An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1318
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 12CRS213245, 12CRS213246
JOSE GUSTAVO GALAVIZ-TORRES
Defendant
Appeal by Defendant from judgments entered 24 May 2013 by
Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard
in the Court of Appeals 20 March 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Joseph L. Hyde, for the State.
Glenn Gerding, for Defendant-appellant.
DILLON, Judge.
Jose Gustavo Galaviz-Torres (“Defendant”) appeals from
convictions for one count of trafficking in cocaine by
possession, one count of trafficking in cocaine by
transportation, and one count of possession with intent to sell
or deliver cocaine. Because we are compelled by our decision in
State v. Coleman, __ N.C. App. __, 742 S.E.2d 346, disc. review
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denied, __ N.C. __, 752 S.E.2d 466 (2013) to conclude that the
trial court committed plain error by failing to give a jury
instruction regarding Defendant’s guilty knowledge on each
charge, we reverse the Defendant’s convictions and remand for a
new trial.
On 2 April 2012, Defendant was indicted for trafficking
cocaine by possession, trafficking cocaine by transportation,
and possession with intent to sell or deliver cocaine.
Defendant was tried on these charges at the 20 May 2013 Criminal
Session of Mecklenburg County Superior Court. The State’s
evidence tended to show that Charlotte-Mecklenburg Police
Department and the Drug Enforcement Agency (“police
investigators”) began jointly investigating Defendant based on
information from a confidential informant that he was
trafficking cocaine. On the afternoon of 26 March 2012,
Defendant arrived at a Taco Bell parking lot in a van to
participate in a drug sale with the informant. As a result of
this meeting, Defendant was immediately arrested. Incident to
the arrest, the police investigators searched the van that
Defendant had driven to the location and found a gift bag next
to the driver’s seat containing what was later determined to be
over 1 kilogram of cocaine. After receiving his Miranda rights,
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Defendant told police investigators that he was transporting the
cocaine for someone else and that he had been paid for
transporting cocaine in the past.
Defendant, however, testified that he was at the Taco Bell
delivering ladders for a man he had performed construction work
for in the past; that he had borrowed the van to make the
delivery; that he was not aware that there was cocaine in the
van; and that the cocaine did not belong to him. Also,
Defendant denied making any statements to police investigators
that he had been transporting cocaine on the day in question or
that he had been paid in the past to transport cocaine.
On 24 May 2013, a jury found Defendant guilty of all three
charges. The trial court consolidated the possession and the
trafficking by possession convictions and ordered Defendant to a
term of 175 to 222 months of imprisonment. On the conviction
for trafficking by transportation, the trial court sentenced
Defendant to a consecutive term of 175 to 222 months of
imprisonment. The trial court also fined Defendant $250,000 for
each judgment. Defendant gave oral notice of appeal at trial.
__________________________________________________________
Defendant raises only one issue on appeal. Specifically,
Defendant argues that the trial court committed plain error by
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failing to instruct the jury that it had to find beyond a
reasonable doubt that he knew what he possessed and transported
was cocaine. The record shows that Defendant failed to object
to the exclusion of a jury instruction regarding his guilty
knowledge. When a defendant fails to preserve an instructional
error at trial for appellate review, our Court may nonetheless
review for plain error. See State v. Odom, 307 N.C. 655, 660,
300 S.E.2d 375, 378 (1983); N.C.R. App. P. 10(a)(4). Our
Supreme Court has stated that “[i]n order to prevail under a
plain error analysis, Defendant must establish not only that the
trial court committed error, but that absent the error, the jury
probably would have reached a different result.” State v.
Steen, 352 N.C. 227, 269, 536 S.E.2d 1, 25-26 (2000) (citation
and quotation marks omitted), cert. denied, 531 U.S. 1167, 148
L. Ed. 2d 997 (2001).
In the present case, each of the three crimes for which
Defendant was convicted contains an element requiring Defendant
to have knowledge that what he was possessing or transporting
was cocaine. Our Supreme Court has held that “[f]elonious
possession of a controlled substance has two essential elements.
The substance must be possessed and the substance must be
knowingly possessed.” State v. Weldon, 314 N.C. 401, 403, 333
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S.E.2d 701, 702-03 (1985) (holding that “a defendant must be
aware of the presence of an illegal drug if he is to be
convicted of possessing it”) (emphasis added). Likewise, to
establish trafficking by possession or by transportation, the
State must show that the defendant knowingly possessed or
transported, respectively, the requisite amount of cocaine.
State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504
(2003).
At trial, Defendant’s sole defense was essentially based on
his testimony that he did not know there was cocaine in the van
he was driving. We have held that where the “evidence when
viewed in the light most favorable to the defendant discloses
facts which are legally sufficient to constitute a defense to
the charged crime, the trial court must instruct the jury on the
defense.” State v. Everett, 163 N.C. App. 95, 100, 592 S.E.2d
582, 586 (2004) (citation and quotation marks omitted) (emphasis
added). Our Supreme Court has held that “when the defendant
introduces evidence of lack of guilty knowledge the court must
charge on it.” State v. Nobles, 329 N.C. 239, 244, 404 S.E.2d
668, 671 (1991).
Defendant’s argument is in reference to pattern jury
instructions N.C.P.I. Criminal 260.15, 260.17, and 260.30 which
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correspond with each of his three convictions. The instruction
for each crime contains a requirement that the jury find, beyond
a reasonable doubt, that the defendant “knowingly possessed” or
“knowingly transported” cocaine. Each instruction also contains
a footnote which essentially requires the trial court give an
additional instruction in situations where a defendant contends
he did not know the true identity of what he possessed; namely,
an instruction that the jury must also find that the defendant
knew that it was cocaine that he was possessing or transporting.
Each footnote cites our Supreme Court’s decision in State v.
Boone, 310 N.C. 284, 311 S.E.2d 552 (1984) as the authority
requiring this additional instruction.
In Boone, the defendant was convicted of possessing
marijuana when he was driving a car that had a duffel bag
containing the drug in his trunk. Id. at 285-86, 311 S.E.2d at
554. The defendant, however, claimed that a friend had asked
him to transport the bag; that he knew the bag was in his car;
but that he did not know that there was marijuana in the bag.
Id. at 294, 311 S.E.2d at 559. While reviewing State v.
Elliott, 232 N.C. 377, 61 S.E.2d 93 (1950), the Court noted that
for general intent crimes intent or knowledge is presumed in
committing the act, unless the defendant pleads lack of
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knowledge, making intent or knowledge a determinative issue of
fact and an element of the crime. Id. at 292, 311 S.E.2d at
558. The Supreme Court affirmed this Court’s awarding of the
defendant a new trial because the pattern instruction in use at
that time allowed the jury to convict if it found that the
defendant “knew or had reason to know” that what he possessed
was the illegal drug. Id. at 294, 311 S.E.2d at 559 (emphasis
added). The Court held that this instruction was inappropriate
where the defendant being charged with the general intent crime
of possession of marijuana put at issue whether he knew that
what he was in possession of was, in fact, an illegal drug. Id.
In the present case, the State argues that the additional
instruction in the footnote is not required under Boone because,
unlike the instruction in Boone which allowed a jury to convict
even if it found that the defendant did not have guilty
knowledge but merely had “reason to know” that he possessed an
illegal drug, the pattern instruction used here states that the
jury must find that Defendant “knowingly possessed” cocaine or
“knowingly transported” cocaine. In other words, the State
argues that the additional instruction in the footnote is not
mandated by Boone because the language in the body of the
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instruction used in the present case already requires the jury
find that Defendant possessed “guilty knowledge.”
We recently addressed this same issue in State v. Coleman,
___ N.C. App. ___, 742 S.E.2d 346, disc. review denied, ___ N.C.
___, 752 S.E.2d 466-67 (2013). In Coleman, the defendant was
tried and convicted on charges of trafficking in heroin by
possession and trafficking in heroin by transportation. ___ N.C.
App. at ___, 742 S.E.2d at 347. Some of the evidence tended to
show that the defendant was carrying a box which he thought
contained only marijuana and cocaine, but that he did not know
that the box also contained heroine. Id. at ___, 742 S.E.2d at
349. At trial, the trial court instructed the jury, in
pertinent part, that it must find that the defendant “knowingly
possessed heroin” and that the defendant “knowingly transported
heroin[,]” as stated in N.C.P.I. Crim. 260.17 and N.C.P.I. Crim.
260.30, respectively; however, the defendant failed to request
the additional footnote jury instructions. On appeal, the
defendant contended that the trial court’s failure “to instruct
the jury in accordance with the pattern jury instructions
regarding circumstances where a defendant contends he did not
know the true identity of what he possessed” amounted to plain
error. Id. at ___, 742 S.E.2d at 349, 351. This Court, after
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noting the nearly identical instructions in footnote 4 of either
N.C.P.I. Crim. 260.17 or N.C.P.I. Crim. 260.30, explained that
Footnote 4 of pattern instructions -
criminal 260.17 and 260.30 advises the trial
judge to further instruct the jury where
defendant contends he did not know the
identity of the substance. . . . Therefore,
if given as proposed by defendant, the first
sentence of pattern instruction-Crim. 260.17
would read as follows: “First, that
defendant knowingly possessed heroin and
defendant knew that what he possessed was
heroin.” N.C.P.I.—Crim. 260.17 n.4.
Id. at ___, 742 S.E.2d at 349. The Court further stated that
“[i]f given as proposed by defendant, the first sentence of
pattern instruction - Crim. 260.30 would read as follows:
‘First, that defendant knowingly transported heroin and
defendant knew what he transported was heroin.’ N.C.P.I.—Crim.
260.30 n.4.” Id. at ___, 742 S.E.2d at 349, 349 n.4. The Court
held that the trial court’s failure to give the additional
instructions in the footnotes was error. Id. at ___, 742 S.E.2d
at 350. In making its determination as to whether this error
amounted to plain error, the Coleman Court explained that
[t]he record reflects that defendant’s sole
defense to the charges of trafficking in
heroin by possession and by transportation
was that he did not know the box in his
possession contained heroin . . . [and that
the defendant’s guilty knowledge was] a
question of fact for the jury. The closing
arguments before the jury reveal that the
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most significant issue presented to the jury
was whether defendant knew that what he
possessed was heroin.
Id. After acknowledging that it is a rare case in which a
defendant on plain error review can show that an unpreserved
instruction error would merit reversal, this Court held that the
trial court’s errors amounted to plain error and awarded a new
trial even assuming arguendo that the “entire record reveals
overwhelming and uncontroverted evidence of guilt” because “the
trial court’s failure to give an additional instruction
regarding the only controverted issue at trial - guilty
knowledge - had a probable impact on the jury verdict.” Id. at
___, 742 S.E.2d at 351-52.
Here, the record shows that the trial court instructed the
jury as to the first element of each charge pursuant to N.C.P.I
Criminal 260.15, 260.17, and 260.30 but did not include any of
the footnotes, as stated above. Like the defendant in Coleman,
Defendant failed to request the additional instructions in the
footnotes that he knew what he possessed or transported was
cocaine, so we must apply plain error review. See N.C.R. App.
P. 10(a)(4); Steen, 352 N.C. at 269, 536 S.E.2d at 25-26. Also,
like the defendant in Coleman, the issue of whether Defendant
knew that what he possessed was made a determinative issue at
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trial. Defendant testified that he did not know the van he was
driving contained the bags of cocaine, he did not see the gift
bag in the van, and did not know the drugs were in the gift bag.
Defendant further testified that he only believed that he was in
possession of or transporting the ladders and painting supplies
that he saw in the back of the van. Like Coleman, “[t]his
evidence made it necessary for the trial court to recognize the
evidence as amounting to a contention that defendant did not
know the true identity of what he possessed.” ___ N.C. App at
___, 742 S.E.2d at 350.1 However, the trial court in error
failed to give the additional instructions in the footnotes of
each pattern jury instruction. We are, therefore, compelled by
our holding in Coleman to conclude that the trial court’s
failure to give the instructions contained in the footnotes was
error.
As to whether this error rises to the level of plain error,
we are again compelled by our holding in Coleman in which this
1
Even though it is not raised by either party, we note that
this Court recently distinguished Coleman in State v. Beam,
holding that the additional instruction in the footnote was not
needed because the defendant’s knowledge was not at issue. __
N.C. App. __, __, 753 S.E.2d 232, 233 (2014). Unlike Defendant
here and the defendant in Coleman, the defendant in Beam did not
testify that he was confused about the identity of something he
was in possession of; but rather, he testified that he did not
know that the passenger in the vehicle he was driving was in
possession of illegal drugs. Id.
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Court found it to constitute plain error not to give the
instructions in the footnote. Like Coleman, even though there
was “overwhelming evidence” to support Defendant’s convictions –
e.g. the arranged drug deal with the informant and Defendant’s
admissions to the police investigators at the time of his arrest
- Defendant’s whole defense at trial was that he was
transporting ladders in the van for a job and did not know
anything about the cocaine in the van, making the issue of
whether or not he knew what he was transporting or possessing
“the most significant issue [regarding his defense] presented to
the jury[.]” See Coleman, ___ N.C. App. at ___, 742 S.E.2d at
350. Contrary to the State’s argument, this Court in Coleman
completely rejected the argument that the instruction “the
Defendant knowingly [possessed or transported]” was sufficient
when the defendant raised the issue of whether he was aware of
the nature of what he was transporting or possessing.
Accordingly, based on our holding in Coleman, we reverse the
convictions against Defendant and order that he be given a new
trial.
NEW TRIAL.
Judge STROUD and Judge HUNTER, JR. concur.
Report Per Rule 30(e).
State v. Galaviz-Torres
Combined Opinion