State v. Agubata , 94 N.C. App. 710 ( 1989 )

PHILLIPS, Judge.

In a joint trial with Patrick Agubata, who became her husband four days earlier, defendant was convicted of trafficking in heroin by possessing more than fourteen grams but less than twenty-eight grams of heroin in violation of G.S. 90-95(h)(4)(b). Because the evidence shows that the heroin in her possession, apart from the various substances it was mixed with, weighed less than four grams she contends that she was entitled to have the trafficking charge dismissed and the jury instructed on the lesser included offense of felonious possession of heroin, as her motions requested. The contentions have no merit. Under the provisions of G.S. 90-95(h)(4) the offense of trafficking in heroin or any of the other substances referred to therein does not consist of just possessing the stated amount of the listed drugs; it also consists of possessing “any mixture containing such substance,” State v. Dorsey, 71 N.C. App. 435, 322 S.E. 2d 405 (1984), State v. Willis, 61 N.C. App. 23, 300 S.E. 2d 420, modified and affirmed, 309 N.C. 451, 306 S.E. 2d 779 (1983), and the evidence indicates that defendant had in her possession several heroin containing mixtures that weighed more than twenty-two grams altogether. This being the only evidence as to the weight of the forbidden mixtures possessed by defendant, it raised no issue as to the lesser included offense and the court did not have to charge on it. State v. Thompson, 306 N.C. 526, 294 S.E. 2d 314 (1982).

Defendant next contends that the court erred in refusing to sever her trial from that of her codefendant, Patrick Agubata. The initial joinder order, consented to by the codefendants, was entered two months before trial and is not attacked. The claimed basis for the motion to sever, made the day trial began, is that she married the codefendant four days earlier and they had antagonistic defenses. But since no such conflict is alluded to in her brief or revealed by the record the contention is overruled.

Defendant finally contends that the trial court prejudicially erred by refusing to admit into evidence two handwritten letters postmarked Houston, Texas that Patrick Agubata received throúgh the mail after his arrest. The letters were signed “Pat” and contained statements indicating that the drugs he and defendant were charged with possessing belonged to the writer and that he was sorry for the trouble caused them. In a voir dire hearing concerning the proffered evidence, Patrick Agubata testified in substance that the letters were written by one Patrick Babatundi who, he said, resided with him and defendant in the house where the controlled substances were seized, and that a subpoena issued for Babatundi’s attendance in court was returned unserved because the sheriff could not locate him. Defendant contends that these letters should have been admitted pursuant to either Rule 804(b)(3), Rule 803(24), or Rule 804(b)(5) of the N.C. Rules of Evidence. It is unnecessary to determine whether the various other requirements of any of these rules were met by the letters and the evidence about them; for before the statements could be received into evidence under either rule relied upon the trial court had to determine, inter alia, that the surrounding circumstances indicated that the statements were trustworthy, State v. Wilson, 322 N.C. 117, 134, 367 S.E. 2d 589, 599 (1988); State v. Smith, 315 N.C. 76, 337 S.E. 2d 833 (1985), and the court did not so determine. Instead, it permissibly found that the statements were not trustworthy for the sensible reason that the only evidence as to Patrick Babatundi’s existence and presence in the house with the codefendants was that given by Patrick Agubata; and that the police who arrested them found nothing in the house to indicate that Babatundi lived or had been there.

No error.

Judges PARKER and Cozort concur.