An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 August 2010
STATE OF NORTH CAROLINA
Nos. 08 CRS 51236, 51237,
51238, 51239, 51240, 51241,
MIGUEL JIMINEZ CAPOTE,
Appeal by Defendants from judgments entered 1 May 2009 by
Judge Richard T. Brown in Superior Court, Hoke County.
the Court of Appeals 23 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General
Steven Armstrong and Special Deputy Attorney General Joseph E.
Herrin, for the State.
Bryan Gates for Defendant Miguel Jiminez Capote; and Jon W.
Myers for Defendant Martin Cruz.
marijuana by possession and by transportation, possession with
intent to sell or deliver marijuana, and maintaining a dwelling for
the keeping or sale of a controlled substance.
each given consolidated sentences of twenty-five to thirty months
marijuana, and maintaining a dwelling for the keeping or sale of a
-2controlled substance, to be served consecutively with a sentence of
twenty-five to thirty months in prison for trafficking in marijuana
The State presented evidence at trial tending to show that
Detective Gallegos of the Fayetteville Police Department identified
a suspicious package at a Federal Express (FedEx) facility in
Fayetteville on 31 May 2008.
After obtaining a search warrant,
contained approximately thirty pounds of marijuana.
contacted to set up a controlled delivery of the package to the
Detective Kivett of the Sheriff's Department, dressed as a
FedEx delivery driver, arrived at the mobile home located at 210
Little Mexico Drive on 2 June 2008 to deliver the package, and was
approached by Cruz.
Before approaching Detective Kivett, Cruz had
been standing in the doorway of a mobile home identified as 225
Little Mexico Drive.
After handing Detective Kivett a slip of
paper on which the tracking number of the package was written, Cruz
accepted the package.
Cruz then turned in the direction of the
mobile home at 225 Little Mexico Drive.
Detective Burchfield of
The record is inconsistent regarding the name of the
street, sometimes referring to this location as "210 Little
Mexico Lane." We refer to it throughout as "210 Little Mexico
-3the Sheriff's Department had also observed Capote at the entrance
of the mobile home located at 225 Little Mexico Drive.
Captain Pierce, and other members of the Sheriff's Department,
later entered an open door of the mobile home at 225 Little Mexico
Drive and found Defendants in the living room area.
Cruz was lying
on a couch near the kitchen wall and Capote was sitting in a chair
across the room.
Detective Burchfield testified that the law
enforcement team did not find anyone else in the mobile home.
FedEx package that Cruz had accepted was found by the Sheriff's
Department in a corner behind the couch, wrapped in black plastic
Members of the Sheriff's Department searched both of the
mobile homes at 210 and 225 Little Mexico Drive, a Nissan pickup
truck (the Nissan truck) parked at 225 Little Mexico Drive, and two
A drug canine did not alert to the presence of
narcotics during the search of 210 Little Mexico Drive. During the
search of 225 Little Mexico Drive, no items were found indicating
that anyone was living at that mobile home on a long-term basis.
Also, the mobile home at 225 Little Mexico Drive did not have water
or electricity service.
The mobile home did contain miscellaneous
furniture, including a couch, a dresser/chest of drawers, a chair,
a mattress, sandwich bags, fake social security cards, "drug
paraphernalia," and a purported picture of Capote. Hoke County tax
records showed that neither Capote nor Cruz owned the real property
located at 225 Little Mexico Drive.
A search of the Nissan truck uncovered the following items:
-4Cruz's wallet, his unofficial North Carolina identification card,
a pocket calendar/notebook with Cruz's name on it, a cell phone,
and traffic citations issued earlier to both Defendants when they
had been driving the Nissan truck. The Nissan truck was registered
to Cesar Jimenez Hernandez.
Records for the cell phone found in the Nissan truck, and
another cell phone found in Capote's pocket, showed several calls
between the two phones and to common telephone numbers.
Defendant was the registered subscriber, or owner, of either cell
However, a slip of paper in Cruz's wallet referenced one
phone's number with the notation "Martin," and the name "on [the
other] phone" was "Miguel."
Telephone company cell tower site
information also showed that both phones were used in the vicinity
of Little Mexico Drive on 31 May 2008, the scheduled delivery date
The State also offered testimony regarding a 29 May 2008
package received by a FedEx facility in Raeford.
That package had
been shipped via a third party from Alton, Texas to a "Miguel
contained dumbbells and approximately three pounds of marijuana.
Detective Burchfield searched the mobile home located at 211 Little
Mexico Drive and questioned an occupant, but found no evidence of
However, Detective Burchfield saw the Nissan truck
parked in front of the mobile home at 225 Little Mexico Drive, and
observed Capote sitting in the passenger seat.
A slip of paper
-5with the tracking number of the 29 May 2008 package was later found
inside the Nissan truck on 2 June 2008.
Defendants did not present any evidence at trial.
Standard of Review
Defendants argue that the trial court erred in denying their
motions to dismiss the charges for insufficient evidence at the
close of the State's evidence and at the close of all the evidence.
"'This Court reviews the denial of a motion to dismiss for
insufficient evidence de novo.'" State v. Wilkerson, ___ N.C. App.
___, ___, 675 S.E.2d 678, 680 (2009) (quoting State v. Robledo, 193
N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008)).
motion to dismiss is properly denied when '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.'"
State v. Harrington, 171 N.C.
App. 17, 24, 614 S.E.2d 337, 344 (2005) (quoting State v. Powell,
299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
evidence is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion."
State v. Crawford, 344 N.C.
65, 73, 472 S.E.2d 920, 925 (1996) (citing State v. Vause, 328 N.C.
231, 236, 400 S.E.2d 57, 61 (1991)).
"The evidence can be direct
or circumstantial, but must give rise to a reasonable inference of
guilt in order to withstand the motion to dismiss."
Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504 (2003) (citing
State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)).
"When ruling on a motion to dismiss for insufficient evidence, the
-6trial court must consider the evidence in the light most favorable
to the State, drawing all reasonable inferences in the State's
State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594
(2009) (citing State v. McCullers, 341 N.C. 19, 28–29, 460 S.E.2d
163, 168 (1995)). "'Any contradictions or discrepancies in the
evidence are for resolution by the jury.'"
App. at 24, 614 S.E.2d at 344
Harrington, 171 N.C.
(quoting State v. Brown, 310 N.C.
563, 566, 313 S.E.2d 585, 587 (1984)).
"[A] motion to dismiss
should be allowed where the facts and circumstances warranted by
the evidence do no more than raise a suspicion of guilt or
conjecture since there would still remain a reasonable doubt as to
Stone, 323 N.C. at 452, 373 S.E.2d at 433
III. Trafficking and Intent to Sell or Deliver
Cruz argues that the trial court erred in denying his motion
to dismiss for insufficient evidence of this charge because the
State failed to present evidence sufficient to show that Cruz
"knowingly possessed and transported marijuana."
marijuana by possession and by transportation requires the State to
prove that the substance was knowingly possessed.
See N.C. Gen.
Stat. § 90–95(h)(1) (2009) ("Any person who sells, manufactures,
(avoirdupois) of marijuana shall be guilty of a felony which felony
shall be known as 'trafficking in marijuana[.]'"
-7violation of N.C. Gen. Stat. § 90–95(a)(1), has two elements: "'1)
knowing possession of the controlled substance and 2) possession
with intent to sell or deliver it.'"
214, 216, 390 S.E.2d 355, 357
State v. Hyatt, 98 N.C. App.
(1990) (citation omitted).
Possession may be actual or constructive.
281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
State v. Harvey,
"When the defendant
does not have actual possession, but has the power and intent to
control the use or disposition of the substance, he is said to have
Baldwin, 161 N.C. App. at 391, 588
S.E.2d at 504–05 (citing State v. Butler, 356 N.C. 141, 146, 567
S.E.2d 137, 140 (2002)).
Constructive possession is determined by
the totality of the circumstances.
See State v. James, 81 N.C.
App. 91, 93, 344 S.E.2d 77, 79 (1986) ("As the terms 'intent' and
totality of circumstances in each case. No single factor controls,
but ordinarily the question will be for the jury.").
"The defendant may have the power to control either alone or
jointly with others."
Miller, 363 N.C. at 99, 678 S.E.2d at 594
(citing State v. Fuqua, 234 N.C. 168, 170–71, 66 S.E.2d 667, 668
When narcotics "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
"[W]here possession of the
possession of the contraband materials may not
Harrington, 171 N.C. App. at 24, 614 S.E.2d at 344–45 (internal
Incriminating circumstances relevant to
constructive possession "include evidence that
defendant: (1) owned other items found in
proximity to the contraband; (2) was the only
person who could have placed the contraband in
the position where it was found; (3) acted
nervously in the presence of law enforcement;
(4) resided in, had some control of, or
regularly visited the premises where the
contraband was found; (5) was near contraband
in plain view; or (6) possessed a large amount
State v. Alston, 193 N.C. App. 712, 716, 668 S.E.2d 383, 386
(2008), aff’d, 363 N.C. 367, 677 S.E.2d 455 (2009) (citation
In State v. Turner, 168 N.C. App. 152, 607 S.E.2d 19
(2005), this Court examined a case in which the defendant was
seated next to a wadded-up blanket that concealed drugs, "[h]e
'nervously,'" while the drugs appeared to be passed back and forth
under the blanket.
Id. at 156, 607 S.E.2d at 22.
Our Court found
that North Carolina appellate courts have "held that similar
circumstances—involving close proximity to the controlled substance
and conduct indicating an awareness of the drugs, such as efforts
at concealment or behavior suggesting a fear of discovery—are
sufficient to permit a jury to find constructive possession." Id.,
607 S.E.2d at 22–23.
Additionally, in Miller, the North Carolina
Supreme Court found "that two factors frequently considered are the
defendant's control over the place where the contraband is found."
Miller, 363 N.C. at 100, 678 S.E.2d at 595.
-9"[k]nowledge is a mental state and may be
proved by the conduct and statements of the
defendant, by statements made to him by
others, by evidence of reputation which it may
be inferred had come to his attention, and by
inference of knowledge might reasonably be
State v. Nunez, ___ N.C. App. ___, ___, 693 S.E.2d 223, 226 (2010)
(quoting State v. Boone, 310 N.C. 284, 294–95, 311 S.E.2d 552, 559
(1984)). "'Knowledge may be shown even where the defendant's
possession of the illegal substance is merely constructive rather
State v. Lopez, 176 N.C. App. 538, 541, 626 S.E.2d
736, 739 (2006) (quoting State v. Crudup, 157 N.C. App. 657, 662,
580 S.E.2d 21, 26 (2003)).
In the case before us, Cruz accepted a package containing
The package was later found unopened and concealed in
trash bags behind the couch Cruz was lying on at the time members
of the Sheriff's Department entered the mobile home. At trial, the
Detective Kivett and presented a handwritten slip of paper noting
the package's tracking number; (2) Cruz accepted the package,
despite its being in another person's name, and returned to the
mobile home at 225 Little Mexico Drive; (3) the package was then
placed in a corner behind a couch, inside trash bags; and (4) Cruz
was found on a couch near the package when members of the Sheriff's
Department entered; (5) only one vehicle, which could have served
to transport the large quantity of drugs within the package, was
present at the mobile home and was shown to have been used jointly
by both Defendants; (6) the mobile home was uninhabited and was
-10occupied by Defendants only at the time the package was discovered;
and (7) evidence demonstrated prior ties to the mobile home where
the package was located, including cell phone records showing use
of Cruz's phone near the vicinity of the mobile home on the same
day as the scheduled delivery of the package.
evidence in a light most favorable to the State, we hold that a
jury could reasonably infer: (1) that Cruz was in close proximity
conjunction with Capote, the only other occupant in the mobile
home, had joint control of the mobile home and the package; and (3)
the drugs had been placed in a location, and hidden in a manner,
that could have only been accomplished, individually or jointly, by
See Miller, 363 N.C. at 98, 678 S.E.2d at 594 (citing
McCullers, 341 N.C. at 28–29, 460 S.E.2d at 168).
offenses to the jury for its consideration and determination. See,
e.g., Nunez, ___ N.C. App. at ___, 693 S.E.2d at 226; Baldwin, 161
N.C. App. at 391, 588 S.E.2d at 505; State v. Rosario, 93 N.C. App.
627, 638, 379 S.E.2d 434, 440 (1989).
Cruz also argues that "reason to know" and "willful blindness"
sufficient to establish the element of knowledge in this context.
However, Cruz's reliance on these arguments is misplaced given the
actions that he took regarding the package.
Although Cruz did not
have exclusive control of the marijuana or the premises, when taken
in a light most favorable to the State, sufficient incriminating
-11circumstances were shown to provide evidence of knowledge and
possession sufficient to survive a motion to dismiss.
363 N.C. at 98, 678 S.E.2d at 594 (citing McCullers, 341 N.C. at
28–29, 460 S.E.2d at 168).
B. Defendant Capote
Capote argues the judgment of the trial court should be
constructive possession of the controlled delivery package and the
marijuana it contained.
Capote did not have exclusive possession of the premises in
this case; therefore, other incriminating circumstances must be
presented to prove constructive possession.
App. at 24, 614 S.E.2d at 344–45.
Harrington, 171 N.C.
Both the State and Capote cite
Miller to define "other incriminating circumstances."
our Supreme Court concluded that applicable case law demonstrates
that "proximity to the contraband and indicia of the defendant's
Miller, 363 N.C. at 100, 678 S.E.2d at 595.
The Court concluded
defendant was found within touching distance of the crack cocaine
in question and defendant's identity documents were in the same
room," the evidence "was sufficient to support a finding of guilt
based upon the theory of constructive possession."
678 S.E.2d at 593.
See id. at 97,
-12Capote's argument applies the holding of Miller too rigidly in
that it fails to recognize that, although the Miller factors are
"frequently considered," they are not exclusively considered in
determining what constitutes an incriminating circumstance in a
constructive possession case.
Id. at 100, 678 S.E.2d at 595.
Specifically, Capote argues that the State's evidence showing his
association with Cruz, his presence at the mobile home once before
the 2 June 2008 delivery, his connection with the Nissan truck
parked at the mobile home, and his presence in the same room as the
package is insufficient evidence under the Miller standard. Capote
also argues that the absence of certain evidence weakens the
He points to the State's failure to show that he had
knowledge of the package's contents, that he was involved in drug
trafficking with Cruz, that he had a tie with the real property, or
that any of his possessions or identity documents were found inside
the mobile home.
Nevertheless, given the standard of review applicable to this
case, the evidence presented by the State is significant. Although
Capote may not have been within touching distance of the package
and did not have identification documents in the mobile home, like
the defendant in Miller, Capote was with Cruz in the same room in
a mobile home that lacked basic elements of habitability, when the
package was discovered.
In that room, between the time of the
delivery and its discovery by the Sheriff's Department, the package
had been hidden in a corner and enclosed in trash bags.
-13unreasonable to conclude that a jury could find that Defendants had
joint power to control the package, its contents, and the mobile
home in which they were found.
This conclusion is further supported by the fact that only one
vehicle – the Nissan truck – which both Defendants were shown to
have used, was present at the mobile home.
Also, within the Nissan
truck was a slip of paper with the tracking number of the 29 May
A jury could reasonably view this evidence as yet
another element of power and intent to control the package and its
Capote was also present at the mobile home, sitting in
the same Nissan truck, during
Detective Burchfield's visit to 211
Little Mexico Drive on 29 May 2008.
Additionally, there was
paraphernalia" were discovered in the mobile home.
circumstantial, when considered in a light most favorable to the
State, this evidence warrants consideration by a jury, and the
denial of Capote's motions to dismiss.
See id. at 98, 678 S.E.2d
at 594 (citing McCullers, 341 N.C. at 28–29, 460 S.E.2d at 168).
Maintaining a Dwelling for the Keeping and Sale of
We must determine whether the trial court erred in denying
maintaining a dwelling to keep and sell controlled substances
because the State presented insufficient evidence to support the
-14intentionally keeping or maintaining a place
for the purpose of keeping or selling
controlled substances under N.C. Gen. Stat. §
90–108(a)(7) (2007), the State has the burden
of proving a defendant: "(1) knowingly or
intentionally kept or maintained; (2) a
building or other place; (3) being used for
the keeping or selling of a controlled
State v. Fuller, ___ N.C. App. ___, ___, 674 S.E.2d 824, 832 (2009)
(quoting State v. Frazier, 142 N.C. App. 361, 365, 542 S.E.2d 682,
686 (2001)); see also N.C. Gen. Stat. § 90–108(a)(7) (2009) (making
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 used for the
consider whether the State presented sufficient evidence of the
that Defendants kept or maintained the mobile home
at 225 Little Mexico Drive within the meaning of N.C. Gen. Stat. §
To determine whether a person keeps or
maintains a place under N.C. Gen. Stat. §
dispositive: "ownership of the property,
occupancy of the property, repairs to the
property, payment of utilities, payment of
repairs, and payment of rent."
Baldwin, 161 N.C. App. 382, 393, 588 S.E.2d
497, 506 (2003). The determination depends on
the totality of the circumstances. Id. See
also State v. Boyd, 177 N.C. App. 165, 174,
628 S.E.2d 796, 804 (2006) ("A pivotal factor
is whether there is evidence that defendant
owned, leased, maintained, or was otherwise
responsible for the premises.").
Fuller, ___ N.C. App. at ___, 674 S.E.2d at 832.
In State v. Bowens, 140 N.C. App. 217, 535 S.E.2d 870 (2000),
-15our Court applied these principles to a case in which the defendant
was seen in and out of the dwelling 8-to-10
times over the course of 2-to-3 days; nobody
else was seen entering the premises during
this 2-to-3 day period of time; men's clothing
was found in one closet in the dwelling;
[d]efendant lived at [the dwelling], although
he offered no basis for that opinion and had
not checked to see who the dwelling was rented
to or who paid the utilities and telephone
Id. at 221–22, 535 S.E.2d at 873.
Additionally, "[t]here [was] no
evidence [d]efendant was the owner or the lessee of the dwelling,
or that he had any responsibility for the payment of the utilities
or the general upkeep of the dwelling."
Id. at 222, 535 S.E.2d at
This Court has repeatedly found that evidence comparable to
that presented in Bowens does not constitute substantial evidence
of maintaining a dwelling to keep and sell controlled substances.
See, e.g., State v. Carter, 184 N.C. App. 706, 709–10, 646 S.E.2d
846, 849 (2007) (finding evidence insufficient when the State only
showed that defendant was the sole occupant of the residence at the
time of the search; and three photographs of defendant, along with
Identification Card, social security card, and birth certificate
were found in the residence, but "[t]he State presented no evidence
indicating that defendant owned the property, bore any expense for
responsibility for the residence"); State v. Harris, 157 N.C. App.
647, 652, 580 S.E.2d 63, 66 (2003) (holding evidence insufficient
when the State only showed that the defendant had been seen at the
-16residence several times over a period of two months, an officer
spoke with the defendant there twice during that period, and
personal property belonging to the defendant was found in the
In the case before us, the State presented the following
evidence to establish that Defendants kept or maintained the mobile
home at 225 Little Mexico Drive: (1) Defendants received marijuana
at the mobile home; (2) some furniture was found in the mobile
home, which would allow for some degree of residency, (3) items
like "drug paraphernalia," fake social security cards, and sandwich
bags were found in the mobile home, and (4) Defendants stayed at
the mobile home for a duration of time during which they had
exclusive control of the location.
In light of Bowens and analogous cases, this evidence is
insufficient to support Defendants' conviction for maintaining a
In fact, components of the State's evidence, like the
presence of "drug paraphernalia," speak more to the purpose of the
property, an element not challenged by Defendants, rather than any
actions taken by Defendants to maintain the mobile home.
Carter, 184 N.C. App. at 709, 646 S.E.2d at 849 n.1 (citing
Frazier, 142 N.C. App. at 366, 542 S.E.2d at 686).
deficiency is the State's failure to provide evidence indicating
that Defendants owned the real property, bore any expense for
responsibility for the mobile home.
It appears more likely that
-17Defendants merely occupied the mobile home from time to time.
'maintaining' a dwelling."
State v. Spencer, 192 N.C. App. 143,
148, 664 S.E.2d 601, 605 (2008) (citing State v. Kraus, 147 N.C.
App. 766, 768–69, 557 S.E.2d 144, 147 (2001)).
For the reasons set forth above, we reverse each Defendant's
conviction on the charge of maintaining a dwelling for the purpose
of keeping or selling a controlled substance.
The trial court
consolidated the convictions for maintaining a dwelling with the
convictions for trafficking in marijuana by transportation and
possession with intent to sell or deliver marijuana. Thus, we must
remand for resentencing as to the trafficking in marijuana by
transportation and possession with intent to sell or deliver
See State v. Brown, 350 N.C. 193, 213, 513
S.E.2d 57, 70 (1999) (remanding for resentencing on remaining
conviction because the Court could not "assume that the trial
court's consideration of two offenses, as opposed to one, had no
affect on the sentence imposed").
However, Defendants have failed
to demonstrate any error with respect to their convictions for
trafficking in marijuana by possession.
We find no error in 08 CRS 51236 and 08 CRS 51242; we remand
for re-sentencing in 08 CRS 51237, 08 CRS 51239, 08 CRS 51240, and
08 CRS 51241; and we reverse in 08 CRS 51238 and 08 CRS 51243.
No error in part, remanded in part, and reversed in part.
Judges GEER and ERVIN concur.
-18Report per Rule 30(e).