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State of Idaho v. Gabriel Carlos Herrera Aka Luis Montes Garcia

January 6, 2009


Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.

The opinion of the court was delivered by: Lansing, Chief Judge

2009 Opinion No. 1

Stephen W. Kenyon, Clerk

Judgments of conviction for conspiracy to traffic in heroin and for delivery of cocaine, affirmed.

Gabriel Carlos Herrera and Felipe De Jesus Oernelas-Perez were charged with conspiracy to traffic in heroin and conspiracy to traffic in cocaine. After a jury trial, they were convicted of conspiracy to traffic in heroin and the lesser offense of delivery of cocaine. In this consolidated appeal, Herrera and Oernelas-Perez contend that there was not sufficient evidence to support either the jury's instruction or the jury's finding as to the amount of heroin involved in the heroin trafficking charge, that the court improperly entered a conviction on the uncharged crime of delivery of cocaine, and that their rights were violated when they were required to share a single interpreter during the final day of their trial. We find no reversible error.


The following facts are drawn from the State's evidence at trial. Tyna Brown, a woman whose drug-dealing husband had recently been incarcerated, decided to continue operating her husband's "business." She began making daily purchases of cocaine and heroin from John Davis in late May of 2005. Davis acquired the drugs from Herrera and Oernelas-Perez (hereinafter "the defendants"). After purchasing from Davis, Brown would retain some of the drugs for her own use and sell the remainder to her husband's former customers. According to Brown's and Davis's trial testimony, daily purchases during that period generally ranged from thirty to sixty balloons of heroin, each containing .1 grams of the drug, and a similar or somewhat lesser amount of cocaine. On August 22, 2005, Brown was arrested and was asked if she would cooperate with police by making a controlled purchase from Davis. Hoping for leniency, she agreed. On the same day, the police gave Brown $1,000, which she took to Davis's house to make a purchase. While she was there, the defendants arrived to deliver the drugs and pick up their money. The defendants told Davis they did not have all the drugs requested, but would deliver the balance later. They were arrested before they could do so. The defendants had delivered fifty-two balloons of heroin and five balloons of cocaine in this controlled buy, though approximately sixty-three balloons of heroin and seven balloons of cocaine had been requested by Brown. Of the drugs that Brown received, thirty of the heroin balloons and three of the cocaine balloons were tested by law enforcement. The tested heroin totaled 2.8 grams and the tested cocaine totaled .41 grams. These weights roughly corroborated the testimony that each balloon purchased over the three-month period preceding August 22 generally contained about .1 grams of the relevant controlled substance.

The defendants were eventually charged with conspiring to traffic in heroin and conspiring to traffic in cocaine during a period between May 23 and August 22, 2005, Idaho Code §§ 37-2732B(a)(6), -2732B(b), -2732B(a)(2). Brown and Davis, who were similarly charged, entered into plea agreements, and testified for the State at the defendants' trial.

The jury was instructed on the charged conspiracy offenses and on several lesser crimes that were deemed to be included offenses. The special verdict forms required the jury to indicate the quantity of each substance they found to have been involved in each conspiracy. The jury's answers on special verdict forms found the defendants guilty of conspiring to traffic in heroin involving at least 7 but less than 28 grams, conspiring to traffic in cocaine involving less than 28 grams, and a lesser offense of delivering cocaine. Because the offense of conspiracy to traffic in cocaine requires that the conspiracy involve at least 28 grams, the district court did not enter judgments of conviction against the defendants for that charged offense but entered convictions for delivery of cocaine.

The defendants appeal, asserting insufficiency of the evidence to support the heroin conspiracy conviction, error in entering a conviction for delivery of cocaine, and error in proceeding with the trial on one day when only a single interpreter was available to translate for both defendants.


A. Sufficiency of the Evidence of Conspiracy to Traffic in Heroin

We first consider the defendants' argument that the evidence is insufficient to support the

jury's verdict finding them guilty of conspiracy to traffic in heroin. The defendants were charged with reference to section 37-2732B(a)(6) of the Idaho Code, which states that anyone who knowingly "manufactures, delivers or brings into this state, or who is knowingly in actual or constructive possession" of two or more grams of heroin or certain related substances or mixtures is guilty of trafficking in heroin. Though trafficking in heroin requires only two grams, the penalty for trafficking or conspiring to traffic is higher if the amount is at least 7 but less than 28 grams, and higher still for 28 grams or more. I.C. § 37-2732B. One conspires to traffic in heroin when he or she "agrees, conspires, combines, or confederates with another person or solicits another person" to traffic in heroin, and can be punished as though he or she had actually trafficked. I.C. § 37-2732B(b). The defendants' challenge to the verdict hinges upon the amount of heroin that the jury found to be involved in the conspiracy. They contend that the trial evidence does not support the finding of a conspiracy to traffic in at least 7 but less than 28 grams of heroin.

It is axiomatic that in an appeal from a judgment entered on a jury verdict, we will not set aside the verdict if it is supported by substantial and competent evidence. State v. Clayton, 101 Idaho 15, 16, 607 P.2d 1069, 1070 (1980); State v. Gerdau, 96 Idaho 516, 518, 531 P.2d 1161, 1163 (1975); State v. Beebe, 145 Idaho 570, 573, 181 P.3d 496, 499 (Ct. App. 2007). Evidence is sufficient to sustain a conviction if it would allow a rational trier of fact to conclude that the defendant's guilt as to each material element has been proved beyond a reasonable doubt. State v. Matthews, 124 Idaho 806, 813, 864 P.2d 644, 651 (Ct. App. 1993). Substantial evidence does not mean that the evidence need be uncontradicted:

All that is required is that the evidence be of sufficient quantity and probative value that reasonable minds could conclude that the verdict of the jury was proper. It is not necessary that the evidence be of such quantity or quality that reasonable minds must conclude, only that they could conclude.

Mann v. Safeway Stores, Inc., 95 Idaho 732, 736, 518 P.2d 1194, 1198 (1974) (emphasis added).

The State's witnesses testified that the defendants had delivered to Brown an average of thirty to sixty .1 gram "balloons" of heroin every day for a period of approximately three months between the arrest of Brown's husband in May and the August 22, 2005, controlled buy. The amounts in the balloons purchased under police supervision on August 22 roughly coincided with the approximations given for the daily buys over that three-month period. These testimonial estimations would have supported a finding that several hundred grams of heroin had been trafficked during the three months encompassed in the indictment. The defendants concede that this evidence was sufficient for a jury to reasonably find that the conspiracy involved 28 or more grams of heroin. They maintain, however, that because the trial evidence showed only deliveries cumulating to more than 28 grams, it cannot support the jury's finding that the conspiracy to traffic in heroin involved less than 28 grams.

We disagree. As the State points out, evidence of a conspiracy to traffic in more than 28 grams intrinsically supports a finding of a conspiracy to traffic in less than that amount, for one cannot deal in more than twenty-eight items without dealing in the lesser numbers leading up to that sum. A jury could reasonably find that the State met its burden to prove beyond a reasonable doubt that the conspiracy involved at least 7 grams while not being convinced beyond a reasonable doubt that the amount was 28 grams or more. As in stories about the fish that got away, where a listener may believe the fugitive trout was at least twelve inches long but not be convinced of the claimed eighteen, it is reasonable for a jury to unanimously find beyond a reasonable doubt that at least 7 but less than 28 grams were involved in a conspiracy even if the same unanimity does not exist as to a larger amount. This is especially so given that the witnesses who testified to the amount distributed gave estimations based on their memory as to what usually happened and also given that these witnesses' estimations did not precisely coincide.

The defendants also assert that the district court should not have instructed on conspiracy to traffic in heroin involving fewer than 28 grams because the evidence would not support such an instruction.*fn1 We reject this argument for the same reasons just ...

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