McGEE, Judge.
Henderson County Sheriff's Deputy David McMurray ("Deputy McMurray") was working with a special unit that involved both Henderson and Buncombe Counties along Interstate 40 on 4 September 2011. That day he was working in Buncombe County. Defendant Edgar Ampelio-Villalvazo ("Villalvazo") was driving a tractor-trailer ("the truck") on 4 September 2011 that was owned by Defendant Eradio Velazquez-Perez ("Perez") (together, "Defendants"). Perez was also in the truck at the time. Deputy McMurray was sitting in an unmarked SUV ("the SUV") parked at a commercial vehicle weigh station, facing the exit ramp, when he observed the truck exiting Interstate 40 headed into the weigh station. Deputy McMurray, who had been trained in visual estimation of speed, testified that he estimated the truck to be travelling at approximately fifty miles per hour where the posted recommended speed was thirty miles per hour.
After the truck had exited the scales, Deputy McMurray stopped the truck at the weigh station. Deputy McMurray positioned his SUV facing the truck and activated the SUV's dashboard camera. The camera simultaneously recorded video of the truck and the interior of Deputy McMurray's SUV. The camera also recorded audio inside the SUV, and had the capability to record audio from a receiver that Deputy McMurray could wear on his person, but Deputy McMurray either forgot to wear the receiver or failed to activate it. Deputy McMurray approached the cab of the truck, spoke with Defendants, and returned to his SUV with some documentation. Villalvazo then exited the truck and walked back to the SUV with additional documentation. Villalvazo sat in the passenger seat of the SUV for approximately forty-nine minutes, while Deputy McMurray wrote a warning citation and conducted certain records checks related to the stop, including checking the driver's licenses of Villalvazo and Perez, the truck registration, insurance information, log books, and other documentation related to the load then being transported on the truck.
During the stop, Deputy McMurray asked Villalvazo a number of questions, and on several occasions left the SUV, returning to the truck to ask Perez additional questions. Deputy McMurray completed the warning citation and handed it to Villalvazo approximately twelve minutes into the stop and informed Villalvazo that the documentation check was ongoing, and so Villalvazo remained in the SUV.
During this process, Deputy McMurray became suspicious that criminal activity, such as drug trafficking, might be occurring. Deputy McMurray's suspicions were based on a number of observations, including concerns he had about the log books, what he perceived as nervous behavior on the part of Villalvazo, and certain discrepancies between
Once Deputy McMurray completed checking the documents, he returned the documents to Villalvazo and Perez, and asked them both if they would consent to a search of the truck. Both agreed and signed voluntary consent forms authorizing a search of the truck. Deputy McMurray used a hammer to tap on various areas of the interior of the cab, and located several places that he believed might contain hidden compartments. Deputy McMurray used a knife to cut through or remove upholstery, and to remove sheet metal beneath the upholstery. In so doing, Deputy McMurray uncovered several hidden compartments, two of which contained a combined twenty-four kilograms of cocaine. Only one fingerprint was recovered from inside the hidden compartments, and it matched neither Villalvazo nor Perez. A duffel bag containing Perez's clothes and personal items was also located inside the cab of the truck and $5,000.00 in cash was recovered from inside the lining of that duffel bag. Several mobile phones belonging to Perez were also recovered. Villalvazo had one mobile phone with him, and only a small amount of cash.
Villalvazo and Perez were arrested and tried together. Each was found guilty of two counts of trafficking cocaine in excess of 400 grams (based upon possession and transportation), one count of possession with intent to sell or deliver cocaine, and one count of conspiracy to traffic in cocaine by transporting and possessing cocaine in excess of 400 grams. Both Defendants appealed, and we address both of their appeals in this opinion.
In Villalvazo's first argument, he contends the trial court erred in denying his motions to dismiss the two counts of trafficking cocaine (based upon possession and transportation), and the one count of possession with intent to sell or deliver cocaine, because the State failed to produce substantial evidence of each essential element of those charges. We agree.
State v. Tisdale, 153 N.C. App. 294, 296-97, 569 S.E.2d 680, 682 (2002) (citations omitted). "Trafficking in cocaine by possession and trafficking in cocaine by transportation, in violation of N.C. Gen.Stat. § 90-95(h)(3) (2001), require the State to prove that the substance was knowingly possessed and transported." State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504 (2003) (citation omitted).
Tisdale, 153 N.C.App. at 297, 569 S.E.2d at 682 (citations omitted). Knowledge of the existence of the contraband was necessary to prove the trafficking and possession charges. State v. Wiggins, 185 N.C. App. 376, 386, 648 S.E.2d 865, 872 (2007).
The State argues that the facts in this case regarding Villalvazo's knowledge of the cocaine are analogous to those in Tisdale and State v. Munoz, 141 N.C. App. 675, 541 S.E.2d 218 (2001). We disagree. In Tisdale, this Court found sufficient additional incriminating circumstances where the defendant was driving alone in an automobile that had been rented by another person, Harold Leak ("Leak"). Tisdale, 153 N.C.App. at 295, 569 S.E.2d at 681.
Tisdale, 153 N.C.App. at 298-99, 569 S.E.2d at 683.
In Munoz, regarding the defendant's knowledge of cocaine recovered from a vehicle the defendant had been driving, this Court held that "it could be inferred [from the attendant circumstances] that defendant had knowledge of the presence of [] cocaine." Munoz, 141 N.C.App. at 686, 541 S.E.2d at 224.
Id. at 685-86, 541 S.E.2d at 224.
We note that not only was Villalvazo's control over the truck not exclusive, the owner of the truck was Perez, the co-driver. The cocaine was secreted in hidden compartments that were not accessible to Villalvazo. Because the truck belonged to Perez, Perez was the one with the authority to cut open the truck, hide the cocaine, and seal the compartments with sheet metal and upholstery. The State argues there were other incriminating circumstances sufficient to submit to the jury the charges of trafficking and possession against Villalvazo. Specifically, the State cites Deputy McMurray's "review of the logbooks and other documentation [that] caused him to question the economic feasibility of the trip, which supported his overall suspicion of illegal narcotics activity." If, in fact, Perez's trucking company was operating in an economically unsound manner, that would be evidence the jury could consider in its deliberations concerning Perez. Evidence suggested Villalvazo had not been working very long for Perez, there was no evidence that Villalvazo had any stake or control in Perez's trucking company, or any authority to countermand Perez's authority. Deputy McMurray's suspicions concerning the logbooks and other documentation are not particularly relevant to Villalvazo in this matter.
The State contends that "as the driver of the vehicle, [Villalvazo] had the power to control the contents of the vehicle." No evidence was presented that Villalvazo had the power to control the cocaine hidden inside secret compartments that Deputy McMurray had to cut through upholstery and sheet metal to discover. The State also argues: "[Villalvazo] did not testify, and indeed presented no evidence as to his lack of access." It is improper for the State to base arguments at trial on a defendant's decision not to testify, and it is at least inappropriate to do so on appeal. The State contends Villalvazo "was in essence the borrower of the vehicle" which, based upon State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124 (1974), allowed
Id. at 64, 210 S.E.2d at 127. We disagree with the State that a hired employee of a trucking company, who has been instructed to drive by his employer, is "in essence the borrower of the vehicle[.]" We find this analogy especially tenuous when the employer and owner of the vehicle was in the vehicle and would have been driving the vehicle had it been stopped at another time during the trip.
The State also refers to Deputy McMurray's "many suspicions" concerning Villalvazo. These suspicions included Villalvazo clearing his throat and "kind of coughing" several times during the approximately fifty minutes Villalvazo was sitting in Deputy McMurray's SUV, Deputy McMurray's testimony that Villalvazo sometimes avoided eye contact, and that Villalvazo's "heart" was beating in his neck. In its order denying Defendants' motions to suppress, the trial court found as fact: "The Court observed the demeanor of [Villalvazo] in the video to be somewhat apprehensive and nervous during the investigation by Officer McMurray[.]" We agree with the trial court that Villalvazo's demeanor could be characterized as "somewhat apprehensive and nervous during the investigation[.]"
The State contends that Villalvazo "presented no evidence as to his lack of access [to the hidden compartments]." However, on cross-examination of the State's witnesses, the defense attorneys elicited testimony that none of Villalvazo's fingerprints were recovered from inside the compartments or from the packaged cocaine, that cutting and removing upholstery and sheet metal to uncover the compartments was labor intensive, and
The State's evidence in support of the required element that Villalvazo had knowledge of the cocaine hidden within the structure of the truck was that Villalvazo was in the truck, was driving the truck at the time of the stop, and that Deputy McMurray believed Villalvazo showed some signs of nervousness during the stop. The State presented no evidence that Perez actually communicated with Villalvazo in any manner concerning hidden compartments or any cocaine within the hidden compartments. The evidence presented — that Villalvazo knew Perez only because Perez had hired Villalvazo as a driver and they had only known each other only for a short period of time ? does not establish a relationship between the two as indicative of the trust one would expect when admitting to a serious felony. We can think of no good reason why Perez would want, or need, to share that information with one in Villalvazo's position. The level of nervousness demonstrated by Villalvazo in this instance is also of limited value to the State's case. As our Supreme Court has stated: "[M]any people do become nervous when stopped by [a law enforcement officer]." State v. McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999). Some degree of nervousness is common when a person is stopped and detained by law enforcement, even for minor traffic violations.
We hold that the evidence presented to support the required element that Villalvazo knew there was cocaine secreted within the body of the truck was not substantial, in that it did not constitute "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Tisdale, 153 N.C.App. at 296, 569 S.E.2d at 682 (citation omitted). We make this holding even considering "all of the evidence ... in the light most favorable to the State[.]" Id. at 296-97, 569 S.E.2d at 682 (citation omitted). We vacate Villalvazo's convictions for trafficking in cocaine by transportation, trafficking in cocaine by possession, and possession of cocaine with intent to sell or deliver.
Both Villalvazo and Perez argue the State failed to present substantial evidence in support of the charges of "conspir[acy] to traffic in cocaine ... by transporting and possessing [cocaine] in excess of 400 grams[.]" We agree.
State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citations omitted).
State v. Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360 (2004) (citations omitted). Though not dispositive, the fact we held above that there was not substantial evidence indicating Villalvazo knew there was cocaine secreted in the truck factors into our analysis. The State submitted no evidence directly implicating Villalvazo and Perez in a conspiracy. The only evidence presented was that Villalvazo worked for Perez, and that they were both involved in driving the truck while it contained the cocaine. In the present case, "[t]he evidence ... does not point unerringly toward conspiracies [to traffic in cocaine by transporting and possessing cocaine in excess of 400 grams] and is insufficient to support convictions on those
Because our holdings above result in vacating all four convictions against Villalvazo, we do not address Villalvazo's remaining arguments.
In Perez's second argument, he contends the trial court erred in denying his motion to suppress the cocaine seized based upon his argument that the stop was unconstitutionally extended. We disagree.
Perez contends:
Perez's argument is limited to contending that, once Deputy McMurray handed Villalvazo the warning citation, the purpose of the stop was over, and anything that occurred after that time constituted an unconstitutional prolongation of the stop. However, Perez provides no citation to authorities upon which he relies in support of the proposition that the purpose of the stop was necessarily completed once the citation for the infraction justifying the stop had been given to the person who committed the infraction. Failure to cite to supporting authority is a violation of Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, and constitutes abandonment of this argument. N.C.R.App. P. 28(b)(6).
In addition, we find no such authority. Law enforcement officers routinely check relevant documentation while conducting traffic stops. This Court has recognized that
State v. Jackson, 199 N.C. App. 236, 243, 681 S.E.2d 492, 497 (2009).
In the present case, though Deputy McMurray had completed writing the warning citation, he had not completed his checks related to the licenses, registration, insurance, travel logs, and invoices of Perez's commercial vehicle. Perez does not argue that investigation into any of these documents was improper. The purpose of the stop was not completed until Deputy McMurray finished a proper document check and returned the documents to Villalvazo and Perez. Because Perez does not argue this issue, we do not make any holding regarding which documents may be properly investigated during a routine commercial vehicle stop.
The trial court found as fact that: "The actual time for this traffic stop of [] Defendants was approximately 53 minutes[;]" that Deputy McMurray asked both Villalvazo and Perez for consent to search the truck, and consent was given by both; that both Villalvazo and Perez signed consent to search forms; and that "[d]uring the course of the consent search," the hidden compartments were located, and the cocaine was recovered from two of those compartments. Perez does not challenge these findings of fact, and they are therefore binding on appeal. State v. McLeod, 197 N.C. App. 707, 711, 682 S.E.2d 396, 398 (2009).
The trial court concluded that Villalvazo and Perez "voluntarily consented and agreed to additional questioning once the purpose of the traffic stop was completed." Because these unchallenged findings of fact support the trial court's conclusion that Villalvazo and Perez voluntarily consented to the search of the truck after the approximately fifty-three
State v. Hernandez, 170 N.C. App. 299, 303-04, 612 S.E.2d 420, 423 (2005) (citations omitted). The fact that the trial court also included findings of fact and conclusions of law relating to Defendants' reasonable suspicion argument at the hearing is of no moment. The 16 October 2012 order contains unchallenged findings of fact supporting the trial court's conclusion that the search was a legal search based on the voluntary consent of both Villalvazo and Perez. This argument is without merit.
In Perez's third argument, he contends his trial counsel was ineffective due to his "failure to renew the objection to the admission of evidence that was fruits of the improper extension of the traffic stop." Having held that Perez's argument in Section IV. fails, this argument also fails.
In Perez's fourth argument, he contends the trial court erred "in ordering costs for fingerprint examination as lab fees as part of [Perez's] sentence in violation of a statutory mandate." We agree.
N.C. Gen.Stat. § 7A-304 (2013) covers costs in criminal prosecutions, and allows certain lab costs to be assessed to a defendant who is convicted.
N.C. Gen.Stat. § 7A-304(a)(8) (2013).
The State agrees with Perez that N.C.G.S. § 7A-304(a)(8) does not allow recovery of lab costs for fingerprint analysis, "and therefore the State does not object to [Perez's] request that $600 be vacated from the $1,200 costs ordered by the trial court." The trial court erred in assessing $600.00 for fingerprint analysis done by the Charlotte-Mecklenburg Police Department. We reverse and remand for correction of this error.
In conclusion, we vacate all four of Villalvazo's convictions. We vacate Perez's conviction for conspiracy to traffic in cocaine. We find no error related to Perez's remaining convictions. We reverse and remand for the trial court to delete the $600.00 it assessed as costs for fingerprint examination as lab fees as part of Perez's sentence, and enter a corrected judgment.
Vacated in part, no error in part, reversed and remanded in part.
Judges HUNTER, Robert C. and ELMORE concur.