{ "id": 9081174, "name": "STATE OF NORTH CAROLINA v. MARIO MARTINEZ", "name_abbreviation": "State v. Martinez", "decision_date": "2002-05-21", "docket_number": "No. COA01-876", "first_page": "364", "last_page": "373", "citations": [ { "type": "official", "cite": "150 N.C. App. 364" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "354 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169805 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0262-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "365 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520750 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0123-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "cite": "550 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "143 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435089 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0445-01" ] }, { "cite": "470 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "73", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917298 ], "year": 1996, "pin_cites": [ { "page": "372", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0369-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "230 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "194", "parenthetical": "quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551091 ], "year": 1976, "pin_cites": [ { "page": "570", "parenthetical": "quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0569-01" ] }, { "cite": "79 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "476", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "239 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626407 ], "year": 1954, "pin_cites": [ { "page": "249", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0245-01" ] }, { "cite": "256 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "714", "parenthetical": "emphasis supplied" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573645 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0674-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(h)(l)" } ], "opinion_index": 0 }, { "cite": "516 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143287 ], "year": 1999, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0130-01" ] }, { "cite": "544 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "22", "parenthetical": "quoting State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886 (1999)" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442648 ], "year": 2001, "pin_cites": [ { "page": "621", "parenthetical": "quoting State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0614-01" ] }, { "cite": "456 U.S. 798", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191830 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "809" }, { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/us/456/0798-01" ] }, { "cite": "356 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "576", "parenthetical": "citing United States v. Ross, 456 U.S. 798, 809, 72 L. Ed. 2d 572, 584 (1982)" } ], "opinion_index": 0 }, { "cite": "319 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742205 ], "year": 1987, "pin_cites": [ { "page": "638", "parenthetical": "citing United States v. Ross, 456 U.S. 798, 809, 72 L. Ed. 2d 572, 584 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0634-01" ] }, { "cite": "237 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "304" }, { "page": "304" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547176 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "88" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0085-01" ] }, { "cite": "411 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "195", "parenthetical": "citing State v. Wooten, 34 N.C. App. 85, 88, 237 S.E.2d 301, 304 (1977)" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523891 ], "year": 1991, "pin_cites": [ { "page": "728", "parenthetical": "citing State v. Wooten, 34 N.C. App. 85, 88, 237 S.E.2d 301, 304 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0724-01" ] }, { "cite": "268 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "300 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564413 ], "year": 1980, "pin_cites": [ { "page": "683-84" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0678-01" ] }, { "cite": "93 L. Ed. 1879", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "opinion_index": 0 }, { "cite": "338 U.S. 160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3943769 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/us/338/0160-01" ] }, { "cite": "423 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177768 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/423/0411-01" ] }, { "cite": "261 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "193", "parenthetical": "citing G.S. \u00a7 15A-401(b)(2)a; United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598 (1976)" } ], "opinion_index": 0 }, { "cite": "299 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573221 ], "year": 1980, "pin_cites": [ { "page": "34", "parenthetical": "citing G.S. \u00a7 15A-401(b)(2)a; United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0029-01" ] }, { "cite": "446 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "585" } ], "opinion_index": 0 }, { "cite": "337 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550000 ], "year": 1994, "pin_cites": [ { "page": "140-41" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0132-01" ] } ], "analysis": { "cardinality": 779, "char_count": 19944, "ocr_confidence": 0.749, "pagerank": { "raw": 7.114166233061426e-08, "percentile": 0.4272951820743217 }, "sha256": "1870094ef24b36b0243d0f61dd83b98dbc16b490f8a7fba22bdba3de41e5eed0", "simhash": "1:0a7b70386a6e944d", "word_count": 3155 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MARIO MARTINEZ" ], "opinions": [ { "text": "TYSON, Judge.\nMario Martinez (\u201cdefendant\u201d) appeals from the trial court\u2019s entry of judgment after a jury returned a verdict finding defendant guilty of trafficking in marijuana by transportation of more than ten pounds but less than fifty pounds, trafficking in marijuana by possession of more than ten pounds but less than fifty pounds, and possession with intent to sell and deliver marijuana. We find no error.\nI. Facts\nThe evidence at trial tended to show that officers of the New Hanover County Sheriffs Department (\u201cofficers\u201d) served a valid search warrant based upon a known informant\u2019s tip on Daniel Goff (\u201cGoff\u2019) at his residence on 21 August 2000 at approximately 8:00 p.m. The search revealed illegal drugs, contraband, and large quantities of cash. Goff, a college student in his early twenties, communicated a statement to Officer Sidney Causey (\u201cOfficer Causey\u201d) that normally he purchased his marijuana from two Hispanic males. Officer Causey testified that Goff was \u201ccrying and I\u2019m sure he was scared and he provided us with this information, which I believed was true.\u201d Goff stated that the two Mexican males were currently en route to deliver a twenty-five pound shipment of marijuana to his house. Goff informed Officer Causey that he had spoken to them about an hour earlier, and that they would be arriving in a small white four-door automobile, which would \u201ccome right to my door.\u201d\nThe officers established surveillance in the immediate area. While the officers were waiting in Goff\u2019s house, Goff received a cellular telephone call from two men who were driving to his house. Officer Causey overheard the conversation and verified that two Hispanic men would be arriving at Goff\u2019s residence in approximately twenty minutes.\nApproximately twenty minutes later, a white four-door Neon automobile, occupied by two Hispanic males, turned into Goff\u2019s driveway, and parked next to Goff\u2019s front door. The \u201ctake down\u201d signal was given, and both men were seized and removed from the vehicle. The officers searched the trunk and found large plastic bags that smelled like marijuana. Both men were arrested.\nMario Martinez (\u201cdefendant\u201d) was searched and $1,780.00 cash was found in his pocket. The driver, Carlos Zavala (\u201cZavala\u201d), was also searched and $30.00 cash was found on his person.\nOn 11 February 2001, defendant filed a motion to suppress evidence. A hearing was conducted, and the trial court denied the motion. Defendant was tried on 13 February 2001 and did not offer any evidence. Defendant moved to dismiss at the close of the State\u2019s evidence. The trial court denied his motion. The jury returned a ver-diet of guilty against defendant for trafficking in marijuana by transportation of more than ten pounds but less than fifty pounds, trafficking in marijuana by possession of more than ten pounds but less than fifty pounds, and possession with intent to sell and deliver marijuana.\nDefendant was sentenced to twenty-five months minimum and forty months maximum for trafficking in marijuana by transportation, twenty-five months minimum and thirty months maximum for trafficking in marijuana by possession, and six months minimum and eight months maximum for possession with the intent to sell and deliver marijuana, all in the presumptive range and all to run consecutively. Defendant appeals.\nII. Issues\nDefendant assigns as error the trial court\u2019s (1) denying defendant\u2019s motion to suppress, (2) admitting accomplice testimony into evidence, (3) denying defendant\u2019s motion to dismiss for insufficiency of the evidence, (4) jury instructions, and (5) giving multiple verdict sheets to the jury.\nIII. Motion to Suppress\nDefendant argues that he was subjected to a warrantless search that violated the Fourth Amendment prohibition against unreasonable searches and seizures. This argument is without merit. Our review of a motion to dismiss is de novo. State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994).\n\u201cPolice officers may arrest without a warrant any person who they have probable cause to believe has committed a felony.\u201d State v. Hunter, 299 N.C. 29, 34, 261 S.E.2d 189, 193 (1980) (citing G.S. \u00a7 15A-401(b)(2)a; United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598 (1976)). \u201cA warrantless arrest is lawful if based upon probable cause, Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879 (1949); State v. Phillips, 300 N.C. 678, 683-84, 268 S.E.2d 452, 456 (1980), and permitted by state law.\u201d State v. Mills, 104 N.C. App. 724, 728, 411 S.E.2d 193, 195 (1991) (citing State v. Wooten, 34 N.C. App. 85, 88, 237 S.E.2d 301, 304 (1977)). \u201cA search of a motor vehicle which is on a public roadway or in a public vehicular area is not in violation of the fourth amendment [sic] if it is based on probable cause, even though a warrant has not been obtained.\u201d State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d 573, 576 (1987) (citing United States v. Ross, 456 U.S. 798, 809, 72 L. Ed. 2d 572, 584 (1982)).\n\u201c \u2018In utilizing an informant\u2019s tip, probable cause is determined using a \u2018totality-of-the circumstances\u2019 analysis which \u2018permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant\u2019s tip.\u2019 \u201d State v. Holmes, 142 N.C. App. 614, 621, 544 S.E.2d 18, 22 (2001) (quoting State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886 (1999)). \u201cOnce [officers] corroborated the description of the defendant and his presence at the named location, [they] had reasonable grounds to believe a felony was being committed in his presence which in turn created probable cause to arrest and search defendant.\u201d Wooten, 34 N.C. App. at 88, 237 S.E.2d at 304.\nTransporting twenty-five pounds of marijuana is a felony. See N.C. Gen. Stat. \u00a7 90-95(h)(l) (2001). Although Goff was not a known informant, the officers independently verified the information that he provided to them. Based on Goff\u2019s information and the officers\u2019 independent verification of that information, the officers had probable cause to believe that defendant and Zavala were committing a felony in their presence.\nGoff informed the officers that his suppliers, two Hispanic males, were currently driving to his house in a small white four-door automobile to deliver approximately twenty-five pounds of marijuana. Goff also told Officer Causey that the two Hispanics would park their car right in front of his front door.\nThe officers independently verified and corroborated Goff\u2019s information. Officer Causey overheard a cellular telephone conversation between Goff and the two Hispanic men. Officer Causey verified that they would be arriving at Goff\u2019s house in approximately twenty minutes when he overheard Goffs telephone conversation with Zavala and defendant, which corroborated the time frame Goff originally communicated to Officer Causey. Approximately twenty minutes later, the officers observed a small white four-door automobile, containing two Hispanic males, turn into Goff\u2019s drive-way and park next to his front door. At that moment, the officers had corroborated the (1) description of the transporting automobile, (2) a description of the two occupants, (3) the proximity of the automobile\u2019s position to the front door, and (4) the arrival time of the automobile. All of Goffs information was proven reliable up to that point. The officers had probable cause to believe that a felony was being committed in their presence.\nThe trial court properly denied defendant\u2019s motion to dismiss. This assignment of error is overruled.\nIV. Accomplice Testimony\nDefendant contends that the trial court erred by admitting the testimony of defendant\u2019s accomplice Zavala. Defendant argues that this testimony constituted the \u201cuncorroborated testimony of an accomplice,\u201d and that Zavala\u2019s testimony violated hearsay rules. Defendant in his brief has failed to show this Court what hearsay rule the trial court violated. That portion of this assignment of error is dismissed.\nIn defendant\u2019s brief he cites State v. Keller, 297 N.C. 674, 256 S.E.2d 710 (1979), for the proposition that \u201cuncorroborated testimony of an accomplice is to be received with caution, and can be accepted only if it establishes every element of the offense charged.\u201d (Emphasis supplied). This assertion misstates the law.\n\u201cIt is well-established that the uncorroborated testimony of an accomplice will sustain a conviction so long as the testimony tends to establish every element of the offense charged.\u201d Keller, 297 N.C. at 679, 256 S.E.2d at 714 (emphasis supplied) (citations omitted).\nKeller further states that the fact that an accomplice \u201cmay have lied earlier bears only on the credibility, not the sufficiency, of his testimony. The credibility of witnesses is a matter for the jury rather than the court. Contradictions and discrepancies in the state\u2019s [sic] evidence do not warrant dismissal of the case.\u201d Id. (citations omitted).\n\u201cIt is well settled in this jurisdiction that although the jury should receive and act upon such testimony with caution, the unsupported testimony of an accomplice is sufficient to sustain a conviction if it satisfies the jury beyond a reasonable doubt of the guilt of the accused.\u201d State v. Tilley, 239 N.C. 245, 249, 79 S.E.2d 473, 476, (1954) (citations omitted). Defendant had ample opportunity to cross-examine Zavala and challenge his credibility before the jury. The trial court properly admitted the testimony of Zavala. This assignment of error is overruled.\nV. Sufficiency of the Evidence\nDefendant contends that there was insufficient evidence to support a guilty verdict, and the trial court should have dismissed the case at the close of the State\u2019s evidence. Defendant argues that the State\u2019s evidence only shows defendant\u2019s mere presence as a passenger in an automobile where twenty-five pounds of marijuana was discovered in the trunk. We disagree.\n\u201c \u2018An accused\u2019s possession of narcotics may be actual or constructive. He has possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use.\u2019 \u201d State v. Weems, 31 N.C. App. 569, 570, 230 S.E.2d 193, 194 (1976) (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)).\n\u201cProving constructive possession where defendant had nonexclusive possession of the place in which the drugs were found requires a showing by the State of other incriminating circumstances which would permit an inference of constructive possession.\u201d State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996) (citations omitted); State v. Matias, 143 N.C. App. 445, 550 S.E.2d 1, aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001). \u201cEvidence of constructive possession is sufficient to support a conviction if it would allow a reasonable mind to conclude that defendant had the intent and capability to exercise control and dominion over the controlled substance.\u201d Matias, 143 N.C. App. at 448, 550 S.E.2d at 3 (citing State v. Peek, 89 N.C. App. 123, 365 S.E.2d 320 (1988)).\nDefendant did not have exclusive control of the automobile. The drugs were discovered in the trunk, not the passenger area of the automobile where defendant sat. After thoroughly reviewing the entire record, we conclude that there were sufficient \u201cother incriminating circumstances\u201d for the jury to reasonably infer that defendant had the power and intent to control the twenty-five pounds of marijuana found in the trunk of the car in which he was riding. Those \u201cother incriminating circumstances\u201d include: (1) this was a planned drug transaction, (2) Goff testified that he had pre-arranged to have twenty-five pounds of marijuana delivered to his house, (3) Zavala testified that he had been paid by defendant to be his courier to and from Goff\u2019s house, (4) Goff had purchased drugs from Zavala and defendant on five or six previous occasions, (5) defendant had delivered drugs to Goff\u2019s house previously, (6) the officers independently corroborated and verified everything that Goff had reported to them about the drug transaction in process, and (7) defendant was found with $1,780.00 in cash on his person at the scene. We hold that these are sufficient other incriminating circumstances to support a conviction based on constructive possession when defendant was not in exclusive control of the vehicle where the drugs were found. This assignment of error is overruled.\nVI. Jury Instructions\nA. Trial Court\u2019s Instruction\nDefendant contends that the trial court committed plain error instructing the jury about the law of knowingly possessing marijuana. Defendant argues that no evidence existed to show that he had knowledge of the marijuana seized in the automobile, and that \u201c[t]he instruction invited the jury to speculate as to [defendant\u2019s] guilt and to return an erroneous verdict.\u201d\nDefendant did not object to the trial court\u2019s instruction during trial. Defendant must show not only that the instruction was error, but that the instruction probably impacted the jury\u2019s finding defendant guilty. See e.g., State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).\nDefendant\u2019s sole contention is that no evidence of defendant\u2019s knowledge of the marijuana in the automobile existed at trial. We have held that the State presented sufficient evidence to show that defendant had the intent and capability to exercise control and dominion over the marijuana based on constructive possession. Defendant has failed to show that the instruction was erroneous. This assignment of error is overruled.\nB. Requested Instruction\nDefendant contends that there was no basis to convict defendant of knowingly possessing marijuana, \u201cusing either actual or constructive possession... because the evidence only shows the [defendant\u2019s] mere presence [in the automobile].\u201d Defendant concludes therefore that \u201cthe only other basis to uphold [defendant\u2019s] convictions is that [defendant] was acting in concert.\u201d Defendant requested the trial court to instruct the jury that the defendant\u2019s mere presence in the automobile was insufficient to show defendant acted in concert. The trial court refused, but gave the following instruction on the law of constructive possession:\nthe defendant\u2019s physical proximity, if any, to the substance does not by itself permit an inference that the defendant was aware of its presence or had the power or intent to control its disposition or use . . . such an inference may be drawn only from this and other circumstances which you find from the evidence beyond a reasonable doubt.\nThe substance of defendant\u2019s requested instruction was contained in this instruction. Since we have held that there was evidence to support the conviction based on constructive possession, this assignment of error is overruled.\nVII. Multiple Verdict, Sheets\nDefendant assigns error to the trial court\u2019s giving multiple verdict sheets to the jury. Defendant has failed to cite any authority in support of his argument. Rule 28(b)(5) of the N.C. Rules of Appellate Procedure states that \u201cthe body of the argument shall contain citations of authority upon which the appellant relies.. . . Assignments of error ... in support of which no . . . authority is cited, will be taken as abandoned.\u201d N.C.R. App. P. 28(b)(5) (2001). This assignment of error is abandoned. N.C.R. App. P. 28(b)(3) (2001). See also Byrne v. Bordeaux, 85 N.C. App. 262, 354 S.E.2d 277 (1987).\nAfter carefully reviewing the entire record, we hold that defendant received a trial by a jury of his peers before an able judge free from errors he assigned.\nNo error.\nJudges MARTIN and THOMAS concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy L. Yonowitz, for the State.", "William H. Dowdy, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARIO MARTINEZ\nNo. COA01-876\n(Filed 21 May 2002)\n1. Search and Seizure\u2014 trafficking in marijuana \u2014 possession with intent to sell and deliver marijuana \u2014 motion to suppress-warrantless search\nThe trial court did not err in a trafficking in marijuana and possession with intent to sell and deliver marijuana case by denying defendant\u2019s motion to suppress even though defendant contends he was subjected to a warrantless search in violation of his Fourth Amendment rights, because the officers had probable cause to believe that defendant and his accomplice were committing a felony in their presence based on an informant\u2019s information and the officers\u2019 independent verification of that information.\n2. Evidence\u2014 accomplice testimony \u2014 uncorroborated\nThe trial court did not err in a trafficking in marijuana and possession with intent to sell and deliver marijuana case by admitting the uncorroborated testimony of defendant\u2019s accomplice, because: (1) the uncorroborated testimony of an accomplice will sustain a conviction so long as the testimony tends to establish every element of the offense charged; and (2) defendant had ample opportunity to cross-examine his accomplice and challenge his credibility before the jury.\n3. Drugs\u2014 trafficking in marijuana \u2014 possession with intent to sell and deliver marijuana \u2014 motion to dismiss \u2014 constructive possession\nThe trial court did not err in a trafficking in marijuana and possession with intent to sell and deliver marijuana case by failing to dismiss the case at the close of the State\u2019s evidence based on alleged insufficient evidence of constructive possession because there was sufficient evidence of other incriminating circumstances for the jury to reasonably infer that defendant had the power and intent to control the twenty-five pounds of marijuana found in the trunk of the car in which he was riding as a passenger, including the facts that: (1) this was a planned drug transaction; (2) an informant testified that he had pre-arranged to have twenty-five pounds of marijuana delivered to his house; (3) defendant\u2019s accomplice testified that he had been paid by defendant to be his courier to and from the informant\u2019s house; (4) the informant had purchased drugs from the accomplice and defendant on five or six previous occasions; (5) defendant had delivered drugs to the informant\u2019s house previously; (6) the officers independently corroborated and verified everything that the informant had reported to them about the drug transaction; and (7) defendant was found with $1,780 in cash on his person at the scene.\n4. Drugs\u2014 jury instruction \u2014 knowingly possessing marijuana\nThe trial court did not commit plain error in a trafficking in marijuana and possession with intent to sell and deliver marijuana case by instructing the jury about the law of knowingly possessing marijuana even though defendant contends there is no evidence of defendant\u2019s knowledge of the marijuana in the automobile, because the State presented sufficient evidence to show that defendant had the intent and capability to exercise control and dominion over the marijuana based on constructive possession.\n5. Drugs\u2014 requested instruction \u2014 mere presence not acting in concert\nAlthough the trial court refused to give defendant\u2019s requested instruction that defendant\u2019s mere presence in the automobile was insufficient to show defendant acted in concert in a trafficking in marijuana and possession with intent to sell and deliver marijuana case, the substance of defendant\u2019s requested instruction was contained in the trial court\u2019s instruction on the law of constructive possession.\n6. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority\nAlthough defendant contends the trial court erred in a trafficking in marijuana and possession with intent to sell and deliver marijuana case by giving multiple verdict sheets to the jury, this assignment of error is abandoned because defendant has failed to cite any authority in support of his argument as required by N.C. R. App. P. 28(b)(5).\nAppeal by defendant from judgments entered 15 February 2001 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 25 April 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Amy L. Yonowitz, for the State.\nWilliam H. Dowdy, for defendant-appellant." }, "file_name": "0364-01", "first_page_order": 394, "last_page_order": 403 }