Heard March 19, 2015
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.
Glenn Gerding for defendant-appellee.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, __ N.C.App. __, 763 S.E.2d 17 (2014), reversing judgments entered on 24 May 2013 by Judge Hugh B. Lewis in Superior Court, Mecklenburg County, and ordering that defendant receive a new trial. Heard in the Supreme Court on 19 March 2015.
Defendant Jose Gustavo Galaviz-Torres was convicted of one count of trafficking in at least 400 grams of cocaine by possession, one count of trafficking in at least 400 grams of cocaine by transportation, and one count of possession of cocaine with the intent to sell or deliver. A unanimous panel of the Court of Appeals reversed defendant's convictions and awarded defendant a new trial. We now reverse the Court of Appeals' decision.
In March 2012, officers of the Charlotte-Mecklenburg Police Department and the Drug Enforcement Administration began a joint investigation into defendant's activities based on information that had been received from a confidential informant indicating that defendant was trafficking in cocaine. On 26 March 2012, investigating officers arranged for the confidential informant to purchase approximately two kilograms of cocaine from defendant in a Taco Bell parking lot. After defendant arrived at the parking lot driving a gray van, the informant met with defendant, observed that the drugs to be purchased were in the vehicle, and contacted Special Agent Jorge Alamillo of the Drug Enforcement Administration, who gave the signal that defendant should be arrested. During a search of the van, investigating officers found a gift bag next to the driver's seat containing three packages of cocaine, the largest of which held a kilogram of that substance.
After having been advised of his Miranda rights, defendant told investigating officers that he had procured the cocaine from an individual named Gavilan, that he paid $32,000 for a kilogram of cocaine, and that cocaine could be found at his residence. In addition, defendant took investigating officers to the location at which he claimed to have obtained the cocaine found in the van, although a search of the premises in question did not result in the discovery of any controlled substances. Finally, defendant admitted to investigating officers that he had previously sold or delivered nine ounces of cocaine in Gastonia and that, on the day of his arrest, he was supposed to make $2,000 for delivering the cocaine that had been seized from the vehicle that he was driving.
On 2 April 2012, defendant was indicted for trafficking in at least 400 grams of cocaine by possession, trafficking in at least 400 grams of cocaine by transportation, and possession of cocaine with the intent to sell or deliver. The charges against defendant came on for trial at the 20 May 2013 criminal session of the Superior Court, Mecklenburg County, before the trial court and a jury. At trial, defendant testified that he had arrived at the Taco Bell on the date in question to deliver ladders at the request of a man for whom he had performed construction work in the past. Defendant claimed that he had borrowed the van that he was driving, that he did not know that the van contained cocaine, and that the cocaine seized from the van did not belong to him. In addition, defendant denied having made any statements to investigating officers admitting that he had been transporting cocaine on the day in question or that he had been paid to transport cocaine in the past. Although defendant did acknowledge having told investigating officers that there was cocaine at his house, he denied being the owner of the cocaine that was found there.
At the conclusion of the trial, the trial court instructed the jury that, to convict defendant of possession of cocaine with the intent to sell or deliver, the jury had to be satisfied beyond a reasonable doubt:
First, that the Defendant knowingly possessed cocaine. . . . A person possesses cocaine when he is aware of its presence and has either by himself or together with others both the power and intent ...