State v. Rodelo , 231 N.C. App. 660 ( 2014 )

NO. COA13-609
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Randolph County
No. 11 CRS 57484
CRECENCIO FELIX RODELO
Appeal by Defendant from judgment entered 7 December 2012 by
Judge V. Bradford Long in Randolph County Superior Court. Heard
in the Court of Appeals 21 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General
John R. Green, Jr., for the State.
Unti & Lumsden, LLP, by Margaret C. Lumsden, for Defendant.
DILLON, Judge.
Crecencio Felix Rodelo (“Defendant”) appeals from a judgment
convicting him of trafficking in cocaine by possession,
challenging (1) the trial court’s denial of his motion to suppress
evidence, (2) the sufficiency of the evidence to support his
constructive possession of the cocaine, and (3) trial counsel’s
failure to request instructions on lesser included offenses or to
object to statements made by the prosecutor during closing
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arguments, contending these failures amounted to ineffective
assistance of counsel. We find no error.
The evidence of record tends to show the following: Based on
information from a confidential informant regarding the delivery
of a shipment of cocaine, agents from the Randolph County Sheriff’s
Office and from the Drug Enforcement Agency (“DEA”) conducted
surveillance on a particular warehouse in Randolph County. At
approximately 11:00 P.M. on 30 November 2011, agents saw a tractor-
trailer, driving without headlights, pull up, release the trailer,
and pull into a garage bay of the warehouse. The agents approached
the front and rear entrances to the warehouse and heard metallic
“clanging” noises inside. One agent knocked on the front door,
shouting “Policia.” The noises stopped, and the back door to the
warehouse opened suddenly. A man, later identified as Nathan
Tobias-Tristan, stepped out. Tobias-Tristan told the agents who
were stationed outside the rear entrance that he worked in the
warehouse, that a friend of his was inside; that there were no
illegal drugs inside; and that he consented to a search. Inside
the warehouse, agents saw no one in the open, so they threatened
to loose a dog, after which Defendant came out of the sleeper area
of the tractor-trailer.
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The agents discovered a hidden compartment in the tractor-
trailer, containing numerous, tightly-wrapped packages, which the
agents believed to contain cocaine. There was a chemical smell of
cocaine in the warehouse and no indication of any kind of
legitimate business. “[S]mall wrappings” were “all over” the
tractor-trailer, as well as in the open area of the Honda SUV
parked next to the tractor-trailer. Defendant took one of the
agents aside, out of the view of Tobias-Tristan, and told the agent
that money was hidden in the tractor-trailer. Two agents went to
the Sheriff’s office to prepare a search warrant.
Upon searching the warehouse, police discovered $955,000.00
in cash in the tightly-wrapped packages in the tractor-trailer, as
Defendant disclosed. They also found cocaine in a Honda Pilot,
located in close proximity to the tractor-trailer. The Honda Pilot
contained a hidden compartment, but the bundles of cocaine were in
plain view. Each bundle weighed approximately one kilogram, the
total net weight being 21.81 kilograms. Defendant was convicted
of trafficking in cocaine by possession and sentenced to 175 to
219 months incarceration. From this judgment, Defendant appeals.
I: Motion to Suppress
In Defendant’s first argument, he contends the trial court
erred by denying his motion to suppress evidence based on
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Defendant’s lack of standing to contest the initial warrantless
search of the warehouse. We disagree.
“The standard of review in evaluating the denial of a motion
to suppress is whether competent evidence supports the trial
court’s findings of fact and whether the findings of fact support
the conclusions of law.” State v. Otto, 366 N.C. 134, 136, 726
S.E.2d 824, 827 (2012) (citation and quotation marks omitted).
“Before defendant can assert the protection afforded by the
Fourth Amendment, however, he must demonstrate that any rights
alleged to have been violated were his rights, not someone else’s.”
State v. Ysut Mlo, 335 N.C. 353, 377, 440 S.E.2d 98, 110, cert.
denied, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994). “Standing [to
assert this protection] requires both an ownership or possessory
interest and a reasonable expectation of privacy.” State v. Swift,
105 N.C. App. 550, 556, 414 S.E.2d 65, 68-69 (1992). However,
“[t]he burden of showing this ownership or possessory interest is
on the person who claims that his rights have been infringed.”
Id. When a defendant neither asserts “a property nor a possessory
interest [in the premise searched],” nor makes a showing of any
other “circumstances giving rise to a reasonable expectation of
privacy in the premises searched[,] . . . defendant has failed to
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establish his standing to object.” State v. Jones, 299 N.C. 298,
306, 261 S.E.2d 860, 865 (1980).
In this case, the trial court found, inter alia, that Tristan-
Tobias informed one of the officers that he just worked at the
warehouse; that there was someone else inside who was his friend;
and that he consented to a search of the warehouse. The trial
court further found that no evidence was presented that connected
Defendant with the warehouse except his presence. Based on its
findings, the trial court concluded:
The defendant has failed to show that he has
any standing to challenge Nathan Tristan-
Tobias’ consent to search the warehouse in
question as the defendant has failed to show
any reasonable expectation of privacy in the
contents of the warehouse. Moreover, the
Court concludes as a matter of law that Nathan
Tristan-Tobias was reasonably, apparently
entitled to give consent to search the
premises at Warehouse Number 8 under the facts
set out above. The Motion to Suppress is
denied.
We believe the record supports the trial court’s findings
that Defendant presented no evidence of his “ownership or
possessory interest” or of a “reasonable expectation of privacy.”
Swift, 105 N.C. App. at 556, 414 S.E.2d at 68-69. Accordingly, we
believe the trial court did not err by concluding that Defendant
failed to meet his burden of establishing standing. Moreover,
assuming arguendo Defendant had standing to contest the search, we
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do not believe the trial court erred by concluding that it was
reasonable for the agents to assume that Tristan-Tobias had the
authority to give consent for a search of the warehouse, and the
police later secured a search warrant based on probable cause.1
State v. Toney, 187 N.C. App. 465, 469, 653 S.E.2d 187, 190 (2007)
(stating, “[i]n the absence of actual authority, a search may still
be proper if an officer obtains consent from a third party whom he
reasonably believes has authority to consent”) (citing Illinois v.
Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148 (1990)).
II: Motion to Dismiss
In Defendant’s second argument on appeal, he contends the
trial court erred by denying his motion to dismiss for lack of
substantial evidence of Defendant’s constructive possession of the
contraband. We disagree.
“This Court reviews 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). “‘Upon defendant’s motion for dismissal, the
question for the Court is whether there is substantial evidence
(1) of each essential element of the offense charged, or of a
lesser offense included therein, and (2) of defendant’s being the
1 The trial court made a number of findings to establish that the
agents acted on a reasonable belief that Tristan-Tobias had
apparent authority to consent to the search.
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perpetrator of such offense. If so, the motion is properly
denied.’” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000)
(quotation omitted). “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, 78-79, 265 S.E.2d
164, 169 (1980). “In making its determination, the trial court
must consider all evidence admitted, whether competent or
incompetent, in the light most favorable to the State, giving the
State the benefit of every reasonable inference and resolving any
contradictions in its favor.” State v. Rose, 339 N.C. 172, 192,
451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.
Ed. 2d 818 (1995).
Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when
the evidence does not rule out every
hypothesis of innocence. If the evidence
presented is circumstantial, the court must
consider whether a reasonable inference of
defendant’s guilt may be drawn from the
circumstances. Once the court decides that a
reasonable inference of defendant’s guilt may
be drawn from the circumstances, then it is
for the jury to decide whether the facts,
taken singly or in combination, satisfy [it]
beyond a reasonable doubt that the defendant
is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and quotation
marks omitted).
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Trafficking in cocaine by possession has two elements: (1)
knowing possession of cocaine, and (2) the cocaine weighing 28
grams or more. State v. White, 104 N.C. App. 165, 168, 408 S.E.2d
871, 873 (1991); see also N.C. Gen. Stat. § 90-95(h)(3)(a). “It
is well established in North Carolina that possession of a
controlled substance may be either actual or constructive.” State
v. Jenkins, 167 N.C. App. 696, 700, 606 S.E.2d 430, 433 (2005)
(citation and quotation marks omitted). Constructive possession
is not required to be exclusive: “Proof of nonexclusive,
constructive possession is sufficient.” State v. McNeil, 359 N.C.
800, 809, 617 S.E.2d 271, 277 (2005) (citation and quotation marks
omitted). “A person is said to have constructive possession when
he, without actual physical possession of a controlled substance,
has both the intent and the capability to maintain dominion and
control over it.” Jenkins, 167 N.C. App. at 700, 606 S.E.2d at
433 (2005) (citation and quotation marks omitted).
As the terms “intent” and “capability”
suggest, constructive possession depends on
the totality of circumstances in each case. No
single factor controls, but ordinarily the
question will be for the jury. . . . The fact
that a person is present in a [vehicle] where
drugs are located, nothing else appearing,
does not mean that person has constructive
possession of the drugs. . . . There must be
evidence of other incriminating circumstances
to support constructive possession.
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State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986)
(citations omitted). “Where [contraband is] found on the premises
under the control of an accused, this fact, in and of itself, gives
rise to an inference of knowledge and possession which may be
sufficient to carry the case to the jury on a charge of unlawful
possession.” State v. Butler, 356 N.C. 141, 567 S.E.2d 137, 140
(2002). “However, unless the person 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). Evidence of constructive possession is sufficient to
support a conviction if it would allow a reasonable mind to
conclude that defendant had the intent and capability to exercise
control and dominion over the controlled substance. State v. Peek,
89 N.C. App. 123, 365 S.E.2d 320 (1988).
In this case, Defendant was neither in actual, physical
possession of the controlled substance, nor did he have exclusive
control of the warehouse. Therefore, to support a charge of
trafficking by possession, the State was required to submit
substantial evidence that Defendant constructively possessed the
cocaine in this case. Defendant contends on appeal that the State
did not submit substantial evidence of his constructive possession
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of the cocaine. In support of his position, Defendant cites State
v. Weems, 31 N.C. App. 569, 230 S.E.2d 193 (1976), for the
proposition that the mere presence of a defendant near the location
of the contraband is not sufficient to prove control and intent.
In Weems, we stated that “mere proximity to persons or locations
with drugs about them is usually insufficient, in the absence of
other incriminating circumstances, to convict for possession[,]”
and further that “the mere presence of the defendant in an
automobile in which illicit drugs are found does not, without more,
constitute sufficient proof of his possession of such drugs.” Id.
at 571, 230 S.E.2d at 194 (citations and quotation marks omitted).
In Weems, the police “placed a certain automobile under
surveillance[,]” “saw three men get into the automobile and drive
away[,]” and “followed and shortly thereafter stopped the car.”
Id. The defendant was a passenger in the right front seat, and
the driver was the registered owner of the automobile. Id. The
third man was in a passenger in the back seat. “Packets of heroin
were found hidden in three different locations in the car, two of
which were in the front seat area and one in the back seat area.”
Id. The defendant was in close proximity to the heroin hidden in
the front seat area, but “[t]here was no evidence [the] defendant
owned or controlled the car[,] [and] [t]here was no evidence he
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had been in the car at any time other than during the short period
which elapsed between the time the officers saw the three men get
in the car and the time they stopped and searched it.” Moreover,
there “was no evidence of any circumstances indicating that
defendant knew of the presence of the drugs hidden in the car.”
Id. at 571, 230 S.E.2d at 194-95. The Weems Court held, on these
facts, that because there was “no evidence of any circumstance
connecting the defendant to the drugs in any manner whatsoever
other than the showing of his mere presence for a brief period in
the car as a passenger[,]” there was not substantial evidence of
the defendant’s constructive possession of the heroin. Id. at
571, 230 S.E.2d at 195.
We believe Weems is distinguishable from the case sub judice,
because, here, the State’s case rests on more than Defendant’s
mere proximity to the controlled substance. Defendant hid from
the agents when they first entered the warehouse. He was
discovered alone in the tractor-trailer where the money was hidden.
No one else was discovered in the warehouse. The cocaine was
discovered in a Honda Pilot parked, with its doors open, in close
proximity to the tractor-trailer containing the cash. The cash
and the cocaine in this case were packaged in a similar fashion.
“[S]mall wrappings” were “all over” the tractor-trailer, in which
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Defendant was hiding, as well as in the open area of the Honda SUV
parked close to the tractor-trailer. Defendant admitted knowing
where the money was hidden. The entire warehouse had a chemical
smell of cocaine. In addition, when the police were questioning
Tristan-Tobias and Defendant together, Defendant motioned to one
of the agents “that he wanted to talk to [the agent]” out of the
view of Tristan-Tobias, from which a jury could infer that
Defendant knew and planned to reveal something, which Tristan-
Tobias did not know, or that Defendant was guilty of a crime and
was seeking leniency.
We believe the evidence in this case, when viewed in the light
most favorable to the State, supports the trial court’s conclusion
that Defendant was in constructive possession of the cocaine. In
other words, there were sufficient incriminating circumstances –
beyond Defendant’s mere presence – to support the trial court’s
conclusion. Accordingly, Defendant’s argument is overruled.
III: Ineffective Assistance of Counsel
In Defendant’s third argument, he contends he received
ineffective assistance of counsel when his attorney failed to ask
for an instruction on the lesser included offense of and failed to
object to the State’s allegedly egregious statements in closing
arguments.
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“To prevail on a claim of ineffective assistance of counsel,
a defendant must first show that his counsel’s performance was
deficient and then that counsel’s deficient performance prejudiced
his defense. Deficient performance may be established by showing
that counsel’s representation fell below an objective standard of
reasonableness.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d
271, 286, cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006)
(citations and quotation marks omitted). “Generally, to establish
prejudice, a defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id.Defendant contends he was provided ineffective assistance of
counsel in this case for two reasons: (1) trial counsel failed to
request that the jury be instructed on conspiracy to traffic in
cocaine and the lesser included offense of possession of cocaine;
and (2) trial counsel failed to object to allegedly egregious,
improper comments by the State during its closing argument. We
address each argument in turn.
A: Instruction on Lesser Included Offenses
First, Defendant contends his trial counsel rendered
ineffective assistance by failing to request a jury instruction on
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conspiracy to traffic in cocaine and the lesser included offense
of possession of cocaine. We disagree.
We note that in his brief, Defendant refers to the crime of
conspiracy to traffic in cocaine as a lesser included offense of
trafficking in cocaine. However, conspiracy to traffic in cocaine
is not a lesser included offense of trafficking in cocaine, because
the requirement of an agreement, while necessary to sustain a
conviction for conspiracy, is not a necessary element of
trafficking in cocaine by possession. State v. Kemmerlin, 356
N.C. 446, 476, 573 S.E.2d 870, 891 (2002) (stating that “conspiracy
is a separate offense from the completed crime that normally does
not merge into the substantive offense”). In this case, since the
indictment does not contain an allegation of an agreement, it would
have been error for the trial court to instruct the jury on
conspiracy. Accordingly, we address Defendant’s argument as it
relates to the lesser included offense of possession of cocaine.
Here, since Defendant failed to object to the omission of a
lesser-included offense jury instruction at trial or to request
such an instruction, we must review the instructions under the
plain error standard. State v. Lowe, 150 N.C. App. 682, 685, 564
S.E.2d 313, 315 (2002). Plain error is “a fundamental error,
something so basic, so prejudicial, so lacking in its elements
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that justice cannot have been done[.]” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks and
citation omitted) (emphasis in original). Under plain error
analysis, a defendant is entitled to reversal “only if the error
was so fundamental that, absent the error, the jury probably would
have reached a different result.” State v. Jones, 355 N.C. 117,
125, 558 S.E.2d 97, 103 (2002).
“[A] lesser included offense instruction is required if the
evidence would permit a jury rationally to find [defendant] guilty
of the lesser offense and acquit him of the greater.” State v.
Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations
and quotation marks omitted). “Where the State’s evidence is clear
and positive as to each element of the offense charged and there
is no evidence showing the commission of a lesser included offense,
it is not error for the judge to refuse to instruct on the lesser
offense.” State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190,
193 (1985).
The key difference between the crime of trafficking in cocaine
by possession and the lesser-included offense of felony possession
of cocaine is weight; that is, trafficking by possession requires
evidence of 28 grams or more of cocaine. State v. White, 104 N.C.
App. 165, 168, 408 S.E.2d 871, 873 (1991). Here, we do not believe
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the trial court committed plain error in failing to instruct the
jury on conspiracy to traffic in cocaine and the lesser included
offense of simple possession of cocaine. The evidence shows that
Defendant was discovered in close proximity to 21.81 kilograms of
cocaine, which is substantially more than the 28 grams required to
constitute trafficking. Defendant offered no evidence that he was
in possession of only less than 28 grams of cocaine. See State v.
King, 99 N.C. App. 283, 290, 393 S.E.2d 152, 156 (1990).
Accordingly, we conclude the trial court did not err, much less
commit plain error, in failing to give these instructions.
B: Failure to Object to Remarks
Defendant lastly argues he was provided ineffective
assistance of counsel because trial counsel failed to object to
allegedly egregious, improper comments by the State during its
closing argument. We disagree.
“The standard of review for assessing alleged improper
closing arguments that fail to provoke timely objection from
opposing counsel is whether the remarks were so grossly improper
that the trial court committed reversible error by failing to
intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558
S.E.2d 97, 107 (2002). Our Supreme Court has stated:
We have frequently held that counsel must be
allowed wide latitude in jury arguments in
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hotly contested cases. Counsel may argue the
facts in evidence and all reasonable
inferences that may be drawn therefrom
together with the relevant law in presenting
the case.
State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468, cert.
denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988).
In this case, Defendant argues that his trial counsel’s
failure to object to three statements made by the prosecutor during
closing arguments constituted ineffective assistance of counsel:
(1) the prosecutor’s statement that Defendant was “exchanging
money and drugs, from one vehicle to another,” a proposition which
was not established at trial and which would have been consistent
with a charge of trafficking by transportation; (2) the
prosecutor’s statement that Defendant was “trafficking in cocaine
and narcotics,” when there was no evidence that Defendant also
trafficked in narcotics; and (3) the prosecutor’s characterization
of the business as a place where drugs and money were exchanged,
arguing in his brief that “[t]he idea that the business was
involved only in trafficking in cocaine and narcotics has no basis
in the evidence and is not supported by an inference from the
evidence.”
We believe these statements by the prosecutor, to which trial
counsel failed to object, and which Defendant has made the basis
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of his ineffective assistance of counsel claim, were either
reasonable inferences drawn from the evidence, or were not so
grossly improper that the trial court committed reversible error
by failing to intervene ex mero motu. The prosecutor’s statement
that Defendant was exchanging drugs and money from one vehicle to
another may be reasonable inferred from $955,000.00 in cash in one
vehicle and 21.81 kilograms of cocaine in a different vehicle
parked, with its doors open, in close proximity. The
characterization and description of the warehouse as a being a
place for exchange of drugs and money could be reasonably inferred
by the rural location of the warehouse close to major highways,
the lack of a business sign or descriptor or evidence of any other
business being conducted therein, and the fact that a tractor-
trailer containing $955,000.00 in cash pulled into the warehouse
to join a car containing 21.81 kilograms of cocaine. Finally,
referring to “narcotics,” we do not believe, standing alone, was
so grossly improper that the trial court committed reversible error
by failing to intervene ex mero motu. As such, Defendant’s
argument that trial counsel provided ineffective assistance of
counsel by failing to object to these three statements during the
prosecutor’s closing argument must necessarily fail.
We conclude Defendant had a fair trial, free from error.
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NO ERROR.
Chief Judge MARTIN and Judge STEELMAN concur.