State v Rivera-Ocana
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA11-583 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 STATE OF NORTH CAROLINA v. Mecklenburg County No. 09 CRS 230059 MARCO ANTONIO RIVERA-OCANA Appeal by defendant from judgment entered 8 November 2010 by Judge Eric Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 October 2011. Attorney General Roy Cooper, by Assistant Attorney General Ward Zimmerman, for the State. Winifred H. Dillon, attorney for defendant. ELMORE, Judge. Marco Antonio Rivera-Ocana (defendant) appeals from a jury conviction entered 8 November 2010 for trafficking in cocaine by possession. On Havens 21 of After careful consideration, we find no error. June the 2009, Officers Jeffrey Charlotte-Mecklenburg Zederbaum Police and Department Robert were patrolling the parking lot of Compare Foods located off North -2Tryon Street in Charlotte. The officers observed a blue Chevrolet Suburban and a silver Honda sedan parked side by side. The Suburban was registered to an individual named Esperanza Guzman. Defendant was in the driver s seat of the Suburban, and Lanardo Hernandez Sanchez was in the passenger s seat of the Suburban. The officers approached defendant and Sanchez to exit. the Frosted floorboard. Flakes and asked Defendant then granted consent for the officers to search the vehicle. Kellogg s vehicle, cereal box The officers found a on the passenger side The cereal box contained a roll of black electrical tape and two bricks of cocaine. Defendant and Sanchez were then arrested. On 29 June 2009, defendant was indicted for 1) trafficking in 400 grams or more of cocaine by possession and 2) trafficking in 400 grams or more of cocaine by transportation. trial, one Charlesworth of the of Crime Laboratory. the bricks was chemically Charlotte-Mecklenburg Prior to analyzed Police by Ann Department Charlesworth found that the brick contained 498.36 grams of cocaine. On 18 December 2009, the State gave notice to defendant of its intent to introduce Charlesworth s report at trial. trial, Officer On 3 November 2010, a trial was held. Zederbaum testified to the results At of -3Charlesworth s Next, the State Defendant did evidence. a analysis, offered not but Charlesworth into evidence object to the did not testify. Charlesworth s report being report. admitted into At the close of the State s evidence, defendant made motion to defendant s dismiss motion all to charges. dismiss The charge the trial court of granted trafficking in cocaine by transportation, but denied the motion to dismiss the charge of trafficking in cocaine by possession. At the close of all evidence, defendant renewed his motion to dismiss the charge of trafficking in cocaine by possession. The trial court again denied this motion. On 8 November 2010, the jury convicted trafficking in cocaine by possession. defendant of The trial court then imposed a sentence of 175-219 months imprisonment. Defendant now appeals. Defendant denying his first motion argues to cocaine by possession. State failed to that dismiss the the trial charge court of erred in trafficking in Specifically, defendant argues that the present sufficient evidence actually or constructively possessed the cocaine. that defendant We disagree. In ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime[.] Substantial -4evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion....A case should be submitted to a jury if there is any evidence tending to prove the fact in issue[.] State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007) (quotations and citations omitted) (alterations removed). A defendant constructively possesses contraband when he or she has the intent and capability to maintain control and dominion over it. State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (quotations and citations omitted). When a defendant is not in exclusive possession of the place where contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession. Id. [T]wo factors frequently considered are the defendant s proximity defendant s control found. to the contraband over the place where and the indicia of the contraband is Id. at 100, 678 S.E.2d at 595. Here, the officers found a Kellogg s Frosted Flakes cereal box containing floorboard of two bricks of the Suburban. cocaine on Defendant driver s seat of that same vehicle. the passenger was seated side in the Therefore, defendant was in close proximity to the cocaine at the time it was discovered. Furthermore, the fact that defendant was seated behind the wheel of the vehicle indicates that defendant had the ability to -5control the place where the contraband was found. We conclude that these facts were sufficient for the case to be submitted to the jury. Accordingly, the trial court did not err in denying defendant s motion to dismiss. Defendant next argues that the trial court committed plain error in admitting the results conducted by Charlesworth. of the chemical analysis Specifically, defendant argues that admission of the report violated his constitutional right to confront witnesses, because he was not opportunity to cross-examine Charlesworth. provided with an We disagree. According to N.C. Gen. Stat. § 90-95, a report from the Charlotte-Mecklenburg admissible without Police further Department Crime authentication and Laboratory is without the testimony of the analyst if: (1) The State notifies the defendant at least 15 business days before the proceeding at which the report would be used of its intention to introduce the report into evidence under this subsection and provides a copy of the report to the defendant, and (2) The defendant fails to file a written objection with the court, with a copy to the State, at least five business days before the proceeding that the defendant objects to the introduction of the report into evidence. N.C. Gen. Stat. § 90-95(g) (2009). -6Here, the State filed a Notice of Intent to Introduce Evidence at Trial of Charlesworth s report on 18 December 2009. Defendant did not object to the admission of the report at that time, or at trial. The trial was held on 3 November 2010, approximately months eleven after the State provided written notice to defendant. Therefore, we conclude that the trial court admitting did not err in the analysis conducted by Charlesworth. No error. Judges BRYANT and STEPHENS concur. Report per Rule 30(e). results of the chemical
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
