{ "id": 8999343, "name": "STATE OF NORTH CAROLINA v. ANAEL SALINAS VALLADARES", "name_abbreviation": "State v. Valladares", "decision_date": "2004-08-03", "docket_number": "No. COA03-879", "first_page": "598", "last_page": "609", "citations": [ { "type": "official", "cite": "165 N.C. App. 598" } ], "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": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "pin_cites": [ { "page": "(h)(3)(a)" }, { "page": "(a)(3)" }, { "page": "(h)(3)(a)" }, { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "297 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1982, "pin_cites": [ { "page": "601" }, { "page": "601" }, { "page": "602", "parenthetical": "citation omitted" }, { "page": "602" } ], "opinion_index": 0 }, { "cite": "307 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561423 ], "year": 1982, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0253-01" ] }, { "cite": "191 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548914 ], "year": 1972, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0101-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "332 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "86" } ], "opinion_index": 0 }, { "cite": "313 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721250, 4726152, 4720174, 4723376, 4721109 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0608-01", "/nc/313/0608-04", "/nc/313/0608-03", "/nc/313/0608-02", "/nc/313/0608-05" ] }, { "cite": "325 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "520" }, { "page": "520" }, { "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" }, { "page": "520-21" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521862 ], "year": 1985, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0083-01" ] }, { "cite": "478 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "345 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54151 ], "year": 1996, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0170-01" ] }, { "cite": "364 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0 }, { "cite": "321 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568804 ], "year": 1988, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0541-01" ] }, { "cite": "376 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1989, "pin_cites": [ { "page": "751" }, { "page": "752", "parenthetical": "citations omitted" }, { "page": "749" }, { "page": "748" } ], "opinion_index": 0 }, { "cite": "324 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486024 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "201" }, { "page": "198" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0190-01" ] }, { "cite": "191 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8577000, 8576941, 8576974, 8577013, 8576957 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0761-04", "/nc/281/0761-01", "/nc/281/0761-03", "/nc/281/0761-05", "/nc/281/0761-02" ] }, { "cite": "185 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "424-25" }, { "page": "425" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553051 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/13/0323-01" ] }, { "cite": "404 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "197", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519288 ], "year": 1991, "pin_cites": [ { "page": "9", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0001-01" ] } ], "analysis": { "cardinality": 973, "char_count": 25178, "ocr_confidence": 0.737, "pagerank": { "raw": 4.987325213579063e-08, "percentile": 0.3130307983206743 }, "sha256": "a2b8d8b4009c916c711928c1c0e0fbb6ac2ca7996954812c09340a26682bf38c", "simhash": "1:875a4060fd6b205e", "word_count": 4140 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and LEVINSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANAEL SALINAS VALLADARES" ], "opinions": [ { "text": "McCullough, judge.\nDefendant Anael Salinas Valladares was arrested and charged with conspiracy to traffic in cocaine and trafficking in cocaine by possession. The State\u2019s evidence tended to show that defendant and Joshua Lee Gerrehgy (Gerrehgy) had worked in construction for various employers since 1996. Over time, the two became friends.\nGerrehgy, defendant, defendant\u2019s brother, and another friend took a three-day vacation to Ocean City, Maryland, over the Memorial Day weekend in 1998. Defendant arranged for the purchase of a couple of grams of cocaine, and the four men contributed funds to cover the cost. It was the first time Gerrehgy had used cocaine.\nAfter that vacation, Gerrehgy began using cocaine while visiting defendant on the weekend. After getting an alcohol buzz, defendant would call a friend who would sell him a gram or two of cocaine. Then Gerrehgy, defendant, and other friends would pay for the drugs. The group would take the cocaine to a club and use it in the bathroom.\nGerrehgy quit using drugs in August of 1999 after an incident in which he got high, totaled his car, and lost his job. However, Gerrehgy began to use again in 2000 after going to defendant\u2019s house. The group drank and sent one of defendant\u2019s roommates out to buy half an ounce of cocaine. The cocaine was fronted which means that the group got the drugs immediately and paid later.\nGerrehgy testified that defendant had a few sources, but he got most of his drugs from Miguel Colon. Gerrehgy began using every Friday night, and he started selling cocaine to help pay for his habit.\nTwo weeks before the arrest, defendant told Gerrehgy that he wanted to sell cocaine to make money. Gerrehgy agreed to give defendant some customers, and on the day before the arrest, Gerrehgy met a man who wanted to buy some cocaine. Gerrehgy arranged for defendant to meet the man, and defendant delivered a half gram to him later that day. The next day, the same man asked for more cocaine.\nBilly Wade also called Gerrehgy looking for an ounce. Gerrehgy and defendant put their money together and made arrangements to pick up an ounce and deliver it to Wade\u2019s apartment. Originally, Gerrehgy gave defendant $600 to make the purchase; defendant contributed $200.\nOn 7 June 2002, Gerrehgy and defendant went to Colon\u2019s trailer, and Gerrehgy waited in the living room while defendant went in the back room with Colon to make this first deal. While Gerrehgy was waiting, he received a call from Wade requesting another ounce. Gerrehgy did not have enough money to purchase another ounce, so defendant loaned him another $200, and Colon fronted the rest of the money for two hours while the men made the deal. Defendant and Gerrehgy paid a total of $1,700 for two and one-quarter (2!4) ounces. Two ounces were for Wade, and one-quarter of an ounce was for defendant\u2019s deal with the man to whom he had sold drugs the day before. Gerrehgy paid $600, and defendant contributed $400. The men also agreed to pay the remaining $700 to Colon later.\nGerrehgy got a message from Bear telling Gerrehgy to deliver Wade\u2019s two ounces to Bear at the Burger King. Gerrehgy had dealt with Bear in the past and trusted him. In fact, Bear was a confidential informant who was working undercover.\nGerrehgy and defendant parked near the dumpster at Burger King to avoid being seen by too many people. Bear got into the vehicle, looked at the cocaine, and said that he would return with the money. When Bear walked away, three or four police cars pulled up and blocked Gerrehgy\u2019s car. The police arrested Gerrehgy and defendant.\nWake County ABC agent, Brad Pearson, testified that his informant, Bear, contacted Gerrehgy to make the deal on 7 June 2002. Bear told Pearson that he thought he could purchase two ounces from Gerrehgy, so he called Gerrehgy back and made arrangements to buy the second ounce. Pearson heard Gerrehgy tell Bear that the cocaine would be fronted and that the deal would have to be done quickly.\nPearson contacted agents, Wesley Nipper and Louis Knuckles, and made preparations for the takedown. The plan involved having Bear confirm that Gerrehgy had the cocaine. Then Bear would leave the car, remove his hat, and rub his head as a signal to arrest the suspects.\nNipper was parked about 50 yards from the Burger King and observed Gerrehgy pull into the parking lot. The agents watched as Bear approached Gerrehgy\u2019s vehicle. A few minutes later, Knuckles saw Bear give the takedown signal, and he radioed for the others to move in. As defendant and Gerrehgy were taken into custody, Knuckles and Nipper recalled seeing a clear plastic bag containing a white, rocky substance in the backseat of Gerrehgy\u2019s car. The bag was located near defendant\u2019s leg. Later, it was taken into evidence and determined to be cocaine.\nPearson took defendant into custody and read him his rights. Defendant told him that he spoke English and agreed to talk. Defendant admitted that he had loaned Gerrehgy $400 for the cocaine and expected to get some money back. Defendant also agreed to think about participating in the substantial assistance program.\nAfter being arrested, Gerrehgy told Nipper that defendant loaned him $400 for the purchase and that defendant owed another $700. Gerrehgy also volunteered to participate in the substantial assistance program, but he did not know until a week before trial that he would have to testify against defendant as part of that program.\nDefendant testified that he left El Salvador and came to the United States in 1996. He said that he learned English by reading and watching television, but he did not understand all English words. Defendant indicated that he and Gerrehgy worked together in 1996. Initially, the two were not close friends, but they became closer around June of 1997.\nDefendant stated that everything Gerrehgy said in his testimony was a lie. Defendant testified that he never used cocaine and never saw Gerrehgy use cocaine.\nOn June 7, defendant admitted to loaning Gerrehgy $400, but never asked why Gerrehgy needed the money. Defendant thought that the men were going to Gerrehgy\u2019s house to drink a few beers. Instead, Gerrehgy took defendant to a trailer on Poole Road. Defendant sat on the sofa while Gerrehgy spoke with some Hispanic men in the back room. Defendant thought Gerrehgy was buying some pot for his own personal use.\nThe men left and went to Gerrehgy\u2019s house. Defendant stated that he did not know that Gerrehgy had any drugs. On the way, Gerrehgy received two phone calls on his cell phone. Gerrehgy said' that the first caller was his girlfriend; defendant did not know who the second caller was because Gerrehgy talked too fast, and defendant could not understand what he said.\nAt Gerrehgy\u2019s house, defendant drank a soda while Gerrehgy went into a back room. Gerrehgy told defendant that they were going to Burger King. After arriving at Burger King, Gerrehgy instructed defendant to get in the backseat, but did not explain why. Another guy entered the car and sat in the front seat. Defendant saw Gerrehgy take something out of his pocket before showing it to the man. As the police moved in, Gerrehgy threw the bag in the backseat. After defendant was arrested, he told the officer that he loaned Gerrehgy the money, but never said that it was to purchase drugs.\nRodney Smith and Miguel Cerpas testified that they had known defendant for one to three years and had never seen illegal drugs at defendant\u2019s residence.\nDuring the State\u2019s rebuttal, Jorge Galeana (Galeana) testified that he had known defendant for about two years. Galeana had been to defendant\u2019s house and remembered seeing Gerrehgy there. He had seen cocaine at defendant\u2019s house, but not when Gerrehgy was there.\nEarlier on the day of the arrest, Galeana recalled that Gerrehgy and defendant had a thirty-five to forty-minute conversation about cocaine. Both men spoke in English. Galeana also testified that defendant asked him if he wanted to sell cocaine, but Galeana turned him down.\nDefendant was found guilty of conspiracy to traffic in cocaine and trafficking in cocaine by possession. He was sentenced to 35-42 months in prison.\nDefendant appeals. On appeal, defendant argues that the trial court erred by (1) allowing the State to introduce evidence of prior bad acts under Rule 404(b), (2) preventing defendant from presenting evidence of his character for truthfulness and his character as being law-abiding, (3) denying his motion to discover the identity of the confidential informant, and (4) failing to instruct the jury as to each element of the offense of trafficking in cocaine by possession. With regard to the first three assignments of error, we conclude that there was no prejudicial error. Accordingly, the conviction of conspiracy to traffic in cocaine is upheld. However, since the trial court made an instructional error, the charge of trafficking in cocaine by possession is vacated and remanded for resentencing.\nI. 404(b) Evidence\nDefendant argues that the trial court erred by admitting portions of Gerrehgy\u2019s testimony which mentioned defendant\u2019s other bad acts, including using cocaine in the past and selling cocaine on the day before the arrest. We disagree.\nUnder N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2003):\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\n\u201cThis rule is a general rule of inclusion of such evidence, subject to an exception if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991) (emphasis added). We believe that this evidence was not offered for the sole purpose of showing that defendant had the propensity to commit the crimes charged. Instead, it was admitted to demonstrate that defendant had the motive and intent to possess cocaine to sell.\nWe are also guided by this Court\u2019s decision in State v. Johnson, 13 N.C. App. 323, 185 S.E.2d 423 (1971), appeal dismissed, 281 N.C. 761, 191 S.E.2d 364 (1972). In that case, defendant was charged with possession of marijuana, but denied knowledge of the marijuana or that he had anything to do with it. Id. at 324-25, 185 S.E.2d at 424-25. We allowed evidence which revealed that defendant sold marijuana two weeks earlier and noted that \u201c[i]t was competent for the State to show by the challenged evidence the defendant\u2019s intent and guilty knowledge as well as his motives.\u201d Id. at 325, 185 S.E.2d at 425.\nIn the case at bar, defendant testified that he never used cocaine and never saw Gerrehgy use cocaine. Additionally, his defense was that he was not involved in buying or selling cocaine and that he accompanied Gerrehgy without knowledge that Gerrehgy was making a drug deal. Under these circumstances, it was proper to allow evidence of the prior drug use and the cocaine sale on the previous day to show defendant\u2019s intent, knowledge, and motive. Therefore, this assignment of error is rejected.\nII. Evidence of Defendant\u2019s Character\nDefendant argues that the trial court erred by preventing defendant from introducing evidence of his character for truthfulness and his character as a law-abiding person.\n\u201cRule 404(a) is a general rule of exclusion, prohibiting the introduction of character evidence to prove that a person acted in conformity with that evidence of character.\u201d State v. Bogle, 324 N.C. 190, 201, 376 S.E.2d 745, 751 (1989). \u201cOne of the exceptions to Rule 404(a) permits the accused to offer evidence of a \u2018pertinent trait of his character\u2019 as circumstantial proof of his innocence.\u201d Id. \u201cIn criminal cases, in order to be admissible as a \u2018pertinent\u2019 trait of character, the trait must bear a special relationship to or be involved in the crime charged.\u201d Id. With these general principles in mind, we turn to consider whether defendant\u2019s character for truthfulness and his character as a law-abiding person were pertinent traits.\nOur courts have examined whether the traits of honesty and truthfulness are pertinent in drug cases. In Bogle, our Supreme Court explained:\nTruthfulness and honesty are closely related concepts. Webster\u2019s Ninth New Collegiate Dictionary defines \u2018truthful\u2019 as \u2018telling or disposed to tell the truth.\u2019 It defines \u2018honest\u2019 as \u2018free from fraud or deception.\u2019 In common usage, a person is \u2018truthful\u2019 if he speaks the truth. He is \u2018honest\u2019 if his conduct, including his speech, is free from fraud or deception. Neither trafficking by possession nor by transporting marijuana necessarily involves being untruthful or engaging in fraud or deception. Consequently, we hold that the traits of truthfulness and honesty are not \u2018pertinent\u2019 character traits to the crime of trafficking in marijuana by possession or transportation.\nId. at 202, 376 S.E.2d at 752 (citations omitted). In this case, evidence of defendant\u2019s character for truthfulness is not pertinent to the crimes of conspiring to traffic in cocaine and trafficking cocaine by possession. Therefore, the trial court did not err in excluding this evidence.\nOur courts have also addressed whether a criminal defendant may introduce evidence of his character as a law-abiding person. In deciding whether a trait is pertinent or relevant, it is well established that \u201cthe trait may be general in nature[.]\u201d State v. Squire, 321 N.C. 541, 548, 364 S.E.2d 354, 358 (1988). \u201cAn example of a character trait of a general nature which is nearly always relevant in a criminal case is the trait of being law-abiding.\u201d Id. \u201cEvidence of law-abidingness tends to establish circumstantially that defendant did not commit the crime charged.\u201d Bogle, 324 N.C. at 198, 376 S.E.2d at 749. We conclude that the trait of being law-abiding is pertinent because such evidence would make it less likely that defendant is guilty of conspiracy to traffic in cocaine and trafficking in cocaine by possession. \u25a0\nHowever, this does not end the analysis. We must consider whether this error prejudiced defendant. Pursuant to N.C. Gen. Stat. \u00a7 15A-1443(a) (2003):\nA defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]\nFurthermore, our Supreme Court has indicated that such errors are harmless when there is \u201coverwhelming evidence of defendant\u2019s guilt, including his confession.\u201d State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996). In this case, there was not a reasonable possibility that a different result would have been reached, even if the trial court had admitted the evidence. The State presented overwhelming evidence of defendant\u2019s guilt, including defendant\u2019s own admission of his participation in the crimes charged. This assignment of error is overruled.\nIII. Identity of the Confidential Informant\nDefendant contends that the trial court erred by denying his motion to learn the identity of the confidential informant. \u201cIt is well established that the [S]tate is privileged to withhold from a defendant the identity of a confidential informant, with certain exceptions.\u201d State v. Newkirk, 73 N.C. App. 83, 85, 325 S.E.2d 518, 520, disc. reviews denied, 313 N.C. 608, 332 S.E.2d 81 (1985). However, if revealing the informant is relevant and helpful to the defense or is necessary to make a fair determination of the case, the trial court may require disclosure. Id. at 86, 325 S.E.2d at 520. \u201cOnce defendant has made a \u2018plausible\u2019 showing of the materiality of the informer\u2019s testimony, the trial court must balance the public\u2019s interest with defendant\u2019s right to present his case[.]\u201d Id. (citations omitted). \u201cTwo factors weighing in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, and (2) the [S]tate\u2019s evidence and defendant\u2019s evidence contradict on material facts that the informant could clarifyf.]\u201d Id. (citations omitted). \u201cSeveral factors vitiating against disclosure are whether the defendant admits culpability, offers no defense on the merits, or the evidence independent of the informer\u2019s testimony establishes the accused\u2019s guilt. Id. at 86, 325 S.E.2d at 520-21.\nIn this case, the factors favoring nondisclosure outweigh the factors favoring disclosure. Although defendant offered some defense (that he had no knowledge of or involvement with the cocaine), there was plenty of evidence, independent of the informant\u2019s testimony, to establish guilt. Gerrehgy testified that he and defendant hatched a plan to buy cocaine to resell. Similarly, Galeana described a conversation in which defendant asked him if he wanted to sell cocaine, too. Finally, and perhaps most importantly, defendant was arrested with drugs in his possession and admitted culpability by telling the arresting officer that he contributed $400 towards the purchase of cocaine with the expectation that he would get money back.\nEven if we assume that the confidential informant participated in the commission of the crime, that single factor would not warrant disclosure of the informant. This was not a close case in which the informant\u2019s testimony would clarify key differences in the evidence. The State presented substantial evidence, including defendant\u2019s own admissions, which tended to show that defendant was guilty of the crimes charged. Because the factors favoring nondisclosure outweighed the factors favoring disclosure, the trial court did not err in denying defendant\u2019s motion to learn the informant\u2019s identity. This assignment of error is overruled.\nIV. Instructional Error\nDefendant argues that the trial court erred by failing to instruct the jury on each element of the offense of trafficking in cocaine by possession. The parties agree that the trial court appropriately instructed the jury on the charge of conspiracy to traffic in cocaine. The trial court mentioned all of the elements, including the amount of cocaine at issue (at least 28 grams and less than 200 grams of cocaine). Therefore, this assignment of error is limited to the charge of trafficking in cocaine by possession.\nAt the outset, we note that defendant failed to preserve this issue by raising an objection at trial. N.C.R. App. P. 10(b)(2) (2004). However, N.C.R. App. P. 10(c)(4) allows plain error review of certain questions that were not properly preserved at trial and are not otherwise deemed preserved by rule of law. Our courts have applied plain error analysis to errors in jury instructions. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). In his assignments of error, defendant properly contends that the trial court committed plain error. Therefore, we will apply plain error analysis to the trial court\u2019s jury instruction on this charge.\n\u201cA trial judge is required ... to instruct the jury on the law[.]\u201d Bogle, 324 N.C. at 195, 376 S.E.2d at 748. \u201cThis includes instruction on elements of the crime.\u201d Id. \u201cThe trial judge has great discretion in the manner in which he charges the jury, but he must explain every essential element of the offense charged.\u201d State v. Young, 16 N.C. App. 101, 106, 191 S.E.2d 369, 373 (1972). In its brief, the State concedes that the trial court did not charge on the amount of the drugs: Our courts have established that such an omission is erroneous.\nIn State v. Gooch, 307 N.C. 253, 255, 297 S.E.2d 599, 601 (1982), the trial court failed to instruct the jury that it had to find that defendant possessed more than one ounce of marijuana to return a guilty verdict on the charge of possession of over one ounce of marijuana. In Gooch:\nThe trial judge properly referred to the offense as \u201cpossessing a quantity of marijuana more than one ounce\u201d; however, the court told the jury in the final mandate that it needed to find only that defendant possessed marijuana to find him guilty of the stated offense.\nId. at 256, 297 S.E.2d at 601. Our Supreme Court explained that \u201c [possession of more than one ounce is an essential element of the offense and the trial judge\u2019s failure to so charge was error.\u201d Id.\nThe case at bar is very similar to Gooch. Here, the trial court correctly described the charge as \u201ctrafficking in cocaine by possession, which is the unlawful possession of at least 28 grams of cocaine but less than 200 grams of cocaine.\u201d However, the trial court never mentioned that the weight of the drugs was one of the elements which had to be proven beyond a reasonable doubt. Therefore, as it did in Gooch, the trial court erred in failing to instruct on the amount of drugs.\nDefendant contends that this instructional error entitles him to a new trial. We cannot agree. In Gooch, our Supreme Court rejected this argument and explained:\nDefendant is not, however, entitled to a new trial. In failing to submit the amount requirement.. . the trial court essentially submitted to the jury the offense of simple possession of marijuana and the jury convicted defendant of that offense. \u25a0\nId. at 257, 297 S.E.2d at 602 (citation omitted). Ultimately, the Court recognized the decision as a guilty verdict of simple possession of marijuana and remanded the case for resentencing. Id. at 258, 297 S.E.2d at 602.\nWe believe that a similar result is warranted in the case at bar. The sole distinction between trafficking in cocaine by possession, N.C. Gen. Stat. \u00a7 90-95(h)(3)(a) (2003), and simple possession of cocaine, N.C. Gen. Stat. \u00a7 90-95(a)(3), is the amount of drugs. To convict defendant of trafficking in cocaine by possession, the jury would have to find that defendant (1) knowingly possessed cocaine, and (2) in an amount that was 28 grams or more, but less than 200 grams. N.C. Gen. Stat. \u00a7 90-95(h)(3)(a). In contrast, defendant could be found guilty of simple possession if he possessed any amount of cocaine. N.C. Gen. Stat. \u00a7 90-95(a)(3). Thus, by failing to mention the amount requirement, the trial court submitted and the jury found defendant guilty of simple possession of cocaine. As the Supreme Court did in Gooch, we remand this portion of the case to the Wake County Superior Court for resentencing as upon a verdict of guilty of simple possession of cocaine.\nIn summary, we conclude that the trial court did not commit prejudicial error on issues related to defendant\u2019s first three assignments of error. Accordingly, the charge of conspiracy to traffic in cocaine is upheld. However, because of the instructional error, we vacate the trial court\u2019s judgment on the trafficking in cocaine by possession charge. This portion of the case is remanded to the trial court for resentencing as upon a verdict of guilty of simple possession of cocaine.\nNo error in part, vacated in part, and remanded in part for resentencing.\nJudges HUDSON and LEVINSON concur.", "type": "majority", "author": "McCullough, judge." } ], "attorneys": [ "Attorney General Roy Cooper,' by Special Deputy Attorney General Karen E. Long, for the State.", "Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANAEL SALINAS VALLADARES\nNo. COA03-879\n(Filed 3 August 2004)\n1. Evidence\u2014 prior bad acts \u2014 sale and use of cocaine\u2014 intent, knowledge, motive\nThe admission of testimony mentioning defendant\u2019s prior bad acts, including the sale and use of cocaine, was admissible in a prosecution for conspiracy to traffic in cocaine and for trafficking in cocaine by possession. Defendant testified that he never used cocaine and his defense was that he had accompanied a friend without knowledge that the friend was involved in a drug deal; under these circumstances, the testimony was proper to show defendant\u2019s intent, knowledge, and motive.\n2. Evidence\u2014 character for truthfulness \u2014 not pertinent to cocaine trafficking\nEvidence of a defendant\u2019s character for truthfulness was correctly excluded as not pertinent to cocaine trafficking.\n3. Evidence\u2014 law abiding person \u2014 pertinent\u2014exclusion not prejudicial\nEvidence of a cocaine trafficking defendant\u2019s character as a law-abiding person tended to establish that defendant did not commit the crime and was incorrectly excluded, but there was no prejudice because the State presented overwhelming evidence of defendant\u2019s guilt.\n4. Evidence\u2014 identity of confidential informant \u2014 factors favoring nondisclosure\nThe trial court\u2019s refusal to disclose the identity of a confidential informant to a cocaine trafficking defendant was not error where the factors favoring nondisclosure outweighed the factors favoring disclosure.\n5. Drugs\u2014 cocaine trafficking \u2014 weight as element \u2014 instruction required\nA conviction for trafficking in cocaine by possession was remanded for resentencing for simple possession where the court did not tell the jury that the weight of the cocaine was an element that had to be proven beyond a reasonable doubt.\nAppeal by defendant from judgment entered 31 October 2002 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 22 April 2004.\nAttorney General Roy Cooper,' by Special Deputy Attorney General Karen E. Long, for the State.\nOsborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for defendant appellant." }, "file_name": "0598-01", "first_page_order": 630, "last_page_order": 641 }