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State v. Velazquez-Perez

Court of Appeals of North Carolina

April 15, 2014

STATE OF NORTH CAROLINA
v.
ERADIO VELAZQUEZ-PEREZ and EDGAR AMPELIO-VILLALVAZO

Heard in the Court of Appeals January 7, 2014.

Page 870

Buncombe County. Nos. 11 CRS 6952-55, 11 CRS 60583-86. Marvin P. Pope, Judge.

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. Judges Robert C. HUNTER and ELMORE concur.

OPINION

Page 871

McGEE, Judge.

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.

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 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 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

Page 872

answers given by Villalvazo and Perez. Both Villalvazo and Perez told Deputy McMurray that Villalvazo had not been working for Perez for very long. 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.

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 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 ...

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