State v. Alvarez , 260 N.C. App. 571 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-945
Filed: 7 August 2018
Lenoir County, No. 15 CRS 50147
STATE OF NORTH CAROLINA
v.
SAMUEL CALLEROS ALVAREZ
Appeal by defendant from judgment entered 13 January 2017 by Judge
Richard Kent Harrell in Lenoir County Superior Court. Heard in the Court of
Appeals 5 March 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Anne Goco
Kirby, for the State.
Anne Bleyman, for defendant-appellant.
CALABRIA, Judge.
Samuel Calleros Alvarez (“defendant”) appeals from a judgment entered upon
a jury verdict finding him guilty of felony maintaining a vehicle for keeping or selling
controlled substances pursuant to N.C. Gen. Stat. § 90-108(a)(7) (2017). After careful
review, we conclude that defendant received a fair trial, free from error.
I. Factual and Procedural Background
In January 2015, the Lenoir County Sheriff’s Office (“LCSO”) planned a
controlled “buy-bust” after a confidential source informed Detective Sergeant Jovani
Villagra that Miguel Goicochea-Medina was trying to sell a kilogram of cocaine. The
STATE V. ALVAREZ
Opinion of the Court
informant placed a recorded phone call to Goicochea-Medina, who agreed to sell the
informant one kilogram of cocaine for $41,500.00. The parties agreed to meet in the
parking lot of a Walmart in Kinston, North Carolina, on 23 January 2015 to conduct
the transaction.
On 23 January 2015, Sergeant Villagra and the confidential informant drove
separately to the Walmart parking lot and waited for Goicochea-Medina to arrive. At
approximately 4:00 p.m., Goicochea-Medina and defendant arrived together in a
white Nissan pickup truck. Although Goicochea-Medina was driving, the vehicle was
registered to defendant’s wife, and defendant used the truck in his work as a
carpenter. Upon their arrival, both men exited the truck. After Sergeant Villagra
repeatedly requested to see “the product,” Goicochea-Medina deferred to defendant,
who informed him that “it was in the back of the pickup truck in a compartment.”
Sergeant Villagra continued to press the men to produce the cocaine. He told the men
that he had the $41,500.00 and showed them a cooler full of cash. Defendant
responded that they needed “to go to the house” in order to unload the truck and
access the cocaine, because he did not want to do it in the Walmart parking lot.
Sergeant Villagra instructed the men to follow him, and then exited the parking lot
in his vehicle. Goicochea-Medina followed Sergeant Villagra in the pickup truck, and
defendant opted to ride with the confidential informant.
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Opinion of the Court
While the men were en route to “the house,” LCSO officers stopped the pickup
truck and placed defendant and Goicochea-Medina under arrest. When a canine unit
alerted to the presence of drugs, officers searched the bed of the truck. The truck
contained a large quantity of tools and was outfitted with wooden flooring, drawers,
compartments, and paneling. Underneath the tools, the officers discovered a small,
covered compartment in the far left corner of the floor, near the cab. After uncovering
the compartment’s false bottom, the officers discovered one kilogram of cocaine
wrapped in plastic and oil.
Defendant was subsequently indicted for trafficking in cocaine by possession
of 400 grams or more; trafficking in cocaine by delivery; trafficking in cocaine by
transportation; conspiracy to traffic by possessing, transporting, selling, or delivering
more than 400 grams of cocaine; and felony maintaining a vehicle for keeping or
selling controlled substances. On 9 January 2017, a jury trial commenced in Lenoir
County Superior Court. Defendant moved to dismiss all charges at the close of the
State’s evidence, and he renewed the motion following his own presentation of
evidence. The trial court denied defendant’s motions to dismiss, but ruled that
trafficking in cocaine by delivery would be submitted to the jury as an attempt charge.
On 13 January 2017, the jury found defendant guilty of all charges except attempted
trafficking in cocaine by delivery. The trial court sentenced defendant to 175 to 222
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Opinion of the Court
months in the custody of the North Carolina Division of Adult Correction and ordered
him to pay a $250,000.00 fine.
Defendant appeals.
II. Motion to Dismiss
Defendant’s sole argument on appeal is that the trial court erred by denying
his motion to dismiss the charge of felony maintaining a vehicle for keeping or selling
controlled substances pursuant to N.C. Gen. Stat. § 90-108(a)(7). Specifically,
defendant contends that the State presented insufficient evidence that he kept or
maintained his pickup truck “over a duration of time” for the purpose of keeping or
selling cocaine. We disagree.
A. Standard of Review
In reviewing a criminal defendant’s motion to dismiss, the question for the trial
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 v. Fritsch,
351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890,
148 L. Ed. 2d 150 (2000). “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). “[T]he trial court must consider all
evidence admitted, whether competent or incompetent, in the light most favorable to
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Opinion of the Court
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).
“The test for sufficiency of the evidence is the same whether the evidence is
direct or circumstantial or both.” Fritsch, 351 N.C. at 379, 526 S.E.2d at 455.
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.
Id. (citation and quotation marks omitted). We review the trial court’s denial of a
criminal defendant’s motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62,
650 S.E.2d 29, 33 (2007).
B. Discussion
N.C. Gen. Stat. § 90-108(a)(7) makes it unlawful for any person
[t]o knowingly keep or maintain any store, shop,
warehouse, dwelling house, building, vehicle, boat,
aircraft, or any place whatever, which is resorted to by
persons using controlled substances in violation of [the
North Carolina Controlled Substances Act] for the
purposes of using such substances, or which is used for the
keeping or selling of the same in violation of [the North
Carolina Controlled Substances Act].
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Opinion of the Court
By its plain language, N.C. Gen. Stat. § 90-108(a)(7) provides “two theories under
which the State may prosecute a defendant . . . .” State v. Mitchell, 336 N.C. 22, 31,
442 S.E.2d 24, 29 (1994). In the instant case, the State prosecuted defendant under
the second theory, which requires proof “that the defendant did (1) knowingly (2) keep
or maintain (3) a vehicle (4) which is used for the keeping or selling (5) of controlled
substances.” Id.
N.C. Gen. Stat. § 90-108(a)(7) “does not prohibit the mere temporary
possession of [a controlled substance] within a vehicle.” Id. at 32-33, 442 S.E.2d at
30. The word “keep” “denotes not just possession, but possession that occurs over a
duration of time.” Id. at 32, 442 S.E.2d at 30; see also id. at 32, 442 S.E.2d at 29-30
(noting various definitions of the word “keep,” including: “to have or retain in one’s
power or possession”; “not to lose or part with”; “to preserve or retain”; and “to
maintain continuously and methodically” (alterations and citation omitted)).
“The determination of whether a vehicle, or a building, 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. In making this determination, courts consider a variety of
factors, including occupancy of the property; possession over a duration of time; the
presence of large amounts of cash or drug paraphernalia; and the defendant’s
admission to selling controlled substances. State v. Frazier, 142 N.C. App. 361, 365,
366, 542 S.E.2d 682, 686 (2001). No factor is dispositive. Id. However, “[t]he focus
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of the inquiry is on the use, not the contents, of the vehicle.” Mitchell, 336 N.C. at 34,
442 S.E.2d at 30. “Although the contents of a vehicle are clearly relevant in
determining its use, its contents are not dispositive when . . . they do not establish
that the use of the vehicle was a prohibited one.” Id.
On appeal, defendant contends that the State presented insufficient evidence
that he kept or maintained his truck “over a duration of time” for the purpose of
keeping or selling cocaine. We disagree.
It is true that much of our case law interpreting N.C. Gen. Stat. § 90-108(a)(7)
has turned on similar arguments. E.g., id. at 32-33, 442 S.E.2d at 30; State v.
Dunston, __ N.C. App. __, __, 806 S.E.2d 697, 699 (2017) (rejecting the defendant’s
argument that “our case law establishes a bright-line rule whereby one incident of
keeping or selling controlled substances is insufficient to sustain a conviction for
maintaining a vehicle for keeping or selling a controlled substance”), aff’d per curiam,
__ N.C. __, 813 S.E.2d 218 (2018). Nevertheless, “[t]he totality of the circumstances
controls, and whether there is sufficient evidence of the ‘keeping or maintaining’
element depends on several factors, none of which is dispositive.” State v. Hudson,
206 N.C. App. 482, 492, 696 S.E.2d 577, 584 (emphasis added), disc. review denied,
364 N.C. 619, 705 S.E.2d 360 (2010).
In the instant case, the totality of the circumstances supports a reasonable
inference that defendant knowingly kept or maintained the truck for the purpose of
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Opinion of the Court
keeping or selling cocaine. Although the vehicle was registered in his wife’s name,
defendant described it as “[his] truck.” Defendant admitted that it was his work
vehicle, that no other party used it, and that he built the wooden drawers and
compartments located in the back of the cab. In conducting a lawful search of the
vehicle, LCSO officers discovered a false-bottomed compartment on the truck bed
floor, hidden underneath “a bunch of tools.” Except for a small hole in the center of
the plywood, the compartment’s concealed lid “looked just like a regular bottom.”
Underneath the false bottom, officers discovered a four- to six-inch “void” containing
one kilogram of cocaine. The cocaine was wrapped in plastic and oil to evade detection
by canine units.
Defendant does not challenge the sufficiency of the evidence supporting his
various trafficking convictions arising from this incident. Moreover, substantial
evidence supports that defendant knowingly participated in the transaction in the
Walmart parking lot immediately prior to his arrest, and that this was not an isolated
incident. After Sergeant Villagra asked to see “the product,” Goicochea-Medina
deferred to defendant, who indicated that the cocaine was in a compartment in the
back of the truck. Sergeant Villagra showed the men a cooler full of cash and told
them that “next time [he] want[ed] a cheaper price” than $41,500.00. However,
defendant refused to produce the cocaine in the Walmart parking lot. At trial, the
State presented an audio recording of the transaction in which defendant repeatedly
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Opinion of the Court
insisted that they “go to the house” to unload the truck. The confidential informant
testified that, on the way to “the house,” defendant questioned him about his prior
experiences with Sergeant Villagra and indicated that they could continue selling
drugs together “if everything worked out well[.]”
Taken in the light most favorable to the State, the evidence showed, generally,
that defendant exercised regular and continuous control over the truck; that he
constructed and knew about the false-bottomed compartment in which one kilogram
of cocaine—an amount consistent with trafficking, not personal use— was discovered
on 23 January 2015; that he was aware that cocaine was hidden in his truck and
willingly participated in the transaction in the Walmart parking lot; and that he held
himself out as responsible for the ongoing distribution of drugs like those discovered
in the truck. Cf. Mitchell, 336 N.C. at 34, 442 S.E.2d at 30 (“The evidence, including
defendant’s actions, the contents of his car, and the contents of his home, are entirely
consistent with drug use, or with the sale of drugs generally, but they do not implicate
the car with the sale of drugs.”).
This evidence is sufficient for a reasonable juror to infer, from the totality of
the circumstances, that defendant knowingly kept or maintained the pickup truck for
the purpose of keeping or selling cocaine. Therefore, the trial court did not err by
denying defendant’s motion to dismiss the charge of felony maintaining a vehicle for
keeping or selling controlled substances pursuant to N.C. Gen. Stat. § 90-108(a)(7).
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Opinion of the Court
NO ERROR.
Judge MURPHY concurs.
Chief Judge McGEE dissents by separate opinion.
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No. COA17-945 – State v. Alvarez
McGEE, Chief Judge, dissenting.
I respectfully dissent and would reverse the trial court’s denial of Defendant’s
motion to dismiss and vacate Defendant’s conviction pursuant to N.C. Gen. Stat. §
90-108(a)(7) (2017).
N.C.G.S. § 90-108(a)(7) states that it is unlawful to “knowingly keep or
maintain any . . . vehicle . . . for the keeping or selling of [controlled substances.]”
Under this provision, the State must prove “that the defendant did (1) knowingly (2)
keep or maintain (3) a vehicle (4) which is used for the keeping or selling ([5]) of
controlled substances.” State v. Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994).
Our Supreme Court held in Mitchell that:
The word “keep” is variously defined as follows: “[to] have
or retain in one's power or possession; not to lose or part
with; to preserve or retain . . . . To maintain continuously
and methodically . . . . To maintain continuously and
without stoppage or variation . . . [; t]o take care of and to
preserve . . . .” “Keep” therefore denotes not just
possession, but possession that occurs over a duration of
time. By its plain meaning, therefore, this statute does not
prohibit the mere temporary possession of marijuana
within a vehicle. . . . That an individual within a vehicle
possesses marijuana on one occasion cannot establish that
the vehicle is “used for keeping” marijuana[.]
Id. at 32-33, 442 S.E.2d at 29-30 (internal citation omitted) (emphasis added).
In State v. Dunston, ___ N.C. App. ___, 806 S.E.2d 697 (2017), aff’d per curiam,
___ N.C. ___, 813 S.E.2d 218 (2018), this Court rejected the defendant’s argument
that “our case law establishes a bright-line rule whereby one incident of keeping or
STATE V. ALVAREZ
McGEE, C.J., dissenting
selling controlled substances is insufficient to sustain a conviction for maintaining a
vehicle for keeping or selling a controlled substance.” Dunston, ___N.C. App. at ___,
806 S.E.2d at 699. Instead, this Court held that “[t]he determination of whether a
vehicle, or a building, is used for keeping or selling controlled substances will depend
on the totality of the circumstances.” Id. (citing Mitchell, 336 N.C. at 34, 442 S.E.2d
at 30).
Under the totality of the circumstances in this case, there was insufficient
evidence that Defendant kept or maintained his vehicle over a duration of time to
keep or sell controlled substances. This Court has looked at a variety of factors to
determine whether a defendant was keeping or maintaining their vehicle for the
purpose of keeping or selling a controlled substance. See State v. Rogers, ___ N.C.
App. ___, 796 S.E.2d 91 (2017) (amount of time the defendant was in control of the
vehicle, ownership of the vehicle); Dunston, ___ N.C. App. ___, 806 S.E.2d 697(location of vehicle, quantity of controlled substances, drug paraphernalia consistent
with the sale of controlled substances, amount of money in the car); State v. Rousseau,
___ N.C. App. ___, 793 S.E.2d 292 (2016) (unpublished) aff’d per curiam, 370 N.C.
268, 805 S.E.2d 678 (2017) (location of the drugs within the vehicle, presence of drug
remnants within the vehicle). No single factor is dispositive of the issue. State v.
Hudson, 206 N.C. App. 482, 492, 696 S.E.2d 577, 584 (2010).
In the case before us, the evidence at trial showed Defendant knew the location
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McGEE, C.J., dissenting
of the cocaine within the truck, the cocaine was hidden within a compartment in the
bed of Defendant’s work truck, and the cocaine was wrapped in plastic and coated in
oil. While this evidence was sufficient to show Defendant engaged in this sale of
drugs, there was insufficient evidence presented that Defendant was keeping or
maintaining the vehicle for that purpose “over a duration of time” as required by
Mitchell. Mitchell, 336. N.C. at 32, 442 S.E.2d at 30. See State v. Rogers, ___ N.C.
App. ___, 796 S.E.2d 91 (2017) (reversing the denial of a motion to dismiss where the
defendant maintained possession of vehicle for one-and-a-half hours prior to arrest
and there was no evidence showing that the defendant had used the vehicle to keep
or sell controlled substances on prior occasions). In the present case, Defendant was
not in control of the vehicle at the time of the attempted drug sale. The kilogram of
cocaine was in a single package, rather than a size typical of individual sales. There
was no testimony that Defendant’s vehicle contained any other items associated with
the sale of drugs, nor contained a significant amount of money.
The majority states that Defendant “held himself out as responsible for the
ongoing distribution of drugs[.]” However, the only evidence presented supporting
that assertion was testimony from the confidential informant stating Defendant said
during the drug sale that “if everything worked out well we could keep working
together.” While this statement might support that Defendant had the intent to
possibly keep or maintain the vehicle for the purpose of selling drugs in the future,
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McGEE, C.J., dissenting
Defendant’s statement was conditional and does not support that he was doing so at
the time of his arrest. The evidence presented does no more than raise “suspicion or
conjecture” that Defendant was “keeping or maintaining” the vehicle for the purpose
of keeping or selling drugs. State v. Alston, 310 N.C. 399, 404, 213 S.E.2d 470, 473
(1984) (“If the evidence is sufficient only to raise a suspicion or conjecture as to either
the commission of the offense or the identity of the perpetrator, the motion to dismiss
should be allowed.”). Because the State failed to meet its burden, Defendant’s motion
to dismiss should have been granted.
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