State v. Trejo

594 S.E.2d 125, 163 N.C. App. 512, 2004 N.C. App. LEXIS 417
CourtCourt of Appeals of North Carolina
DecidedApril 6, 2004
DocketCOA03-658
StatusPublished
Cited by3 cases

This text of 594 S.E.2d 125 (State v. Trejo) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Trejo, 594 S.E.2d 125, 163 N.C. App. 512, 2004 N.C. App. LEXIS 417 (N.C. Ct. App. 2004).

Opinions

LEVINSON, Judge.

Defendant (Ignacio Garcia Trejo) was indicted for trafficking in marijuana by possession and trafficking in marijuana by transportation in violation of N.C.G.S. § 90-95(h)(l)(a). Both indictments alleged that the amount of marijuana involved was “10 pounds or more but less than 50 poundsf.]” Defendant also was indicted for conspiracy to traffic in more than ten but less than fifty pounds of marijuana pursuant to N.C.G.S. § 90-95(i).

At trial, a detective with the Rowan County Sheriffs Department testified that he observed defendant and another individual arrive at a residence in a blue Geo Prism and carry a large cardboard box taken from the car into the residence. The detective testified that, shortly thereafter, the box was found by police in a spare room in the residence. An agent working in the laboratory of the State Bureau of Investigation testified that she had determined the contents of the box to be marijuana in an amount weighing eighteen pounds. Defendant testified that he did not know that the box contained marijuana, and he estimated that the box and its contents weighed “six or seven pounds” at the time he carried it.

The trial court instructed the jury that it should find defendant guilty of trafficking in marijuana by possession if it found that he possessed “ten pounds or more but less than fifty pounds” of marijuana, and that it should find defendant guilty of trafficking in marijuana by transportation if it found that he transported “ten pounds or more but less than fifty pounds” of marijuana. A jury convicted defendant of both trafficking offenses, as well as conspiracy to traffic in marijuana. The conspiracy conviction was obtained [514]*514pursuant to a proper indictment and proper jury instructions, and is not at issue in this appeal.

Defendant appeals by writ of certiorari allowed 6 March 2002 from his convictions for trafficking in marijuana by possession and trafficking in marijuana by transportation, contending that these convictions must be vacated because they (1) have been obtained pursuant to invalid indictments, and (2) are the products of ambiguous jury verdicts in violation of the North Carolina Constitution. We conclude the indictments are not invalid but that defendant’s drug trafficking convictions must be reversed.

In his first argument on appeal, defendant contends that the indictments charging him with trafficking in marijuana by possession and trafficking in marijuana by transportation are fatally defective because each indictment fails to correctly specify the quantity of marijuana necessary for conviction of each offense. We do not agree.

To be constitutionally valid, an indictment “ ‘must allege lucidly and accurately all the essential elements of the offense endeavored to be charged.’ ” State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (quoting State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)). To comport with our Criminal Procedure Act, an indictment must “assert[] facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant... of the conduct which is the subject of the accusation.” N.C.G.S. § 15A-924(a)(5) (2003). An indictment meets minimum standards for validity if it:

“(1) [provides] such certainty ... as will identify the offense with which the accused is sought to be charged; (2) [protects] the accused from being twice put in jeopardy for the same offense; (3) [enables] the accused to prepare for trial, and (4) [enables] the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case.”

State v. Sparrow, 276 N.C. 499, 510, 173 S.E.2d 897, 904 (1970) (quoting Greer, 238 N.C. at 327, 77 S.E.2d at 919); see also Hunt, 357 N.C. at 267, 582 S.E.2d at 600. An indictment

is sufficient in form ... if it express [sic] the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the [515]*515bill . . . , sufficient matter appears to enable the court to proceed to judgment.

N.C.G.S. § 15-153 (2003). “[A]n indictment which avers facts which constitute every element of an offense does not have to be couched in the language of the statute [codifying the offense].” State v. Hicks, 86 N.C. App. 36, 40, 356 S.E.2d 595, 597 (1987).

The instant case involves separate indictments for trafficking in marijuana by possession and trafficking in marijuana by transportation pursuant to N.C.G.S. § 90-95(h)(l)(a) (2003), which provides:

Any person who . . . transports, or possesses in excess of 10 pounds (avoirdupois) of marijuana shall be guilty of a felony which felony shall be known as “trafficking in marijuana” and if the quantity of such substance involved . . . [i]s in excess of 10 pounds, but less than 50 pounds, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 30 months in the State’s prison and shall be fined not less than five thousand dollars ($ 5,000).

(emphasis added). “Weight of the marijuana is an essential element of trafficking in marijuana under G.S. 90-95(h).” State v. Goforth, 65 N.C. App. 302, 306, 309 S.E.2d 488, 492 (1983); State v. Anderson, 57 N.C. App. 602, 608, 292 S.E.2d 163, 167 (1982).

In the instant case, the indictment charging defendant with trafficking in marijuana by possession alleges that the defendant “possessed] 10 pounds or more but less than 50 pounds” of marijuana, and the indictment charging defendant with trafficking in marijuana by transportation alleges that defendant “transport[ed] 10 pounds or more but less than 50 pounds” of marijuana. Relying on Goforth, defendant contends that neither indictment alleges that the amount of marijuana possessed or transported by the defendant was “in excess of 10 pounds, but less than 50 pounds” as is required pursuant to G.S. § 90-95(h)(l)(a). We do not agree.

In Goforth, 65 N.C. App. at 306, 309 S.E.2d at 492, three defendants were indicted for conspiring to traffic “in at least 50 pounds of marijuana” where the conduct proscribed by law was conspiring to traffic “in excess of 50 pounds of marijuana” (emphasis added). This Court held that the indictments were invalid “because ‘in at least 50 pounds’ is not ‘in excess of 50 pounds.’ ” Id. The conduct alleged in the Goforth indictments did not necessarily allege that defendants [516]*516had conspired to traffic marijuana in an amount that was more than fifty pounds, which was an essential element of the crime charged. Rather, the Goforth indictments alleged that defendants had conspired to traffic marijuana in an amount that was, at the very least, fifty pounds. Though the phrase “at least 50 pounds” implied that the Goforth

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Related

State v. Charles
669 S.E.2d 859 (Court of Appeals of North Carolina, 2008)
State v. Herring
662 S.E.2d 579 (Court of Appeals of North Carolina, 2008)
State v. Trejo
594 S.E.2d 125 (Court of Appeals of North Carolina, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
594 S.E.2d 125, 163 N.C. App. 512, 2004 N.C. App. LEXIS 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-trejo-ncctapp-2004.