An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 ninetythree 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).