State v. Velazquez-Perez , 233 N.C. App. 585 ( 2014 )

NO. COA13-694
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 11 CRS 6952-55
11 CRS 60583-86
ERADIO VELAZQUEZ-PEREZ
and
EDGAR AMPELIO-VILLALVAZO
Appeal by Defendants from order entered 16 October 2012 and
judgments entered 13 November 2012 by Judge Marvin P. Pope in
Superior Court, Buncombe County. Heard in the Court of Appeals
7 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Phillip K. Woods and Assistant Attorney General
Stuart M. (Jeb) Saunders, for the State.
Anne Bleyman for Defendant-Appellant Eradio Velazquez-
Perez.
Goodman Carr, PLLC, by W. Rob Heroy, for Defendant-
Appellant Edgar Ampelio-Villalvazo.
McGEE, Judge.
Henderson County Sheriff’s Deputy David McMurray (“Deputy
McMurray”) was working with a special unit that involved both
Henderson and Buncombe Counties along Interstate 40 on 4
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September 2011. That day he was working in Buncombe County.
Defendant Edgar Ampelio-Villalvazo (“Villalvazo”) was driving a
tractor-trailer (“the truck”) on 4 September 2011 that was owned
by Defendant Eradio Velazquez-Perez (“Perez”) (together,
“Defendants”). Perez was also in the truck at the time. Deputy
McMurray was sitting in an unmarked SUV (“the SUV”) parked at a
commercial vehicle weigh station, facing the exit ramp, when he
observed the truck exiting Interstate 40 headed into the weigh
station. Deputy McMurray, who had been trained in visual
estimation of speed, testified that he estimated the truck to be
travelling at approximately fifty miles per hour where the
posted recommended speed was thirty miles per hour.
After the truck had exited the scales, Deputy McMurray
stopped the truck at the weigh station. Deputy McMurray
positioned his SUV facing the truck and activated the SUV’s
dashboard camera. The camera simultaneously recorded video of
the truck and the interior of Deputy McMurray’s SUV. The camera
also recorded audio inside the SUV, and had the capability to
record audio from a receiver that Deputy McMurray could wear on
his person, but Deputy McMurray either forgot to wear the
receiver or failed to activate it. Deputy McMurray approached
the cab of the truck, spoke with Defendants, and returned to his
SUV with some documentation. Villalvazo then exited the truck
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and walked back to the SUV with additional documentation.
Villalvazo sat in the passenger seat of the SUV for
approximately forty-nine minutes, while Deputy McMurray wrote a
warning citation and conducted certain records checks related to
the stop, including checking the driver’s licenses of Villalvazo
and Perez, the truck registration, insurance information, log
books, and other documentation related to the load then being
transported on the truck.
During the stop, Deputy McMurray asked Villalvazo a number
of questions, and on several occasions left the SUV, returning
to the truck to ask Perez additional questions. Deputy McMurray
completed the warning citation and handed it to Villalvazo
approximately twelve minutes into the stop and informed
Villalvazo that the documentation check was ongoing, and so
Villalvazo remained in the SUV.
During this process, Deputy McMurray became suspicious that
criminal activity, such as drug trafficking, might be occurring.
Deputy McMurray’s suspicions were based on a number of
observations, including concerns he had about the log books,
what he perceived as nervous behavior on the part of Villalvazo,
and certain discrepancies between answers given by Villalvazo
and Perez. Both Villalvazo and Perez told Deputy McMurray that
Villalvazo had not been working for Perez for very long.
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Villalvazo told Deputy McMurray that he had not known Perez
before he began working for him, and that this was Villalvazo’s
first out-of-state trip since he began working for Perez. The
log books were consistent with this statement.
Once Deputy McMurray completed checking the documents, he
returned the documents to Villalvazo and Perez, and asked them
both if they would consent to a search of the truck. Both
agreed and signed voluntary consent forms authorizing a search
of the truck. Deputy McMurray used a hammer to tap on various
areas of the interior of the cab, and located several places
that he believed might contain hidden compartments. Deputy
McMurray used a knife to cut through or remove upholstery, and
to remove sheet metal beneath the upholstery. In so doing,
Deputy McMurray uncovered several hidden compartments, two of
which contained a combined twenty-four kilograms of cocaine.
Only one fingerprint was recovered from inside the hidden
compartments, and it matched neither Villalvazo nor Perez. A
duffel bag containing Perez’s clothes and personal items was
also located inside the cab of the truck and $5,000.00 in cash
was recovered from inside the lining of that duffel bag.
Several mobile phones belonging to Perez were also recovered.
Villalvazo had one mobile phone with him, and only a small
amount of cash.
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Villalvazo and Perez were arrested and tried together.
Each was found guilty of two counts of trafficking cocaine in
excess of 400 grams (based upon possession and transportation),
one count of possession with intent to sell or deliver cocaine,
and one count of conspiracy to traffic in cocaine by
transporting and possessing cocaine in excess of 400 grams.
Both Defendants appealed, and we address both of their appeals
in this opinion.
I.
In Villalvazo’s first argument, he contends the trial court
erred in denying his motions to dismiss the two counts of
trafficking cocaine (based upon possession and transportation),
and the one count of possession with intent to sell or deliver
cocaine, because the State failed to produce substantial
evidence of each essential element of those charges. We agree.
A motion to dismiss is properly denied if
“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 such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
“When ruling on a motion to dismiss, all of
the evidence should be considered in the
light most favorable to the State, and the
State is entitled to all reasonable
inferences which may be drawn from the
evidence.” If substantial evidence exists,
whether direct, circumstantial, or both,
supporting a finding that the offense
charged was committed by the defendant, the
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case must be left for the jury.
State v. Tisdale, 153 N.C. App. 294, 296-97, 569 S.E.2d 680, 682
(2002) (citations omitted). “Trafficking in cocaine by
possession and trafficking in cocaine by transportation, in
violation of N.C. Gen. Stat. § 90–95(h)(3) (2001), require the
State to prove that the substance was knowingly possessed and
transported.” State v. Baldwin, 161 N.C. App. 382, 391, 588
S.E.2d 497, 504 (2003) (citation omitted).
“[I]n a prosecution for possession of
contraband materials, the prosecution is not
required to prove actual physical possession
of the materials.” Proof of nonexclusive,
constructive possession is sufficient.
Constructive possession exists when the
defendant, “while not having actual
possession, . . . has the intent and
capability to maintain control and dominion
over” the narcotics. “Where such materials
are 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.” “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.”
Tisdale, 153 N.C. App. at 297, 569 S.E.2d at 682 (citations
omitted). Knowledge of the existence of the contraband was
necessary to prove the trafficking and possession charges.
State v. Wiggins, 185 N.C. App. 376, 386, 648 S.E.2d 865, 872
(2007).
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The State argues that the facts in this case regarding
Villalvazo’s knowledge of the cocaine are analogous to those in
Tisdale and State v. Munoz, 141 N.C. App. 675, 541 S.E.2d 218(2001). We disagree. In Tisdale, this Court found sufficient
additional incriminating circumstances where the defendant was
driving alone in an automobile that had been rented by another
person, Harold Leak (“Leak”). Tisdale, 153 N.C. App. at 295,
569 S.E.2d at 681.
Just before defendant was pulled over, he
had accelerated from 0 to 60 miles per hour
in a 35 mile per hour speed zone with a
police officer directly behind him. The
officer noticed the cocaine in plain view in
the car door handle on the driver's side of
the vehicle, well within reach of defendant.
While talking with the officer, defendant
was “sweating profusely” and was nervous.
In the officer's opinion, defendant “was
under the influence of something[,]”
although the officer did not consider
defendant to be so impaired that he could
not drive. A subsequent search of the
vehicle uncovered more cocaine located under
the driver's seat. This second baggie of
cocaine was also well within defendant's
reach. Although Cosby [a carwash employee],
[and] an admitted cocaine addict, testified
he placed or dropped cocaine in the car
while cleaning it, Leak testified he did not
notice any cocaine in the vehicle following
the cleaning. Taken in the light most
favorable to the State, this evidence
supports a reasonable inference that
defendant was aware of the presence of
cocaine in the vehicle and had the power and
intent to control its disposition.
Tisdale, 153 N.C. App. at 298-99, 569 S.E.2d at 683.
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In Munoz, regarding the defendant’s knowledge of cocaine
recovered from a vehicle the defendant had been driving, this
Court held that “it could be inferred [from the attendant
circumstances] that defendant had knowledge of the presence of
[] cocaine.” Munoz, 141 N.C. App. at 686, 541 S.E.2d at 224.
An inference that defendant had knowledge of
the presence of the cocaine can be drawn
from defendant's power to control the
Sentra. The Sentra had been under
defendant's exclusive control since it was
loaded onto the car carrier in Houston,
Texas six days prior to defendant's arrest,
and Trooper Gray testified that he had to
obtain keys from defendant to unlock the
cars to be able to search them. In
addition, the State presented other evidence
from which an inference of defendant's
knowledge could be drawn. First, defendant
presented the troopers with bills of lading
for the Aerostar and the other vehicles
which he had transported, but had no such
document for the Sentra. Each bill of
lading contained an inspection checklist.
Defendant explained that he had no such
inspection checklist for the Sentra because
it was raining when he picked up the car in
Houston, Texas; however, a certified copy of
a report by the National Climatic Data
Center was introduced into evidence showing
that there was no precipitation in the
Houston area on that date. Trooper Gray's
testimony regarding the lack of rear tags,
the absence of a trunk lock, the grease-like
odor and the displacement of the rear seat
indicates that defendant could have found
the cocaine had he inspected the Sentra in a
manner consistent with the inspection he
conducted on the Aerostar. Second, the FAX
indicated that the Sentra was to be shipped
to Junior City, New Jersey and provided a
contact number with an area code of 917.
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Agents from the State Bureau of
Investigation testified that Junior City,
New Jersey does not exist and that 917 is a
New York City area code. Finally, defendant
told the agents that he did not know Mr.
Angel and that Mr. Angel would not be able
to contact defendant directly; however, a
call was received on defendant's pager from
the number identified as Mr. Angel's on the
FAX. Taking the facts in the light most
favorable to the State and leaving
discrepancies and inconsistencies in the
testimony for the jury to resolve, we
conclude there was sufficient evidence from
which it could be inferred that defendant
had knowledge of the presence of the
cocaine.
Id. at 685-86, 541 S.E.2d at 224.
We note that not only was Villalvazo’s control over the
truck not exclusive, the owner of the truck was Perez, the co-
driver. The cocaine was secreted in hidden compartments that
were not accessible to Villalvazo. Because the truck belonged
to Perez, Perez was the one with the authority to cut open the
truck, hide the cocaine, and seal the compartments with sheet
metal and upholstery. The State argues there were other
incriminating circumstances sufficient to submit to the jury the
charges of trafficking and possession against Villalvazo.
Specifically, the State cites Deputy McMurray’s “review of the
logbooks and other documentation [that] caused him to question
the economic feasibility of the trip, which supported his
overall suspicion of illegal narcotics activity.” If, in fact,
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Perez’s trucking company was operating in an economically
unsound manner, that would be evidence the jury could consider
in its deliberations concerning Perez. Evidence suggested
Villalvazo had not been working very long for Perez, there was
no evidence that Villalvazo had any stake or control in Perez’s
trucking company, or any authority to countermand Perez’s
authority. Deputy McMurray’s suspicions concerning the logbooks
and other documentation are not particularly relevant to
Villalvazo in this matter.
The State contends that “as the driver of the vehicle,
[Villalvazo] had the power to control the contents of the
vehicle.” No evidence was presented that Villalvazo had the
power to control the cocaine hidden inside secret compartments
that Deputy McMurray had to cut through upholstery and sheet
metal to discover. The State also argues: “[Villalvazo] did not
testify, and indeed presented no evidence as to his lack of
access.” It is improper for the State to base arguments at
trial on a defendant’s decision not to testify, and it is at
least inappropriate to do so on appeal. The State contends
Villalvazo “was in essence the borrower of the vehicle” which,
based upon State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124(1974), allowed
an inference of knowledge and possession
which may be sufficient to carry the case to
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the jury. The inference is rebuttable, and
if the owner of a vehicle loans it to an
accused without telling him what is
contained within the vehicle, the accused
may offer evidence to that effect and
thereby rebut the inference.
Id. at 64, 210 S.E.2d at 127. We disagree with the State that a
hired employee of a trucking company, who has been instructed to
drive by his employer, is “in essence the borrower of the
vehicle[.]” We find this analogy especially tenuous when the
employer and owner of the vehicle was in the vehicle and would
have been driving the vehicle had it been stopped at another
time during the trip.
The State also refers to Deputy McMurray’s “many
suspicions” concerning Villalvazo. These suspicions included
Villalvazo clearing his throat and “kind of coughing” several
times during the approximately fifty minutes Villalvazo was
sitting in Deputy McMurray’s SUV, Deputy McMurray’s testimony
that Villalvazo sometimes avoided eye contact, and that
Villalvazo’s “heart” was beating in his neck. In its order
denying Defendants’ motions to suppress, the trial court found
as fact: “The Court observed the demeanor of [Villalvazo] in the
video to be somewhat apprehensive and nervous during the
investigation by Officer McMurray[.]” We agree with the trial
court that Villalvazo’s demeanor could be characterized as
“somewhat apprehensive and nervous during the investigation[.]”
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The State contends that Villalvazo “presented no evidence
as to his lack of access [to the hidden compartments].”
However, on cross-examination of the State’s witnesses, the
defense attorneys elicited testimony that none of Villalvazo’s
fingerprints were recovered from inside the compartments or from
the packaged cocaine, that cutting and removing upholstery and
sheet metal to uncover the compartments was labor intensive, and
that the compartments would not have been visible “to the
average-civilian naked eye.” When Deputy McMurray was asked how
Villalvazo reacted to hearing there had been cocaine recovered
from the truck, Deputy McMurray testified that Villalvazo was
“surprised,” and that Villalvazo responded: “Cocaine? Cocaine
in the truck?”
The State’s evidence in support of the required element
that Villalvazo had knowledge of the cocaine hidden within the
structure of the truck was that Villalvazo was in the truck, was
driving the truck at the time of the stop, and that Deputy
McMurray believed Villalvazo showed some signs of nervousness
during the stop. The State presented no evidence that Perez
actually communicated with Villalvazo in any manner concerning
hidden compartments or any cocaine within the hidden
compartments. The evidence presented ‒ that Villalvazo knew
Perez only because Perez had hired Villalvazo as a driver and
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they had only known each other only for a short period of time ‒
does not establish a relationship between the two as indicative
of the trust one would expect when admitting to a serious
felony. We can think of no good reason why Perez would want, or
need, to share that information with one in Villalvazo’s
position. The level of nervousness demonstrated by Villalvazo
in this instance is also of limited value to the State’s case.
As our Supreme Court has stated: “[M]any people do become
nervous when stopped by [a law enforcement officer].” State v.
McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999). Some
degree of nervousness is common when a person is stopped and
detained by law enforcement, even for minor traffic violations.
We hold that the evidence presented to support the required
element that Villalvazo knew there was cocaine secreted within
the body of the truck was not substantial, in that it did not
constitute “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Tisdale, 153 N.C.
App. at 296, 569 S.E.2d at 682 (citation omitted). We make this
holding even considering “all of the evidence . . . in the light
most favorable to the State[.]” Id. at 296-97, 569 S.E.2d at
682 (citation omitted). We vacate Villalvazo’s convictions for
trafficking in cocaine by transportation, trafficking in cocaine
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by possession, and possession of cocaine with intent to sell or
deliver.
II.
Both Villalvazo and Perez argue the State failed to present
substantial evidence in support of the charges of “conspir[acy]
to traffic in cocaine . . . by transporting and possessing
[cocaine] in excess of 400 grams[.]” We agree.
A criminal conspiracy is an agreement
between two or more people to do an unlawful
act or to do a lawful act in an unlawful
manner. In order to prove conspiracy, the
State need not prove an express agreement;
evidence tending to show a mutual, implied
understanding will suffice. Nor is it
necessary that the unlawful act be
completed. “As soon as the union of wills
for the unlawful purpose is perfected, the
offense of conspiracy is completed.”
State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991)
(citations omitted).
While conspiracy can be proved by inferences
and circumstantial evidence, it “cannot be
established by a mere suspicion, nor does a
mere relationship between the parties or
association show a conspiracy.” Instead
“[i]f the conspiracy is to be proved by
inferences drawn from the evidence, such
evidence must point unerringly to the
existence of a conspiracy.”
State v. Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360
(2004) (citations omitted). Though not dispositive, the fact we
held above that there was not substantial evidence indicating
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Villalvazo knew there was cocaine secreted in the truck factors
into our analysis. The State submitted no evidence directly
implicating Villalvazo and Perez in a conspiracy. The only
evidence presented was that Villalvazo worked for Perez, and
that they were both involved in driving the truck while it
contained the cocaine. In the present case, “[t]he evidence
. . . does not point unerringly toward conspiracies [to traffic
in cocaine by transporting and possessing cocaine in excess of
400 grams] and is insufficient to support convictions on those
charges.” Id. We hold there was not substantial evidence of a
conspiracy presented at trial, and we vacate Villalvazo’s and
Perez’s convictions for conspiracy to traffic in cocaine by
transporting and possessing.
III.
Because our holdings above result in vacating all four
convictions against Villalvazo, we do not address Villalvazo’s
remaining arguments.
IV.
In Perez’s second argument, he contends the trial court
erred in denying his motion to suppress the cocaine seized based
upon his argument that the stop was unconstitutionally extended.
We disagree.
Perez contends:
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Once Deputy McMurray issued the warning
citation to . . . Villalvazo for speeding,
the justification for the initial stop was
completed. Deputy McMurray then told
. . . Villalvazo he was going to run more
checks. Deputy McMurray had not obtained
any evidence up to that point that would
justify prolonging the detention beyond the
time it took to investigate the initial
traffic stop.
Perez’s argument is limited to contending that, once Deputy
McMurray handed Villalvazo the warning citation, the purpose of
the stop was over, and anything that occurred after that time
constituted an unconstitutional prolongation of the stop.
However, Perez provides no citation to authorities upon which he
relies in support of the proposition that the purpose of the
stop was necessarily completed once the citation for the
infraction justifying the stop had been given to the person who
committed the infraction. Failure to cite to supporting
authority is a violation of Rule 28(b)(6) of the North Carolina
Rules of Appellate Procedure, and constitutes abandonment of
this argument. N.C.R. App. P. 28(b)(6).
In addition, we find no such authority. Law enforcement
officers routinely check relevant documentation while conducting
traffic stops. This Court has recognized that
an initial traffic stop concludes and the
encounter becomes consensual only after an
officer returns the detainee's driver's
license and registration. See State v.
Kincaid, 147 N.C. App. 94, 100, 555 S.E.2d
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294, 299 (2001) (holding that because a
reasonable person would have felt free to
leave when his documents were returned, the
initial seizure concluded when the officer
returned the documents to defendant)[.]
State v. Jackson, 199 N.C. App. 236, 243, 681 S.E.2d
492, 497 (2009).
In the present case, though Deputy McMurray had completed
writing the warning citation, he had not completed his checks
related to the licenses, registration, insurance, travel logs,
and invoices of Perez’s commercial vehicle. Perez does not
argue that investigation into any of these documents was
improper. The purpose of the stop was not completed until
Deputy McMurray finished a proper document check and returned
the documents to Villalvazo and Perez. Because Perez does not
argue this issue, we do not make any holding regarding which
documents may be properly investigated during a routine
commercial vehicle stop.
The trial court found as fact that: “The actual time for
this traffic stop of [] Defendants was approximately 53
minutes[;]” that Deputy McMurray asked both Villalvazo and Perez
for consent to search the truck, and consent was given by both;
that both Villalvazo and Perez signed consent to search forms;
and that “[d]uring the course of the consent search,” the hidden
compartments were located, and the cocaine was recovered from
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two of those compartments. Perez does not challenge these
findings of fact, and they are therefore binding on appeal.
State v. McLeod, 197 N.C. App. 707, 711, 682 S.E.2d 396, 398
(2009).
The trial court concluded that Villalvazo and Perez
“voluntarily consented and agreed to additional questioning once
the purpose of the traffic stop was completed.” Because these
unchallenged findings of fact support the trial court’s
conclusion that Villalvazo and Perez voluntarily consented to
the search of the truck after the approximately fifty-three
minute stop concluded, we have nothing further to review.
“An appellate court accords great deference
to the trial court's ruling on a motion to
suppress because the trial court is
entrusted with the duty to hear testimony
(thereby observing the demeanor of the
witnesses) and to weigh and resolve any
conflicts in the evidence.” “‘Our review of
a trial court's denial of a motion to
suppress is strictly limited to a
determination of whether it's [sic] findings
are supported by competent evidence, and in
turn, whether the findings support the trial
court's ultimate conclusion.’”
State v. Hernandez, 170 N.C. App. 299, 303-04, 612 S.E.2d 420,
423 (2005) (citations omitted). The fact that the trial court
also included findings of fact and conclusions of law relating
to Defendants’ reasonable suspicion argument at the hearing is
of no moment. The 16 October 2012 order contains unchallenged
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findings of fact supporting the trial court’s conclusion that
the search was a legal search based on the voluntary consent of
both Villalvazo and Perez. This argument is without merit.
V.
In Perez’s third argument, he contends his trial counsel
was ineffective due to his “failure to renew the objection to
the admission of evidence that was fruits of the improper
extension of the traffic stop.” Having held that Perez’s
argument in Section IV. fails, this argument also fails.
VI.
In Perez’s fourth argument, he contends the trial court
erred “in ordering costs for fingerprint examination as lab fees
as part of [Perez’s] sentence in violation of a statutory
mandate.” We agree.
N.C. Gen. Stat. § 7A-304 (2013) covers costs in criminal
prosecutions, and allows certain lab costs to be assessed to a
defendant who is convicted.
For the services of any crime laboratory
facility operated by a local government or
group of local governments, the district or
superior court judge shall, upon conviction,
order payment of the sum of six hundred
dollars ($600.00) to be remitted to the
general fund of the local governmental unit
that operates the laboratory to be used for
law enforcement purposes. The cost shall be
assessed only in cases in which, as part of
the investigation leading to the defendant's
conviction, the laboratory has performed DNA
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analysis of the crime, test of bodily fluids
of the defendant for the presence of alcohol
or controlled substances, or analysis of any
controlled substance possessed by the
defendant or the defendant's agent.
N.C. Gen. Stat. § 7A-304(a)(8) (2013).
The State agrees with Perez that N.C.G.S. § 7A-304(a)(8)
does not allow recovery of lab costs for fingerprint analysis,
“and therefore the State does not object to [Perez’s] request
that $600 be vacated from the $1,200 costs ordered by the trial
court.” The trial court erred in assessing $600.00 for
fingerprint analysis done by the Charlotte-Mecklenburg Police
Department. We reverse and remand for correction of this error.
VII.
In conclusion, we vacate all four of Villalvazo’s
convictions. We vacate Perez’s conviction for conspiracy to
traffic in cocaine. We find no error related to Perez’s
remaining convictions. We reverse and remand for the trial
court to delete the $600.00 it assessed as costs for fingerprint
examination as lab fees as part of Perez’s sentence, and enter a
corrected judgment.
Vacated in part, no error in part, reversed and remanded in
part.
Judges HUNTER, Robert C. and ELMORE concur.