on the form
further indicating his consent. So I
therefore conclude that the consent in this
case was voluntarily given.

Competent evidence in the record supports the trial court’s
findings of fact and these findings support the trial court’s
conclusion that defendant voluntarily consented to the search,
conducted in his bedroom. See id. (holding the defendant
voluntarily consented to a search of his bedroom based upon
evidence that defendant: (1) did not contest the fact that he had
voluntarily given verbal consent to the search; (2) did not appear
to be nervous or scared and was “cooperative” with the officers;
(3) led officers to his bedroom; and (4) was present for the search
and did not indicate at any time that he wished to revoke his
consent). The trial court properly denied defendant’s motion to
suppress evidence obtained from the search of defendant’s bedroom.
This assignment of error is overruled.

The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion. In ruling on a motion
to dismiss, the trial court must consider all
of the evidence in the light most favorable to
the State, and the State is entitled to all
reasonable inferences which may be drawn from
the evidence. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.

State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)
(internal citations and quotations omitted).

Defendant argues the trial court erred by denying his motion
to dismiss the charges of trafficking in cocaine by possession and
transportation because the State failed to present sufficient
evidence tending to show defendant had possessed or transported the
cocaine recovered from the vehicle. We disagree.

Trafficking in cocaine by possession pursuant to N.C. Gen.
Stat. § 90-95(h)(3) requires the State to prove that the substance
was knowingly possessed. State v. Baldwin, 161 N.C. App. 382, 391,
588 S.E.2d 497, 504 (2003). “Possession can be actual or
constructive. When the defendant does not have actual possession,
but has the power and intent to control the use or disposition of
the substance, he is said to have constructive possession.” Id. at
391, 588 S.E.2d at 504-05 (internal citations omitted). “However,unless the [defendant] has exclusive possession of the place where
the narcotics are found, the State must show other incriminating
circumstances before constructive possession may be inferred.”
State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)
(citation omitted).
Here, defendant did not have exclusive possession over the
vehicle in which the cocaine was located; therefore other
incriminating circumstances must have been present before defendant
could be found to have constructive possession. Id. At trial,
Lara testified that: (1) defendant obtained the nine ounces of
cocaine recovered from the vehicle from a third-party; (2) the
cocaine was located in defendant’s jacket or under the passenger
seat where he was sitting prior to police intervention; and (3)
defendant presented the cocaine to the confidential informant.
Other testimony tended to show nine ounces of cocaine was recovered
from “the floorboard in the back seat, more toward the passenger
side of the floorboard.” Viewed in the light most favorable to the
State, sufficient evidence was presented for the jury to infer
defendant was in constructive possession of the cocaine recovered
from the vehicle. Wood, 174 N.C. App. at 795, 622 S.E.2d at 123.
The trial court properly submitted the charge of trafficking in
cocaine by possession to the jury. This assignment of error is
overruled.

Transportation is defined as “any real carrying about or
movement from one place to another.” State v. Outlaw, 96 N.C. App.192, 197, 385 S.E.2d 165, 168 (1989) (citation and quotation
omitted), disc. rev. denied, 326 N.C. 266, 389 S.E.2d 118 (1990)).
Lara testified that he and defendant often delivered cocaine
together because “[he] was the one that knew of the informant.”
Lara also testified that he and defendant had driven to their
residence after work on 2 March 2006, arranged the drug purchase
with one of the confidential informants, and later drove to the
parking lot where the purchase was to occur with the cocaine
located inside the vehicle. Viewed in the light most favorable to
the State, sufficient evidence was presented to submit the charge
of trafficking in cocaine by transportation to the jury. Wood, 174
N.C. App. at 795, 622 S.E.2d at 123. This assignment of error is
overruled.

Defendant argues the trial court erred by denying his motion
to dismiss the charge of maintaining a dwelling for the keeping or
selling of controlled substances because the State failed to
present sufficient evidence tending to show defendant kept his
bedroom for the purpose of keeping or selling cocaine. We agree.
N.C. Gen. Stat. § 90-108(a)(7) (2005) prohibits the
maintaining of a dwelling only when it is used for “keeping or
selling” a controlled substances, such as cocaine. State v.
Mitchell, 336 N.C. 22, 32, 442 S.E.2d 24, 29 (1994). “The
determination of whether . . . a [dwelling], is used for keeping or
selling controlled substances will depend on the totality of the
circumstances.” Id. at 34, 442 S.E.2d at 30. “Factors to be considered in determining whether a particular
place is used to ‘keep or sell’ controlled substances include: a
large amount of cash being found in the place; a defendant
admitting to selling controlled substances; and the place
containing numerous amounts of drug paraphernalia.” State v.
Frazier, 142 N.C. App. 361, 366, 542 S.E.2d 682, 686 (2001)
(citations omitted).
Here, none of the aforementioned factors are present.
Officers recovered six and a half grams of cocaine from a boot
located inside defendant’s closet. No other evidence or
paraphernalia tending to indicate the sale of cocaine recovered
from the vehicle came from defendant’s bedroom. Defendant admitted
he was a habitual cocaine user and that he had purchased the
cocaine found in his bedroom at a bar the previous week for
$200.00. Defendant asserted the cocaine recovered from the boot
was solely for his personal use and denied any intent or plans to
sell the cocaine recovered from the boot in the bedroom. The State
presented no evidence to the contrary.
Viewed in the light most favorable to the State, insufficient
evidence was presented tending to show defendant maintained a
dwelling for the keeping or selling of controlled substances.
Wood, 174 N.C. App. at 795, 622 S.E.2d at 123. The trial court
should have granted defendant’s motion to dismiss this charge. We
reverse defendant’s conviction for maintaining a dwelling for the
keeping or selling of controlled substances and remand this case
for resentencing.

Defendant asserts the trial court committed plain error by
improperly instructing the jury on the charge of possession with
intent to sell and deliver cocaine and argues the alleged error
resulted in an ambiguous jury verdict. We disagree.

Plain error review applies only to challenges of jury
instructions and to evidentiary matters. State v. Wiley, 355 N.C.
592, 615, 565 S.E.2d 22, 39-40 (2002), cert. denied, 537 U.S. 1117,
154 L. Ed. 2d 795 (2003). Under plain error review, “the appellate
court must be convinced that absent the error the jury probably
would have reached a different verdict.” State v. Hartman, 90 N.C.
App. 379, 383, 368 S.E.2d 396, 399 (1988) (citing State v. Walker,
316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).

Defendant argues the trial court was required to instruct the
jury that it could not properly find defendant guilty of possession
with the intent to sell or deliver cocaine based upon the same
evidence it used to find defendant guilty of trafficking in cocaine
by possession.
Contrary to defendant’s contentions, this Court has upheld
convictions for both “possession with intent to sell and distribute
cocaine and trafficking in the same cocaine by possession.” State
v. Boyd, 154 N.C. App. 302, 311, 572 S.E.2d 192, 198 (2002) (citing
State v. Pipkins, 337 N.C. 431, 435, 446 S.E.2d 360, 363 (1994).
In Boyd, this Court stated “an examination of the subject, languageand history of the statutes indicates that the legislature intended
that these offenses be punished separately, even where the offenses
are based upon the same conduct.” 154 N.C. App. at 310-11, 572
S.E.2d at 198 (quoting Pipkins, 337 N.C. at 434, 446 S.E.2d at
362)). The cases defendant relies upon relating to the principles
of “jury unanimity” are inapposite to the case at bar. This
assignment of error is overruled.

Miranda warnings are not required prior to obtaining the
owner’s consent to search his premises. Hardy, 339 N.C. at 226,
451 S.E.2d at 611. The trial court’s findings of fact support its
conclusion that defendant voluntarily consented to the search
conducted in his bedroom. The trial court properly denied
defendant’s motion to suppress.
Viewed in the light most favorable to the State, sufficient
evidence was presented to submit to the jury the charges of
trafficking in cocaine by possession and trafficking in cocaine by
transportation. Where none of the factors articulated in Frazier
was presented, there is insufficient evidence tending to show
defendant maintained his bedroom for the keeping or selling of
controlled substances. 142 N.C. at 336, 542 S.E.2d at 686. The
trial court should have granted defendant’s motion to dismiss this
charge. Defendant’s conviction for maintaining a dwelling for the
keeping or selling of controlled substances is reversed and this
case is remanded for resentencing. The trial court was not required to instruct the jury that it
could not properly find defendant guilty of possession with the
intent to sell or deliver cocaine based upon the same evidence it
used to find defendant guilty of trafficking in cocaine by
possession. Boyd, 154 N.C. App. at 311, 572 S.E.2d at 198.
Defendant received a fair trial, free from prejudicial errors he
assigned and argued except for the denial of his motion to dismiss
the maintaining a dwelling charge.
No error in part, reversed in part, and remanded for
resentencing.
Judges MCCULLOUGH and STROUD concur.

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