An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                                NO. COA14-442
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:    18 November 2014


STATE OF NORTH CAROLINA

      v.                                     Buncombe County
                                             No. 13 CRS 051036
JOSHUA WINKLER



      Appeal by Defendant from judgment entered 7 November 2013

by Judge Bill Coward in Superior Court, Buncombe County.                            Heard

in the Court of Appeals 25 September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Barry H. Bloch, for the State.

      Cooley Law       Office,        by   Craig   M.    Cooley,    for        Defendant–
      Appellant.


      McGEE, Chief Judge.


      Joshua    Winkler        (“Defendant”)         appeals      from     a     judgment

entered upon a jury verdict finding him guilty of conspiring to

traffic in opium or heroin by transporting in excess of four

grams   but    less    than    fourteen      grams      of   a   mixture       containing

Oxycodone,     which    is    a   Schedule II      controlled       substance       under

N.C. Gen. Stat. § 90-90(1)(a)(14).                 We vacate the trial court’s
                                         -2-
judgment.

    The evidence presented at trial tended to show that, in

January 2013,    Probation     and       Parole      Officer   Melissa     Whitson

(“Officer Whitson”) received information that Jamie Harris (“Mr.

Harris”),   a    probationer      under        her   supervision      through     the

Buncombe County Drug Treatment Court, was selling Oxycodone in

exchange for rides.         Officer Whitson contacted Mr. Harris on

16 January 2013 and requested that he visit her office.                         After

he arrived at the office, Mr. Harris was administered a drug

test, which yielded a positive result for Oxycodone.                       Officer

Whitson and two other officers then accompanied Mr. Harris to

83 Dix   Creek   Chapel    Road     in    Asheville,       North   Carolina      —   a

residence in which Mr. Harris had been staying “some” and to

which he would soon be permanently moving — in order to search

the residence.

    Upon    conducting      their    search,         the   officers    found    drug

paraphernalia, needles, a spoon with a partially melted pill,

tourniquets, and a firearm.          As Officer Whitson walked into the

living area to discuss some information with one of the other

officers at the scene, a mail carrier knocked at the door to

deliver a package.        The package was addressed to “Jamie Harris,

83 Dix Creek Chapel Road, Asheville, North Carolina 28806,” and

was sent from “J. Winkler, 1219 Everglades Avenue, Clearwater,
                                          -3-
Florida 33764.”          Mr. Harris “seemed nervous” when the package

arrived.       At the officers’ request, Mr. Harris consented to open

the    package    in     front    of   them.      Inside          the   package       was   an

unlabeled pill bottle that contained sixty pills and a tissue

“stuffed down” into the bottle.                  Mr. Harris was then arrested

and charged with trafficking in opium.                        The pills seized from

Mr. Harris’s residence were later tested by a forensic scientist

with the North Carolina State Crime Laboratory, who determined

that     the     pills     contained      Oxycodone,          a     Schedule II        opium

derivative.

       While     Mr.     Harris     was   in     jail,        Officer        Tammy    Bryson

(“Officer Bryson”) and another officer with the Asheville Police

Department         began         monitoring           Mr.      Harris’s            telephone

conversations.           Officer    Bryson      was    assigned         to   the     Buncombe

County     Anti-Crime       Taskforce      as     an        undercover       drug     agent.

Officer Bryson primarily investigated “drug diversion” cases —

cases in which legal drugs, e.g., prescription medications, were

used illegally or were used in a manner in which the medications

were not prescribed.               In a call recorded the day after Mr.

Harris’s arrest, the officers “heard the name ‘Josh’ come up”

and heard that he was “in town,” which prompted them to start

investigating whether “Josh” was the “J. Winkler” who had sent

the package of unlabeled pills to Mr. Harris.                                The officers
                                             -4-
learned that Defendant — Joshua Winkler — had a North Carolina

driver’s license with a Farmville, North Carolina address, as

well     as     a   Florida         driver’s        license.          After      conducting

surveillance of Mr. Harris’s residence for several days, Officer

Bryson observed a vehicle parked at Mr. Harris’s residence that

officers       determined           was    registered        to     Defendant        at     his

Farmville, North Carolina address.                     Defendant was seen leaving

Mr.    Harris’s       residence       on    28     January    2013,    and      an     officer

executed a stop of Defendant’s vehicle.

       Officer Bryson and another officer arrived at the scene and

asked Defendant to speak with them about the package he had sent

to    Mr.     Harris.         The    officers       escorted       Defendant      to      their

vehicle,      where     Defendant         joined    Officer       Bryson   in    the      front

seat.       After Officer Bryson advised Defendant of his rights,

Defendant executed a rights’ advisement form and consented to

speak with Officer Bryson and the other officer.

       Officer      Bryson      testified          that    Defendant       admitted        the

Oxycodone pills he sent to Mr. Harris through the mail belonged

to     Defendant,       and    that       Defendant       received     and      filled     his

prescription for the pills in Florida.                            According to Officer

Bryson, Defendant said he lived in Farmville, North Carolina,

but visited a doctor in Miami, Florida, to get his prescription

for     Oxycodone,        because          Defendant’s       local     North         Carolina
                                 -5-
physician was unwilling to prescribe Defendant Oxycodone due to

his probationary status that was said to have resulted from an

arrest for “doctor shopping.”1         Defendant told Officer Bryson

that Mr. Harris’s son was his grandson, and said that he was

returning to North Carolina from Florida to visit Mr. Harris’s

son and other grandchildren who lived in the area.             Defendant

also said he “did not want to travel with his pills on him,” so

he sent his pills through the mail to Mr. Harris’s address,

since Defendant was going to visit Mr. Harris’s residence to see

his grandson.

    Officer Bryson testified Defendant told her “he knew that

Mr. Harris did pills and sold pills.”          Officer Bryson further

testified that Defendant was unable to give her an answer as to

why he chose to send his Oxycodone pills to Mr. Harris “knowing

that [Mr. Harris] was a drug dealer and . . . used drugs and why

[Defendant] sent them to [Mr. Harris] in a plain pill bottle

with no label and tissue stuffed in it.”          Officer Bryson also

testified that Oxycodone pills were regularly the subject of

drug diversion cases, and that perpetrators of drug diversion

offenses   often   used   unlabeled    pill   bottles   to   deliver   or
1
  Officer Bryson described “doctor shopping” as an offense in
which someone obtains or seeks a prescription from a health care
practitioner while being supplied with another prescription by
another practitioner without disclosing the fact of the former
prescription to the practitioner from whom the subsequent
prescription is sought.
                                         -6-
transport the pills and wedged tissues into the bottles in order

to   keep   the      pills    from   rattling     around      inside    the   bottles.

Defendant also told Officer Bryson he thought he would arrive at

Mr. Harris’s residence before the pills did.                           Officer Bryson

then placed Defendant under arrest.

      Defendant was indicted for conspiring with Mr. Harris to

traffic in opium or heroin by transporting in excess of four

grams   but    less    than     fourteen      grams   of    a   mixture     containing

Oxycodone.      At trial, Defendant presented no evidence, and moved

to dismiss the charge at the close of the State’s evidence and

at the close of all of the evidence.                   Defendant’s motions were

denied.       Defendant was found guilty by a jury of the charged

offense,      and    was     sentenced   to   a   term     of   seventy to     ninety-

three months imprisonment.            Defendant appeals.

      Defendant first contends the trial court erred by denying

his motions to dismiss because the State presented insufficient

evidence      that    he     conspired   or   formed     an     agreement     with   Mr.

Harris to traffic in Oxycodone.               We agree.

      “Upon defendant’s motion for dismissal, the question for

the Court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator

of such offense.           If so, the motion is properly denied.”                State
                                                -7-
v.     Powell,    299 N.C.          95,     98,       261 S.E.2d      114,    117       (1980).

“Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”                                   State

v.    Smith,     300 N.C.         71,     78–79,       265 S.E.2d     164,    169       (1980).

“[A]ll of the evidence, whether competent or incompetent, must

be considered in the light most favorable to the [S]tate, and

the     [S]tate        is     entitled          to     every     reasonable         inference

therefrom.”       Id. at 78, 265 S.E.2d at 169.

       “A criminal conspiracy is an agreement between two or more

persons to do an unlawful act or to do a lawful act in an

unlawful way or by unlawful means.”                         State v. Bindyke, 288 N.C.

608, 615, 220 S.E.2d 521, 526 (1975).                         “As soon as the union of

wills for the unlawful purpose is perfected, the offense of

conspiracy is completed.”                  Id. at 616, 220 S.E.2d at 526.                   “To

constitute a conspiracy it is not necessary that the parties

should have come together and agreed in express terms to unite

for a common object.”               Id. at 615, 220 S.E.2d at 526.                      “Direct

proof    of    the     charge       is    not     essential,       for    such    is    rarely

obtainable.           It    may    be,    and     generally     is,      established      by   a

number of indefinite acts, each of which, standing alone, might

have     little       weight,       but,        taken       collectively,        they    point

unerringly       to    the        existence       of    a    conspiracy.”           State      v.

Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).
                                               -8-
       Nonetheless, “[w]hile a conspiracy may be established from

circumstantial evidence, there must be such evidence to prove

the    agreement          directly      or   such      a     state    of     facts    that    an

agreement may be legally inferred.”                          State v. Massey, 76 N.C.

App.    660,     662,          334 S.E.2d       71,     72     (1985);       see     State    v.

Worthington,          84 N.C.      App.        150,     162,     352 S.E.2d          695,    703

(“[E]vidence       tending        to    show    a     mutual,    implied       understanding

will suffice to withstand [a] defendant’s motion to dismiss.”),

disc.     review      denied,          319 N.C.       677,     356 S.E.2d       785    (1987).

“Conspiracies cannot be established by a mere suspicion, nor

does a mere relationship between the parties or association show

a conspiracy.             If the conspiracy is to be proved by inferences

drawn from the evidence, such evidence must point unerringly to

the existence of a conspiracy.”                       Massey, 76 N.C. App. at 662,

334 S.E.2d       at       72   (citation       omitted).             Thus,    “[t]o    hold     a

defendant liable for the substantive crime of conspiracy, the

State must prove an agreement to perform every element of the

crime.”     State v. Suggs, 117 N.C. App. 654, 661, 453 S.E.2d 211,

215    (1995).        Furthermore,           “[m]ere       passive     cognizance       of   the

crime or acquiescence in the conduct of others will not suffice

to    establish       a    conspiracy.          The     conspirator          must    share    the

purpose of committing [the] felony.”                         State v. Merrill, 138 N.C.

App. 215, 221, 530 S.E.2d 608, 612 (2000) (second alteration in
                                            -9-
original) (internal quotation marks omitted).

       N.C.   Gen.    Stat.       § 90-95(h)(4)(a)            provides,     in    relevant

part, that any person who “delivers, transports, or possesses

four grams or more of opium or opiate, or any salt, compound,

derivative, or preparation of opium or opiate[,] . . . or any

mixture containing such substance, shall be guilty of a felony

which    felony      shall    be     known       as     ‘trafficking       in    opium    or

heroin,’” N.C. Gen. Stat. § 90-95(h)(4)(a) (2013), and punished

as a Class F felon “if the quantity of such controlled substance

or mixture involved . . . [i]s four grams or more, but less than

14 grams.”     Id.

       Defendant     argues       that    the     evidence         was   insufficient    to

prove that he and Mr. Harris formed an agreement to traffic in

Oxycodone.         While     we    recognize          that    a     conspiracy    may     be

established by circumstantial evidence and that direct proof of

an agreement is not essential to sustaining a conviction of

conspiring to commit an offense, even when viewed in the light

most    favorable     to   the     State,       we    are    not    persuaded    that    the

evidence      in   the     present       case        “point[s]      unerringly    to     the

existence of a conspiracy.”                  See Whiteside, 204 N.C. at 712,

169 S.E. at 712.         Here, the parties do not dispute that there is

no direct evidence that Defendant conspired with Mr. Harris to

traffic in Oxycodone.             Rather, the evidence shows the following:
                                    -10-
that Defendant admitted to Officer Bryson that he mailed sixty

Oxycodone pills to Mr. Harris; that Defendant sent the pills in

an unlabeled pill bottle with a tissue “stuffed down” into the

bottle; that Defendant “knew that Mr. Harris did pills and sold

pills;” that Mr. Harris’s probation officer, Officer Whitson,

received a tip that Mr. Harris was currently trafficking in

Oxycodone; and that, when the mail carrier delivered the package

sent by Defendant to Mr. Harris’s residence at the precise time

officers were conducting a warrantless search of Mr. Harris’s

residence, Mr. Harris “seemed nervous.”

      Our    appellate     courts     have        long     recognized      that

“[c]ircumstantial    evidence   may    be    of    two    kinds,    consisting

either of a number of consecutive links, each depending upon the

other; or a number of independent circumstances all pointing in

the   same   direction.”     State    v.    Austin,      129 N.C.   534,   535,

40 S.E. 4, 5 (1901).       “In the former case it is said that each

link must be complete in itself, and that the resulting chain

cannot be stronger than its weakest link.”               Id.   “In the latter

case the individual circumstances are compared to the strands in

a rope, where no one of them may be sufficient in itself, but

all together may be strong enough to prove the guilt of the

defendant beyond a reasonable doubt.”              Id.     While it appears

that a reasonable inference could be drawn from the evidence in
                                           -11-
the present case that Defendant’s actions were violative of N.C.

Gen. Stat. § 90-95(h)(4)(a), whether viewed as links in a chain

or strands in a rope, we cannot conclude that a jury could

reasonably infer from this same evidence that Defendant and Mr.

Harris formed an agreement or conspired to traffic in Oxycodone.

Although the evidence demonstrates that Defendant and Mr. Harris

had a relationship, “a mere relationship between the parties or

association [does not] show a conspiracy.”                          See Massey, 76 N.C.

App. at 662, 334 S.E.2d at 72.                  Again, even “cognizance of the

crime   or    acquiescence         in    the   conduct”        of   another   “will     not

suffice to establish a conspiracy.”                      Merrill, 138 N.C. App. at

221, 530 S.E.2d at 612.                  Thus, while there may be sufficient

evidence of Mr. Harris’s knowledge of Defendant’s actions, we

cannot say that there was sufficient evidence that Mr. Harris

“share[d] the purpose of committing [the] felony.”                                 See id.

(second      alteration       in    original)       (internal          quotation     marks

omitted).       Without more, we cannot conclude that the State’s

evidence directly or indirectly established a union of wills

between      Defendant     and     Mr.    Harris    to    conspire      to    traffic    in

Oxycodone.       Accordingly, we vacate the trial court’s judgment

entered   upon       the   jury’s       verdict    finding      Defendant      guilty    of

conspiring      to    traffic      in    Oxycodone       by    transportation.          Our

disposition      on    this   issue       renders    it       unnecessary     to   address
                              -12-
Defendant’s remaining issue on appeal and we decline to do so.

    Vacated.

    Judges GEER and STROUD concur.

    Report per Rule 30(e).
