State v. Winkler

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .

NO. COA14-442
NORTH CAROLINA COURT OF APPEALS

Filed: 18 November 2014

STATE OF NORTH CAROLINA

v. Buncombe County
No. 13 CRS 051036
JOSHUA WINKLER

Appeal by Defendant from judgment entered 7 November 2013

by Judge Bill Coward in Superior Court, Buncombe County. Heard

in the Court of Appeals 25 September 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Barry H. Bloch, for the State.

Cooley Law Office, by Craig M. Cooley, for Defendant–
Appellant.

McGEE, Chief Judge.

Joshua Winkler (“Defendant”) appeals from a judgment

entered upon a jury verdict finding him guilty of conspiring to

traffic in opium or heroin by transporting in excess of four

grams but less than fourteen grams of a mixture containing

Oxycodone, which is a Schedule II controlled substance under

N.C. Gen. Stat. § 90-90(1)(a)(14). We vacate the trial court’s
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judgment.

The evidence presented at trial tended to show that, in

January 2013, Probation and Parole Officer Melissa Whitson

(“Officer Whitson”) received information that Jamie Harris (“Mr.

Harris”), a probationer under her supervision through the

Buncombe County Drug Treatment Court, was selling Oxycodone in

exchange for rides. Officer Whitson contacted Mr. Harris on

16 January 2013 and requested that he visit her office. After

he arrived at the office, Mr. Harris was administered a drug

test, which yielded a positive result for Oxycodone. Officer

Whitson and two other officers then accompanied Mr. Harris to

83 Dix Creek Chapel Road in Asheville, North Carolina — a

residence in which Mr. Harris had been staying “some” and to

which he would soon be permanently moving — in order to search

the residence.

Upon conducting their search, the officers found drug

paraphernalia, needles, a spoon with a partially melted pill,

tourniquets, and a firearm. As Officer Whitson walked into the

living area to discuss some information with one of the other

officers at the scene, a mail carrier knocked at the door to

deliver a package. The package was addressed to “Jamie Harris,

83 Dix Creek Chapel Road, Asheville, North Carolina 28806,” and

was sent from “J. Winkler, 1219 Everglades Avenue, Clearwater,
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Florida 33764.” Mr. Harris “seemed nervous” when the package

arrived. At the officers’ request, Mr. Harris consented to open

the package in front of them. Inside the package was an

unlabeled pill bottle that contained sixty pills and a tissue

“stuffed down” into the bottle. Mr. Harris was then arrested

and charged with trafficking in opium. The pills seized from

Mr. Harris’s residence were later tested by a forensic scientist

with the North Carolina State Crime Laboratory, who determined

that the pills contained Oxycodone, a Schedule II opium

derivative.

While Mr. Harris was in jail, Officer Tammy Bryson

(“Officer Bryson”) and another officer with the Asheville Police

Department began monitoring Mr. Harris’s telephone

conversations. Officer Bryson was assigned to the Buncombe

County Anti-Crime Taskforce as an undercover drug agent.

Officer Bryson primarily investigated “drug diversion” cases —

cases in which legal drugs, e.g., prescription medications, were

used illegally or were used in a manner in which the medications

were not prescribed. In a call recorded the day after Mr.

Harris’s arrest, the officers “heard the name ‘Josh’ come up”

and heard that he was “in town,” which prompted them to start

investigating whether “Josh” was the “J. Winkler” who had sent

the package of unlabeled pills to Mr. Harris. The officers
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learned that Defendant — Joshua Winkler — had a North Carolina

driver’s license with a Farmville, North Carolina address, as

well as a Florida driver’s license. After conducting

surveillance of Mr. Harris’s residence for several days, Officer

Bryson observed a vehicle parked at Mr. Harris’s residence that

officers determined was registered to Defendant at his

Farmville, North Carolina address. Defendant was seen leaving

Mr. Harris’s residence on 28 January 2013, and an officer

executed a stop of Defendant’s vehicle.

Officer Bryson and another officer arrived at the scene and

asked Defendant to speak with them about the package he had sent

to Mr. Harris. The officers escorted Defendant to their

vehicle, where Defendant joined Officer Bryson in the front

seat. After Officer Bryson advised Defendant of his rights,

Defendant executed a rights’ advisement form and consented to

speak with Officer Bryson and the other officer.

Officer Bryson testified that Defendant admitted the

Oxycodone pills he sent to Mr. Harris through the mail belonged

to Defendant, and that Defendant received and filled his

prescription for the pills in Florida. According to Officer

Bryson, Defendant said he lived in Farmville, North Carolina,

but visited a doctor in Miami, Florida, to get his prescription

for Oxycodone, because Defendant’s local North Carolina
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physician was unwilling to prescribe Defendant Oxycodone due to

his probationary status that was said to have resulted from an

arrest for “doctor shopping.”1 Defendant told Officer Bryson

that Mr. Harris’s son was his grandson, and said that he was

returning to North Carolina from Florida to visit Mr. Harris’s

son and other grandchildren who lived in the area. Defendant

also said he “did not want to travel with his pills on him,” so

he sent his pills through the mail to Mr. Harris’s address,

since Defendant was going to visit Mr. Harris’s residence to see

his grandson.

Officer Bryson testified Defendant told her “he knew that

Mr. Harris did pills and sold pills.” Officer Bryson further

testified that Defendant was unable to give her an answer as to

why he chose to send his Oxycodone pills to Mr. Harris “knowing

that [Mr. Harris] was a drug dealer and . . . used drugs and why

[Defendant] sent them to [Mr. Harris] in a plain pill bottle

with no label and tissue stuffed in it.” Officer Bryson also

testified that Oxycodone pills were regularly the subject of

drug diversion cases, and that perpetrators of drug diversion

offenses often used unlabeled pill bottles to deliver or
1
Officer Bryson described “doctor shopping” as an offense in
which someone obtains or seeks a prescription from a health care
practitioner while being supplied with another prescription by
another practitioner without disclosing the fact of the former
prescription to the practitioner from whom the subsequent
prescription is sought.
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transport the pills and wedged tissues into the bottles in order

to keep the pills from rattling around inside the bottles.

Defendant also told Officer Bryson he thought he would arrive at

Mr. Harris’s residence before the pills did. Officer Bryson

then placed Defendant under arrest.

Defendant was indicted for conspiring with Mr. Harris to

traffic in opium or heroin by transporting in excess of four

grams but less than fourteen grams of a mixture containing

Oxycodone. At trial, Defendant presented no evidence, and moved

to dismiss the charge at the close of the State’s evidence and

at the close of all of the evidence. Defendant’s motions were

denied. Defendant was found guilty by a jury of the charged

offense, and was sentenced to a term of seventy to ninety-

three months imprisonment. Defendant appeals.

Defendant first contends the trial court erred by denying

his motions to dismiss because the State presented insufficient

evidence that he conspired or formed an agreement with Mr.

Harris to traffic in Oxycodone. We agree.

“Upon defendant’s motion for dismissal, the question for

the Court is whether 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. If so, the motion is properly denied.” State
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v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).

“Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” State

v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).

“[A]ll of the evidence, whether competent or incompetent, must

be considered in the light most favorable to the [S]tate, and

the [S]tate is entitled to every reasonable inference

therefrom.” Id. at 78, 265 S.E.2d at 169.

“A criminal conspiracy is an agreement between two or more

persons to do an unlawful act or to do a lawful act in an

unlawful way or by unlawful means.” State v. Bindyke, 288 N.C.

608, 615, 220 S.E.2d 521, 526 (1975). “As soon as the union of

wills for the unlawful purpose is perfected, the offense of

conspiracy is completed.” Id. at 616, 220 S.E.2d at 526. “To

constitute a conspiracy it is not necessary that the parties

should have come together and agreed in express terms to unite

for a common object.” Id. at 615, 220 S.E.2d at 526. “Direct

proof of the charge is not essential, for such is rarely

obtainable. It may be, and generally is, established by a

number of indefinite acts, each of which, standing alone, might

have little weight, but, taken collectively, they point

unerringly to the existence of a conspiracy.” State v.

Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).
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Nonetheless, “[w]hile a conspiracy may be established from

circumstantial evidence, there must be such evidence to prove

the agreement directly or such a state of facts that an

agreement may be legally inferred.” State v. Massey, 76 N.C.

App. 660, 662, 334 S.E.2d 71, 72 (1985); see State v.

Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703

(“[E]vidence tending to show a mutual, implied understanding

will suffice to withstand [a] defendant’s motion to dismiss.”),

disc. review denied, 319 N.C. 677, 356 S.E.2d 785 (1987).

“Conspiracies cannot be established by a mere suspicion, nor

does a mere relationship between the parties or association show

a conspiracy. If the conspiracy is to be proved by inferences

drawn from the evidence, such evidence must point unerringly to

the existence of a conspiracy.” Massey, 76 N.C. App. at 662,

334 S.E.2d at 72 (citation omitted). Thus, “[t]o hold a

defendant liable for the substantive crime of conspiracy, the

State must prove an agreement to perform every element of the

crime.” State v. Suggs, 117 N.C. App. 654, 661, 453 S.E.2d 211,

215 (1995). Furthermore, “[m]ere passive cognizance of the

crime or acquiescence in the conduct of others will not suffice

to establish a conspiracy. The conspirator must share the

purpose of committing [the] felony.” State v. Merrill, 138 N.C.

App. 215, 221, 530 S.E.2d 608, 612 (2000) (second alteration in
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original) (internal quotation marks omitted).

N.C. Gen. Stat. § 90-95(h)(4)(a) provides, in relevant

part, that any person who “delivers, transports, or possesses

four grams or more of opium or opiate, or any salt, compound,

derivative, or preparation of opium or opiate[,] . . . or any

mixture containing such substance, shall be guilty of a felony

which felony shall be known as ‘trafficking in opium or

heroin,’” N.C. Gen. Stat. § 90-95(h)(4)(a) (2013), and punished

as a Class F felon “if the quantity of such controlled substance

or mixture involved . . . [i]s four grams or more, but less than

14 grams.” Id.

Defendant argues that the evidence was insufficient to

prove that he and Mr. Harris formed an agreement to traffic in

Oxycodone. While we recognize that a conspiracy may be

established by circumstantial evidence and that direct proof of

an agreement is not essential to sustaining a conviction of

conspiring to commit an offense, even when viewed in the light

most favorable to the State, we are not persuaded that the

evidence in the present case “point[s] unerringly to the

existence of a conspiracy.” See Whiteside, 204 N.C. at 712,

169 S.E. at 712. Here, the parties do not dispute that there is

no direct evidence that Defendant conspired with Mr. Harris to

traffic in Oxycodone. Rather, the evidence shows the following:
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that Defendant admitted to Officer Bryson that he mailed sixty

Oxycodone pills to Mr. Harris; that Defendant sent the pills in

an unlabeled pill bottle with a tissue “stuffed down” into the

bottle; that Defendant “knew that Mr. Harris did pills and sold

pills;” that Mr. Harris’s probation officer, Officer Whitson,

received a tip that Mr. Harris was currently trafficking in

Oxycodone; and that, when the mail carrier delivered the package

sent by Defendant to Mr. Harris’s residence at the precise time

officers were conducting a warrantless search of Mr. Harris’s

residence, Mr. Harris “seemed nervous.”

Our appellate courts have long recognized that

“[c]ircumstantial evidence may be of two kinds, consisting

either of a number of consecutive links, each depending upon the

other; or a number of independent circumstances all pointing in

the same direction.” State v. Austin, 129 N.C. 534, 535,

40 S.E. 4, 5 (1901). “In the former case it is said that each

link must be complete in itself, and that the resulting chain

cannot be stronger than its weakest link.” Id. “In the latter

case the individual circumstances are compared to the strands in

a rope, where no one of them may be sufficient in itself, but

all together may be strong enough to prove the guilt of the

defendant beyond a reasonable doubt.” Id. While it appears

that a reasonable inference could be drawn from the evidence in
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the present case that Defendant’s actions were violative of N.C.

Gen. Stat. § 90-95(h)(4)(a), whether viewed as links in a chain

or strands in a rope, we cannot conclude that a jury could

reasonably infer from this same evidence that Defendant and Mr.

Harris formed an agreement or conspired to traffic in Oxycodone.

Although the evidence demonstrates that Defendant and Mr. Harris

had a relationship, “a mere relationship between the parties or

association [does not] show a conspiracy.” See Massey, 76 N.C.

App. at 662, 334 S.E.2d at 72. Again, even “cognizance of the

crime or acquiescence in the conduct” of another “will not

suffice to establish a conspiracy.” Merrill, 138 N.C. App. at

221, 530 S.E.2d at 612. Thus, while there may be sufficient

evidence of Mr. Harris’s knowledge of Defendant’s actions, we

cannot say that there was sufficient evidence that Mr. Harris

“share[d] the purpose of committing [the] felony.” See id.

(second alteration in original) (internal quotation marks

omitted). Without more, we cannot conclude that the State’s

evidence directly or indirectly established a union of wills

between Defendant and Mr. Harris to conspire to traffic in

Oxycodone. Accordingly, we vacate the trial court’s judgment

entered upon the jury’s verdict finding Defendant guilty of

conspiring to traffic in Oxycodone by transportation. Our

disposition on this issue renders it unnecessary to address
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Defendant’s remaining issue on appeal and we decline to do so.

Vacated.

Judges GEER and STROUD concur.

Report per Rule 30(e).