Background
In early October 2019, a joint DEA and state law-enforcement operation wiretapped Jose Garcia and Juan Olmos, suspected drug traffickers. Intercepted communications revealed that an unidentified male customer was seeking kilograms of cocaine; Garcia advised that he had no cocaine but offered heroin. After the unknown male agreed and provided Garcia with a phone number, law enforcement identified that number as belonging to Crisprin Fair. Garcia then arranged for Olmos to make the delivery.
On October 8, 2019, Garcia contacted Fair to coordinate meeting logistics; Fair provided an address at a Compare Foods Supermarket in Greensboro. Olmos drove there under surveillance, met Fair in the parking lot, and handed Fair a laundry detergent box that had been opened and resealed with glue; Fair handed Olmos a balled-up bag in exchange. Officers stopped Fair’s vehicle immediately afterward and found 986.5 grams of heroin concealed in the box — the detergent had been partially poured out, a kilogram of heroin placed inside, then detergent poured back on top and the box resealed with hot glue or super glue.
Fair was convicted of trafficking in heroin by possession and by transportation following a September 2024 trial. He received two consecutive terms of 225–282 months. He did not testify or present any evidence at trial. On appeal, he argued the trial court plainly erred (all issues were unpreserved) by: (1) failing to give the guilty-knowledge jury instruction (footnote six of N.C.P.I.—Crim. 260.17 and 260.30); and (2) allowing DEA Agent Morgan to testify that Garcia and Olmos were arrested and charged as part of the investigation, even though neither testified at trial.
The Court’s Holding
The Court of Appeals (Murry, J., joined by Arrowood and Gore, JJ.) found no plain error on either ground.
Guilty-knowledge instruction. The offense of heroin trafficking by possession or transportation requires the State to prove that the defendant knowingly possessed or transported the substance with knowledge of its identity. See State v. Glover, 376 N.C. 420 (2020); State v. Miller, 369 N.C. 658 (2017). When the State makes a prima facie showing of trafficking, however, the law presumes that the defendant knew the identity of the substance. State v. Galaviz-Torres, 368 N.C. 44 (2015). In the absence of evidence placing the defendant’s knowledge in dispute, the trial court need not instruct the jury on the guilty-knowledge component.
The additional instruction is triggered only when the defendant “contends” that he lacked knowledge of the substance’s identity — i.e., when he denies knowing the charged substance was what it was. A defendant may make that contention directly (through his own testimony or evidence, as in State v. Lopez, 176 N.C. App. 538 (2006)) or indirectly (through the State’s own evidence that amounts to a contention of ignorance, as in State v. Coleman, 227 N.C. App. 354 (2013), where state video recordings showed the defendant repeatedly saying he thought the box contained marijuana and cocaine, not heroin). But the record must affirmatively show that the defendant contended he was confused or mistaken about the substance’s identity before the instruction is required.
Here, Fair presented no evidence and did not testify. He argued that two aspects of the State’s own evidence amounted to a contention of ignorance under Coleman: (1) DEA Agent Morgan’s testimony on cross-examination that Defendant’s intercepted communications did not use the word “heroin” or its street name “comida” or any other drug slang; and (2) Detective Cline’s testimony describing the resealed laundry detergent packaging. The court rejected both. Agent Morgan’s testimony established only that Fair’s communications contained no reference to controlled substances at all — not that Fair believed he was receiving something other than heroin. And the packaging testimony described the condition of the box at the time of seizure; neither witness testified that Fair was confused about the contents. Unlike Coleman, where the video recording conveyed the defendant’s stated belief that the substance was different from what was charged, here there was no evidence of any kind suggesting Fair thought the box contained something other than heroin.
Because Fair never contended a lack of guilty knowledge, the law presumed his knowledge and the trial court had no duty to give the additional instruction. There was no error, let alone plain error. In the alternative, even assuming error, the State presented substantial evidence of Fair’s actual knowledge — including testimony that he coordinated the transaction, knew the price differential between drug types, and had engaged in similar prior transactions — making it improbable the jury would have returned a different verdict.
Co-defendant arrest testimony. Fair argued the trial court plainly erred by allowing Agent Morgan to testify that Garcia and Olmos had been arrested and charged as part of the investigation, because neither testified and Fair had no opportunity to cross-examine them. The court acknowledged the general rule that evidence of a co-defendant’s conviction, guilty plea, or nolo contendere plea is inadmissible against a non-testifying defendant unless offered for a legitimate purpose. See State v. Batchelor, 157 N.C. App. 421 (2003). However, applying Batchelor and State v. Lyles, 172 N.C. App. 323 (2005), the court held that even if the testimony about arrests and pending charges was improper, it did not rise to plain error: the record contained no testimony that Garcia or Olmos had been found guilty, pled guilty, or entered any disposition adverse to Fair’s case. Evidence that co-defendants were merely charged is unlikely to cause a jury to infer the defendant’s own guilt, and it did not do so here given the substantial independent evidence against Fair.
Key Takeaways
- The additional guilty-knowledge instruction for heroin trafficking (N.C.P.I.—Crim. 260.17 n.6 / 260.30 n.6) is not automatically required; it is triggered only when the defendant contends that he did not know the identity of the controlled substance he possessed or transported, either through his own evidence or through State’s evidence that amounts to such a contention. State v. Galaviz-Torres, 368 N.C. 44 (2015); State v. Coleman, 227 N.C. App. 354 (2013).
- To trigger the instruction through the State’s own evidence under Coleman, there must be affirmative evidence that the defendant believed the substance to be something other than what he was charged with; evidence merely showing that the defendant’s communications used no drug terminology — without indicating he believed the substance was a different drug — does not amount to a contention of ignorance.
- A defendant who did not testify, presented no evidence, and made no statements to law enforcement identifying a mistaken belief about the substance’s identity has not contended lack of guilty knowledge and cannot claim plain error from the trial court’s failure to give the additional instruction.
- Testimony that a non-testifying co-defendant was arrested and charged as part of the same investigation does not rise to plain error where the record contains no evidence of conviction, guilty plea, or nolo contendere plea, because such testimony is unlikely to cause the jury to infer the defendant’s guilt. State v. Batchelor, 157 N.C. App. 421 (2003).
Why It Matters
For defense practitioners in North Carolina drug cases, State v. Fair clarifies the evidentiary threshold that must be crossed before a defendant becomes entitled to the additional guilty-knowledge instruction in trafficking prosecutions. The Coleman exception — that the instruction may be triggered by the State’s own evidence — requires more than an absence of drug terminology in intercepted communications; it requires affirmative evidence suggesting the defendant believed the substance to be something other than what is charged. Silence on the question of substance identity is not the same as a disputed claim of ignorance. Defendants seeking the guilty-knowledge instruction in trafficking cases must identify evidence that clearly conveys the belief that a different substance was involved, whether through their own testimony, police recordings, or prior statements.
The co-defendant evidence holding is a consistent application of Batchelor: the prejudice concern that makes co-defendant disposition evidence dangerous — that a jury will reason “if the co-defendant was convicted, this defendant must be guilty too” — simply does not arise from testimony that a co-defendant was charged and the charges remained pending. Practitioners confronting this issue should focus their objections on any evidence of conviction or plea, not on evidence of arrest or pending charges alone.