An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1318
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014



STATE OF NORTH CAROLINA


      v.                                         Mecklenburg County
                                                 No. 12CRS213245, 12CRS213246
JOSE GUSTAVO GALAVIZ-TORRES
     Defendant


      Appeal by Defendant from judgments entered 24 May 2013 by

Judge Hugh B. Lewis in Mecklenburg County Superior Court.                       Heard

in the Court of Appeals 20 March 2014.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Joseph L. Hyde, for the State.

      Glenn Gerding, for Defendant-appellant.


      DILLON, Judge.


      Jose    Gustavo     Galaviz-Torres          (“Defendant”)      appeals     from

convictions      for    one    count      of     trafficking    in    cocaine     by

possession,       one     count      of        trafficking     in     cocaine      by

transportation, and one count of possession with intent to sell

or deliver cocaine.        Because we are compelled by our decision in

State v. Coleman, __ N.C. App. __, 742 S.E.2d 346, disc. review
                                          -2-
denied, __ N.C. __, 752 S.E.2d 466 (2013) to conclude that the

trial court committed plain error by failing to give a jury

instruction     regarding      Defendant’s          guilty       knowledge          on    each

charge, we reverse the Defendant’s convictions and remand for a

new trial.

      On 2 April 2012, Defendant was indicted for trafficking

cocaine by possession, trafficking cocaine by transportation,

and   possession       with    intent        to     sell    or      deliver         cocaine.

Defendant was tried on these charges at the 20 May 2013 Criminal

Session    of   Mecklenburg       County      Superior       Court.        The       State’s

evidence     tended    to     show     that       Charlotte-Mecklenburg                  Police

Department      and     the       Drug        Enforcement           Agency          (“police

investigators”) began jointly investigating Defendant based on

information     from     a     confidential           informant         that        he      was

trafficking     cocaine.          On   the    afternoon        of    26    March         2012,

Defendant    arrived    at    a    Taco      Bell    parking      lot     in    a    van    to

participate in a drug sale with the informant.                          As a result of

this meeting, Defendant was immediately arrested.                              Incident to

the   arrest,   the    police      investigators           searched       the    van      that

Defendant had driven to the location and found a gift bag next

to the driver’s seat containing what was later determined to be

over 1 kilogram of cocaine.            After receiving his Miranda rights,
                                           -3-
Defendant told police investigators that he was transporting the

cocaine       for   someone       else    and    that   he      had    been    paid     for

transporting cocaine in the past.

       Defendant, however, testified that he was at the Taco Bell

delivering ladders for a man he had performed construction work

for in the past; that he had borrowed the van to make the

delivery; that he was not aware that there was cocaine in the

van;    and    that       the   cocaine    did    not   belong        to   him.       Also,

Defendant denied making any statements to police investigators

that he had been transporting cocaine on the day in question or

that he had been paid in the past to transport cocaine.

       On 24 May 2013, a jury found Defendant guilty of all three

charges.       The trial court consolidated the possession and the

trafficking by possession convictions and ordered Defendant to a

term of 175 to 222 months of imprisonment.                        On the conviction

for    trafficking         by   transportation,     the    trial       court   sentenced

Defendant      to     a    consecutive     term    of     175    to    222     months    of

imprisonment.         The trial court also fined Defendant $250,000 for

each judgment.            Defendant gave oral notice of appeal at trial.

       __________________________________________________________

       Defendant raises only one issue on appeal.                          Specifically,

Defendant argues that the trial court committed plain error by
                                           -4-
failing    to   instruct     the    jury       that    it     had    to    find   beyond    a

reasonable doubt that he knew what he possessed and transported

was cocaine.        The record shows that Defendant failed to object

to the exclusion of a jury instruction regarding his guilty

knowledge.      When a defendant fails to preserve an instructional

error at trial for appellate review, our Court may nonetheless

review for plain error.             See State v. Odom, 307 N.C. 655, 660,

300   S.E.2d    375,   378    (1983);      N.C.R.           App.    P.    10(a)(4).       Our

Supreme Court has stated that “[i]n order to prevail under a

plain error analysis, Defendant must establish not only that the

trial court committed error, but that absent the error, the jury

probably    would    have    reached       a    different          result.”       State    v.

Steen, 352 N.C. 227, 269, 536 S.E.2d 1, 25-26 (2000) (citation

and quotation marks omitted), cert. denied, 531 U.S. 1167, 148

L. Ed. 2d 997 (2001).

      In the present case, each of the three crimes for which

Defendant was convicted contains an element requiring Defendant

to have knowledge that what he was possessing or transporting

was   cocaine.       Our    Supreme    Court          has    held    that     “[f]elonious

possession of a controlled substance has two essential elements.

The   substance     must     be    possessed      and        the    substance     must     be

knowingly possessed.”             State v. Weldon, 314 N.C. 401, 403, 333
                                          -5-
S.E.2d 701, 702-03 (1985) (holding that “a defendant must be

aware   of   the    presence   of    an    illegal   drug   if   he    is   to   be

convicted of possessing it”) (emphasis added).                   Likewise, to

establish trafficking by possession or by transportation, the

State   must    show    that   the    defendant      knowingly   possessed       or

transported,       respectively,     the    requisite   amount    of    cocaine.

State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504

(2003).

    At trial, Defendant’s sole defense was essentially based on

his testimony that he did not know there was cocaine in the van

he was driving.          We have held that where the “evidence when

viewed in the light most favorable to the defendant discloses

facts which are legally sufficient to constitute a defense to

the charged crime, the trial court must instruct the jury on the

defense.”      State v. Everett, 163 N.C. App. 95, 100, 592 S.E.2d

582, 586 (2004) (citation and quotation marks omitted) (emphasis

added).      Our Supreme Court has held that “when the defendant

introduces evidence of lack of guilty knowledge the court must

charge on it.”         State v. Nobles, 329 N.C. 239, 244, 404 S.E.2d

668, 671 (1991).

    Defendant’s         argument     is    in   reference   to   pattern     jury

instructions N.C.P.I. Criminal 260.15, 260.17, and 260.30 which
                                          -6-
correspond with each of his three convictions.                       The instruction

for each crime contains a requirement that the jury find, beyond

a reasonable doubt, that the defendant “knowingly possessed” or

“knowingly transported” cocaine.                Each instruction also contains

a footnote which essentially requires the trial court give an

additional instruction in situations where a defendant contends

he did not know the true identity of what he possessed; namely,

an instruction that the jury must also find that the defendant

knew that it was cocaine that he was possessing or transporting.

Each footnote cites our Supreme Court’s decision in State v.

Boone, 310 N.C. 284, 311 S.E.2d 552 (1984) as the authority

requiring this additional instruction.

       In   Boone,       the    defendant       was     convicted       of   possessing

marijuana     when   he    was    driving    a    car    that     had   a    duffel   bag

containing the drug in his trunk.                 Id. at 285-86, 311 S.E.2d at

554.    The defendant, however, claimed that a friend had asked

him to transport the bag; that he knew the bag was in his car;

but that he did not know that there was marijuana in the bag.

Id.    at   294,   311    S.E.2d    at    559.         While    reviewing     State   v.

Elliott, 232 N.C. 377, 61 S.E.2d 93 (1950), the Court noted that

for general intent crimes intent or knowledge is presumed in

committing     the       act,    unless     the       defendant     pleads     lack   of
                                       -7-
knowledge, making intent or knowledge a determinative issue of

fact and an element of the crime.              Id. at 292, 311 S.E.2d at

558.    The Supreme Court affirmed this Court’s awarding of the

defendant a new trial because the pattern instruction in use at

that time allowed the jury to convict if it found that the

defendant “knew or had reason to know” that what he possessed

was the illegal drug.        Id. at 294, 311 S.E.2d at 559 (emphasis

added).     The Court held that this instruction was inappropriate

where the defendant being charged with the general intent crime

of possession of marijuana put at issue whether he knew that

what he was in possession of was, in fact, an illegal drug.                   Id.

       In the present case, the State argues that the additional

instruction in the footnote is not required under Boone because,

unlike the instruction in Boone which allowed a jury to convict

even   if   it   found   that    the   defendant      did   not   have     guilty

knowledge but merely had “reason to know” that he possessed an

illegal drug, the pattern instruction used here states that the

jury must find that Defendant “knowingly possessed” cocaine or

“knowingly    transported”      cocaine.     In   other     words,   the    State

argues that the additional instruction in the footnote is not

mandated    by   Boone   because   the     language   in    the   body   of   the
                                         -8-
instruction used in the present case already requires the jury

find that Defendant possessed “guilty knowledge.”

       We recently addressed this same issue in State v. Coleman,

___ N.C. App. ___, 742 S.E.2d 346, disc. review denied, ___ N.C.

___, 752 S.E.2d 466-67 (2013).                 In Coleman, the defendant was

tried    and   convicted   on     charges      of   trafficking        in   heroin    by

possession and trafficking in heroin by transportation. ___ N.C.

App. at ___, 742 S.E.2d at 347.                Some of the evidence tended to

show that the defendant was carrying a box which he thought

contained only marijuana and cocaine, but that he did not know

that the box also contained heroine.                 Id. at ___, 742 S.E.2d at

349.      At    trial,   the     trial   court       instructed      the    jury,     in

pertinent part, that it must find that the defendant “knowingly

possessed heroin” and that the defendant “knowingly transported

heroin[,]” as stated in N.C.P.I. Crim. 260.17 and N.C.P.I. Crim.

260.30, respectively; however, the defendant failed to request

the    additional    footnote     jury    instructions.           On    appeal,      the

defendant contended that the trial court’s failure “to instruct

the    jury    in   accordance    with    the       pattern   jury      instructions

regarding circumstances where a defendant contends he did not

know the true identity of what he possessed” amounted to plain

error.    Id. at ___, 742 S.E.2d at 349, 351.                 This Court, after
                                           -9-
noting the nearly identical instructions in footnote 4 of either

N.C.P.I. Crim. 260.17 or N.C.P.I. Crim. 260.30, explained that

              Footnote   4   of  pattern   instructions   -
              criminal 260.17 and 260.30 advises the trial
              judge to further instruct the jury where
              defendant contends he did not know the
              identity of the substance. . . . Therefore,
              if given as proposed by defendant, the first
              sentence of pattern instruction-Crim. 260.17
              would   read   as   follows:   “First,   that
              defendant knowingly possessed heroin and
              defendant knew that what he possessed was
              heroin.” N.C.P.I.—Crim. 260.17 n.4.

Id. at ___, 742 S.E.2d at 349.                   The Court further stated that

“[i]f given as proposed by defendant, the first sentence of

pattern   instruction        -    Crim.    260.30     would   read    as    follows:

‘First,   that       defendant       knowingly       transported        heroin   and

defendant knew what he transported was heroin.’                      N.C.P.I.—Crim.

260.30 n.4.”      Id. at ___, 742 S.E.2d at 349, 349 n.4.                  The Court

held   that    the   trial       court’s   failure    to   give   the      additional

instructions in the footnotes was error.                Id. at ___, 742 S.E.2d

at 350.       In making its determination as to whether this error

amounted to plain error, the Coleman Court explained that

              [t]he record reflects that defendant’s sole
              defense to the charges of trafficking in
              heroin by possession and by transportation
              was that he did not know the box in his
              possession contained heroin . . . [and that
              the defendant’s guilty knowledge was] a
              question of fact for the jury. The closing
              arguments before the jury reveal that the
                                  -10-
            most significant issue presented to the jury
            was whether defendant knew that what he
            possessed was heroin.

Id.     After acknowledging that it is a rare case in which a

defendant on plain error review can show that an unpreserved

instruction error would merit reversal, this Court held that the

trial court’s errors amounted to plain error and awarded a new

trial even assuming arguendo that the “entire record reveals

overwhelming and uncontroverted evidence of guilt” because “the

trial    court’s   failure   to   give   an   additional      instruction

regarding    the   only   controverted   issue   at   trial    -   guilty

knowledge - had a probable impact on the jury verdict.”            Id. at

___, 742 S.E.2d at 351-52.

      Here, the record shows that the trial court instructed the

jury as to the first element of each charge pursuant to N.C.P.I

Criminal 260.15, 260.17, and 260.30 but did not include any of

the footnotes, as stated above.      Like the defendant in Coleman,

Defendant failed to request the additional instructions in the

footnotes   that he knew what he possessed or transported was

cocaine, so we must apply plain error review.         See N.C.R. App.

P. 10(a)(4); Steen, 352 N.C. at 269, 536 S.E.2d at 25-26.           Also,

like the defendant in Coleman, the issue of whether Defendant

knew that what he possessed was made a determinative issue at
                                     -11-
trial.   Defendant testified that he did not know the van he was

driving contained the bags of cocaine, he did not see the gift

bag in the van, and did not know the drugs were in the gift bag.

Defendant further testified that he only believed that he was in

possession of or transporting the ladders and painting supplies

that he saw in the back of the van.               Like Coleman, “[t]his

evidence made it necessary for the trial court to recognize the

evidence as amounting to a contention that defendant did not

know the true identity of what he possessed.”                ___ N.C. App at

___, 742 S.E.2d at 350.1            However, the trial court in error

failed to give the additional instructions in the footnotes of

each pattern jury instruction.         We are, therefore, compelled by

our   holding   in   Coleman   to    conclude   that   the    trial   court’s

failure to give the instructions contained in the footnotes was

error.

      As to whether this error rises to the level of plain error,

we are again compelled by our holding in Coleman in which this

1
     Even though it is not raised by either party, we note that
this Court recently distinguished Coleman in State v. Beam,
holding that the additional instruction in the footnote was not
needed because the defendant’s knowledge was not at issue.    __
N.C. App. __, __, 753 S.E.2d 232, 233 (2014). Unlike Defendant
here and the defendant in Coleman, the defendant in Beam did not
testify that he was confused about the identity of something he
was in possession of; but rather, he testified that he did not
know that the passenger in the vehicle he was driving was in
possession of illegal drugs. Id.
                                         -12-
Court    found    it    to   constitute       plain    error      not     to    give    the

instructions in the footnote.                 Like Coleman, even though there

was “overwhelming evidence” to support Defendant’s convictions –

e.g. the arranged drug deal with the informant and Defendant’s

admissions to the police investigators at the time of his arrest

-     Defendant’s      whole     defense       at    trial     was      that     he     was

transporting ladders in the van for a job and did not know

anything    about      the   cocaine    in    the    van,    making       the   issue   of

whether or not he knew what he was transporting or possessing

“the most significant issue [regarding his defense] presented to

the jury[.]”        See Coleman, ___ N.C. App. at ___, 742 S.E.2d at

350.     Contrary to the State’s argument, this Court in Coleman

completely       rejected      the    argument      that    the   instruction          “the

Defendant knowingly [possessed or transported]” was sufficient

when the defendant raised the issue of whether he was aware of

the     nature    of     what    he     was      transporting        or     possessing.

Accordingly, based on our holding in Coleman, we reverse the

convictions against Defendant and order that he be given a new

trial.

       NEW TRIAL.

Judge STROUD and Judge HUNTER, JR. concur.

Report Per Rule 30(e).
