State v. Winkler

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA14-442
NORTH CAROLINA COURT OF APPEALS
Filed: 18 November 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 13 CRS 051036
JOSHUA WINKLER
Appeal by Defendant from judgment entered 7 November 2013
by Judge Bill Coward in Superior Court, Buncombe County. Heard
in the Court of Appeals 25 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Barry H. Bloch, for the State.
Cooley Law Office, by Craig M. Cooley, for Defendant–
Appellant.
McGEE, Chief Judge.
Joshua Winkler (“Defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of conspiring to
traffic in opium or heroin by transporting in excess of four
grams but less than fourteen grams of a mixture containing
Oxycodone, which is a Schedule II controlled substance under
N.C. Gen. Stat. § 90-90(1)(a)(14). We vacate the trial court’s
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judgment.
The evidence presented at trial tended to show that, in
January 2013, Probation and Parole Officer Melissa Whitson
(“Officer Whitson”) received information that Jamie Harris (“Mr.
Harris”), a probationer under her supervision through the
Buncombe County Drug Treatment Court, was selling Oxycodone in
exchange for rides. Officer Whitson contacted Mr. Harris on
16 January 2013 and requested that he visit her office. After
he arrived at the office, Mr. Harris was administered a drug
test, which yielded a positive result for Oxycodone. Officer
Whitson and two other officers then accompanied Mr. Harris to
83 Dix Creek Chapel Road in Asheville, North Carolina — a
residence in which Mr. Harris had been staying “some” and to
which he would soon be permanently moving — in order to search
the residence.
Upon conducting their search, the officers found drug
paraphernalia, needles, a spoon with a partially melted pill,
tourniquets, and a firearm. As Officer Whitson walked into the
living area to discuss some information with one of the other
officers at the scene, a mail carrier knocked at the door to
deliver a package. The package was addressed to “Jamie Harris,
83 Dix Creek Chapel Road, Asheville, North Carolina 28806,” and
was sent from “J. Winkler, 1219 Everglades Avenue, Clearwater,
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Florida 33764.” Mr. Harris “seemed nervous” when the package
arrived. At the officers’ request, Mr. Harris consented to open
the package in front of them. Inside the package was an
unlabeled pill bottle that contained sixty pills and a tissue
“stuffed down” into the bottle. Mr. Harris was then arrested
and charged with trafficking in opium. The pills seized from
Mr. Harris’s residence were later tested by a forensic scientist
with the North Carolina State Crime Laboratory, who determined
that the pills contained Oxycodone, a Schedule II opium
derivative.
While Mr. Harris was in jail, Officer Tammy Bryson
(“Officer Bryson”) and another officer with the Asheville Police
Department began monitoring Mr. Harris’s telephone
conversations. Officer Bryson was assigned to the Buncombe
County Anti-Crime Taskforce as an undercover drug agent.
Officer Bryson primarily investigated “drug diversion” cases —
cases in which legal drugs, e.g., prescription medications, were
used illegally or were used in a manner in which the medications
were not prescribed. In a call recorded the day after Mr.
Harris’s arrest, the officers “heard the name ‘Josh’ come up”
and heard that he was “in town,” which prompted them to start
investigating whether “Josh” was the “J. Winkler” who had sent
the package of unlabeled pills to Mr. Harris. The officers
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learned that Defendant — Joshua Winkler — had a North Carolina
driver’s license with a Farmville, North Carolina address, as
well as a Florida driver’s license. After conducting
surveillance of Mr. Harris’s residence for several days, Officer
Bryson observed a vehicle parked at Mr. Harris’s residence that
officers determined was registered to Defendant at his
Farmville, North Carolina address. Defendant was seen leaving
Mr. Harris’s residence on 28 January 2013, and an officer
executed a stop of Defendant’s vehicle.
Officer Bryson and another officer arrived at the scene and
asked Defendant to speak with them about the package he had sent
to Mr. Harris. The officers escorted Defendant to their
vehicle, where Defendant joined Officer Bryson in the front
seat. After Officer Bryson advised Defendant of his rights,
Defendant executed a rights’ advisement form and consented to
speak with Officer Bryson and the other officer.
Officer Bryson testified that Defendant admitted the
Oxycodone pills he sent to Mr. Harris through the mail belonged
to Defendant, and that Defendant received and filled his
prescription for the pills in Florida. According to Officer
Bryson, Defendant said he lived in Farmville, North Carolina,
but visited a doctor in Miami, Florida, to get his prescription
for Oxycodone, because Defendant’s local North Carolina
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physician was unwilling to prescribe Defendant Oxycodone due to
his probationary status that was said to have resulted from an
arrest for “doctor shopping.”1 Defendant told Officer Bryson
that Mr. Harris’s son was his grandson, and said that he was
returning to North Carolina from Florida to visit Mr. Harris’s
son and other grandchildren who lived in the area. Defendant
also said he “did not want to travel with his pills on him,” so
he sent his pills through the mail to Mr. Harris’s address,
since Defendant was going to visit Mr. Harris’s residence to see
his grandson.
Officer Bryson testified Defendant told her “he knew that
Mr. Harris did pills and sold pills.” Officer Bryson further
testified that Defendant was unable to give her an answer as to
why he chose to send his Oxycodone pills to Mr. Harris “knowing
that [Mr. Harris] was a drug dealer and . . . used drugs and why
[Defendant] sent them to [Mr. Harris] in a plain pill bottle
with no label and tissue stuffed in it.” Officer Bryson also
testified that Oxycodone pills were regularly the subject of
drug diversion cases, and that perpetrators of drug diversion
offenses often used unlabeled pill bottles to deliver or
1
Officer Bryson described “doctor shopping” as an offense in
which someone obtains or seeks a prescription from a health care
practitioner while being supplied with another prescription by
another practitioner without disclosing the fact of the former
prescription to the practitioner from whom the subsequent
prescription is sought.
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transport the pills and wedged tissues into the bottles in order
to keep the pills from rattling around inside the bottles.
Defendant also told Officer Bryson he thought he would arrive at
Mr. Harris’s residence before the pills did. Officer Bryson
then placed Defendant under arrest.
Defendant was indicted for conspiring with Mr. Harris to
traffic in opium or heroin by transporting in excess of four
grams but less than fourteen grams of a mixture containing
Oxycodone. At trial, Defendant presented no evidence, and moved
to dismiss the charge at the close of the State’s evidence and
at the close of all of the evidence. Defendant’s motions were
denied. Defendant was found guilty by a jury of the charged
offense, and was sentenced to a term of seventy to ninety-
three months imprisonment. Defendant appeals.
Defendant first contends the trial court erred by denying
his motions to dismiss because the State presented insufficient
evidence that he conspired or formed an agreement with Mr.
Harris to traffic in Oxycodone. We agree.
“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 perpetrator
of such offense. If so, the motion is properly denied.” State
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v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
“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).
“[A]ll of the evidence, whether competent or incompetent, must
be considered in the light most favorable to the [S]tate, and
the [S]tate is entitled to every reasonable inference
therefrom.” Id. at 78, 265 S.E.2d at 169.
“A criminal conspiracy is an agreement between two or more
persons to do an unlawful act or to do a lawful act in an
unlawful way or by unlawful means.” State v. Bindyke, 288 N.C.
608, 615, 220 S.E.2d 521, 526 (1975). “As soon as the union of
wills for the unlawful purpose is perfected, the offense of
conspiracy is completed.” Id. at 616, 220 S.E.2d at 526. “To
constitute a conspiracy it is not necessary that the parties
should have come together and agreed in express terms to unite
for a common object.” Id. at 615, 220 S.E.2d at 526. “Direct
proof of the charge is not essential, for such is rarely
obtainable. It may be, and generally is, established by a
number of indefinite acts, each of which, standing alone, might
have little weight, but, taken collectively, they point
unerringly to the existence of a conspiracy.” State v.
Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).
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Nonetheless, “[w]hile a conspiracy may be established from
circumstantial evidence, there must be such evidence to prove
the agreement directly or such a state of facts that an
agreement may be legally inferred.” State v. Massey, 76 N.C.
App. 660, 662, 334 S.E.2d 71, 72 (1985); see State v.
Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703
(“[E]vidence tending to show a mutual, implied understanding
will suffice to withstand [a] defendant’s motion to dismiss.”),
disc. review denied, 319 N.C. 677, 356 S.E.2d 785 (1987).
“Conspiracies cannot be established by a mere suspicion, nor
does a mere relationship between the parties or association show
a conspiracy. If the conspiracy is to be proved by inferences
drawn from the evidence, such evidence must point unerringly to
the existence of a conspiracy.” Massey, 76 N.C. App. at 662,
334 S.E.2d at 72 (citation omitted). Thus, “[t]o hold a
defendant liable for the substantive crime of conspiracy, the
State must prove an agreement to perform every element of the
crime.” State v. Suggs, 117 N.C. App. 654, 661, 453 S.E.2d 211,
215 (1995). Furthermore, “[m]ere passive cognizance of the
crime or acquiescence in the conduct of others will not suffice
to establish a conspiracy. The conspirator must share the
purpose of committing [the] felony.” State v. Merrill, 138 N.C.
App. 215, 221, 530 S.E.2d 608, 612 (2000) (second alteration in
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original) (internal quotation marks omitted).
N.C. Gen. Stat. § 90-95(h)(4)(a) provides, in relevant
part, that any person who “delivers, transports, or possesses
four grams or more of opium or opiate, or any salt, compound,
derivative, or preparation of opium or opiate[,] . . . or any
mixture containing such substance, shall be guilty of a felony
which felony shall be known as ‘trafficking in opium or
heroin,’” N.C. Gen. Stat. § 90-95(h)(4)(a) (2013), and punished
as a Class F felon “if the quantity of such controlled substance
or mixture involved . . . [i]s four grams or more, but less than
14 grams.” Id.
Defendant argues that the evidence was insufficient to
prove that he and Mr. Harris formed an agreement to traffic in
Oxycodone. While we recognize that a conspiracy may be
established by circumstantial evidence and that direct proof of
an agreement is not essential to sustaining a conviction of
conspiring to commit an offense, even when viewed in the light
most favorable to the State, we are not persuaded that the
evidence in the present case “point[s] unerringly to the
existence of a conspiracy.” See Whiteside, 204 N.C. at 712,
169 S.E. at 712. Here, the parties do not dispute that there is
no direct evidence that Defendant conspired with Mr. Harris to
traffic in Oxycodone. Rather, the evidence shows the following:
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that Defendant admitted to Officer Bryson that he mailed sixty
Oxycodone pills to Mr. Harris; that Defendant sent the pills in
an unlabeled pill bottle with a tissue “stuffed down” into the
bottle; that Defendant “knew that Mr. Harris did pills and sold
pills;” that Mr. Harris’s probation officer, Officer Whitson,
received a tip that Mr. Harris was currently trafficking in
Oxycodone; and that, when the mail carrier delivered the package
sent by Defendant to Mr. Harris’s residence at the precise time
officers were conducting a warrantless search of Mr. Harris’s
residence, Mr. Harris “seemed nervous.”
Our appellate courts have long recognized that
“[c]ircumstantial evidence may be of two kinds, consisting
either of a number of consecutive links, each depending upon the
other; or a number of independent circumstances all pointing in
the same direction.” State v. Austin, 129 N.C. 534, 535,
40 S.E. 4, 5 (1901). “In the former case it is said that each
link must be complete in itself, and that the resulting chain
cannot be stronger than its weakest link.” Id. “In the latter
case the individual circumstances are compared to the strands in
a rope, where no one of them may be sufficient in itself, but
all together may be strong enough to prove the guilt of the
defendant beyond a reasonable doubt.” Id. While it appears
that a reasonable inference could be drawn from the evidence in
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the present case that Defendant’s actions were violative of N.C.
Gen. Stat. § 90-95(h)(4)(a), whether viewed as links in a chain
or strands in a rope, we cannot conclude that a jury could
reasonably infer from this same evidence that Defendant and Mr.
Harris formed an agreement or conspired to traffic in Oxycodone.
Although the evidence demonstrates that Defendant and Mr. Harris
had a relationship, “a mere relationship between the parties or
association [does not] show a conspiracy.” See Massey, 76 N.C.
App. at 662, 334 S.E.2d at 72. Again, even “cognizance of the
crime or acquiescence in the conduct” of another “will not
suffice to establish a conspiracy.” Merrill, 138 N.C. App. at
221, 530 S.E.2d at 612. Thus, while there may be sufficient
evidence of Mr. Harris’s knowledge of Defendant’s actions, we
cannot say that there was sufficient evidence that Mr. Harris
“share[d] the purpose of committing [the] felony.” See id.
(second alteration in original) (internal quotation marks
omitted). Without more, we cannot conclude that the State’s
evidence directly or indirectly established a union of wills
between Defendant and Mr. Harris to conspire to traffic in
Oxycodone. Accordingly, we vacate the trial court’s judgment
entered upon the jury’s verdict finding Defendant guilty of
conspiring to traffic in Oxycodone by transportation. Our
disposition on this issue renders it unnecessary to address
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Defendant’s remaining issue on appeal and we decline to do so.
Vacated.
Judges GEER and STROUD concur.
Report per Rule 30(e).