State v. Christian, COA22-299, ___ N.C. App. ___ (Mar. 7, 2023)

In this Cleveland County case, defendant appealed his convictions for trafficking methamphetamine, arguing that his motion to dismiss should have been granted as he was not physically present when his travel companion was found in possession of the contraband. The Court of Appeals affirmed the denial of defendant’s motion to dismiss. 

In February of 2020, an associate of defendant was arrested for possession of drugs and chose to assist police with their investigation of defendant in return for leniency. Defendant had asked the associate for assistance in bringing drugs from Georgia to North Carolina, and the police assisted the associate in developing a plan where they would drive together to pick up drugs for sale in North Carolina. The plan would conclude with the pair being pulled over as they re-entered the state. However, as the pair returned from Atlanta with the drugs, they became tired, and defendant called a female friend to assist them with driving from South Carolina to their destination in North Carolina. The female friend arrived with another woman, and the pair split up, leaving defendant’s associate in the car with the contraband and one woman, and defendant in a different car with the other woman. They were both pulled over when they passed into North Carolina, traveling three to five miles apart. At trial, defense counsel moved to dismiss the charges at the close of state’s evidence and again at the close of all evidence, but both motions were denied.

The Court of Appeals first explained that a person may be charged with a crime in North Carolina even if part of the crime occurred elsewhere, as long as at least one of the essential acts forming the crime occurred in North Carolina, and the person “has not been placed in jeopardy for the identical offense in another state.” Slip Op. at 5, quoting G.S. 15A-134. The court then moved to defendant’s arguments that he did not possess or transport the drugs while in North Carolina so he could not be charged with trafficking by possession or trafficking by transportation. 

Although defendant did not have actual possession of the drugs in North Carolina, the court noted that the “knowing possession” element of trafficking by possession could also be shown by proving that “the defendant acted in concert with another to commit the crime.” Slip Op. at 6, quoting State v. Reid, 151 N.C. App. 420, 428 (2002). Along with the evidence in the current case showing the defendant acted in concert with his associate, the trafficking charge required showing that defendant was present when the offense occurred. Here, after exploring the applicable case law, the court found that defendant was “constructively present” because, although “parties in the present case were a few miles away from each other, they were not so far away that defendant could not render aid or encouragement [to his associate].” Id. at 11. 

Moving to the trafficking by transportation charge, the court noted that “[a]s with trafficking by possession, ‘trafficking by transport can be proved by an acting in concert theory.’” Id. at 13, quoting State v. Ambriz, 880 S.E.2d 449, 459 (N.C. App. 2022). The court explained that “[f]or the same reasons we hold that defendant’s motion to dismiss the trafficking by possession charge was properly denied, we also hold that the motion to dismiss the trafficking by transportation charge was properly denied.” Id.