Opinion
No. COA02-1523
Filed 7 October 2003 This case not for publication
Appeal by defendant from judgment entered 6 September 2002 by Judge D. Jack Hooks, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 15 September 2003.
Roy Cooper, Attorney General, by Douglas A. Johnston, Special Deputy Attorney General, for the State. Geoffrey W. Hosford for defendant-appellant.
Columbus County No. 01 CRS 53343.
Defendant, Armando Uribe, appeals a conviction for felony maintaining a place to keep and sell controlled substances. For the reasons discussed herein, we find no error.
The State's evidence tended to show that Detective Richard Blackwell of the Columbus County Sheriff's Department received a tip from a confidential and reliable informant that a man was selling marijuana at a single-wide mobile home located at 144 Horne Street in Fair Bluff. On 27 September 2001, Detective Blackwell went to the mobile home. He knocked on the front door, but no one answered. Blackwell walked to the back of the home, where he noticed a path behind a shed. He walked down the path into knee-high weeds and saw marijuana plants growing in a sandy area cleared out among the weeds.
After obtaining a search warrant, Blackwell and other officers returned to the residence. They found two males (Gutierrez and Everado), money, a set of scales, clear plastic bags, bags of marijuana, and rolling papers. In the storage shed, they found a marijuana plant. The officers also found a work identification card bearing the name "Armando." Other documents were found in the residence, including utility bills, vehicle tax notices, and tax receipts, bearing the names of "Castro Armando Fernandez" and "Armando Uribe."
After searching the home, officers went to a local construction company. They found defendant at work and arrested him. Gutierrez and Everado were also arrested and charged with drug offenses. Defendant told the arresting officer that his current address was 144 Horne Street in Fair Bluff. Defendant was charged with the felony of maintaining a place to keep and sell controlled substances, possession with intent to sell and deliver marijuana, possession of drug paraphernalia, and manufacturing marijuana.
Defendant's evidence tended to show that at the time of the search, defendant was living with Helen Buffkin in South Carolina and was not staying overnight at the trailer where the marijuana was found. He claimed that he sublet his trailer to Gutierrez and Everado, who were there when it was searched.
Defendant was convicted only of the felony of maintaining a place to keep and sell controlled substances by a jury and received a sentence of six to eight months, which was suspended by the trial court. One of the conditions of probation was that defendant serve fifteen days in the Columbus County jail. Defendant appeals.
In his first assignment of error, defendant argues that the trial court erred in denying his motion to dismiss. We disagree.
In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L.Ed.2d 1080 (1996). Contradictions and discrepancies in the evidence are resolved in favor of the State. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001).
Under North Carolina law, it is unlawful for any person:
To knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article[.]
N.C. Gen. Stat. § 90-108(a)(7) (2001). This offense is a misdemeanor unless the State alleges and proves that the violation was committed intentionally, in which case the offense is a Class I felony. N.C. Gen. Stat. § 90-108(b) (2001). In this case, defendant was convicted of a felony.
Defendant concedes that he regularly paid the rent on the trailer and that the utility accounts were in his name. Such circumstantial evidence is relevant to the charge of maintaining a building for the purpose of keeping or selling a controlled substance. See State v. Alston, 91 N.C. App. 707, 711, 373 S.E.2d 306, 310 (1988). However, defendant argues that the State did not show substantial evidence that defendant knowingly permitted the presence or sale of marijuana in his home.
"A person knows of an activity if he is aware of a high probability of its existence." State v. Bright, 78 N.C. App. 239,243, 337 S.E.2d 87, 89 (1985), disc. rev. denied, 315 N.C. 591, 341 S.E.2d 31 (1986). In State v. Alston, 91 N.C. App. at 711, 373 S.E.2d at 310, this Court noted that section 90-108(a)(7) "does not require residence, but permits a conviction if a defendant merely keeps or maintains a building for the purpose of keeping or selling controlled substances."
In State v. Kelly, 120 N.C. App. 821, 463 S.E.2d 812 (1995), this Court found sufficient evidence for the charge of maintaining a place to keep and sell controlled substances where the defendant possessed and used a key to the house, a letter addressed to the defendant at that address was found in the master bedroom, drugs and paraphernalia were found at the location, and the defendant listed the location as his address after he was arrested. See also Alston, 91 N.C. App. at 707, 373 S.E.2d at 306 (holding that evidence of drug activity at a building during the time defendant was paying rent was relevant to the charge against defendant under section 90-108(a)(7)).
The evidence presented at trial shows that defendant paid the rent for the trailer, even though he contended that the property was sublet to two other persons. He used the address of the trailer for employment purposes, and a work identification card bearing defendant's name was found on the premises. A water utility bill for the Town of Fair Bluff addressed to defendant was found inside the trailer. Officers also found a vehicle tax bill and Columbus County tax receipt addressed to "Castro Armando Fernandez." At the time of his arrest, defendant had a South Carolina driver's license in the name of "Castro Armando Fernandez." Defendant also told the officer who arrested him that his current address was 144 Horne Street in Fair Bluff. During their search of the mobile home and surrounding premises, officers found marijuana plants, money, scales, plastic bags, bags of marijuana, and rolling papers.
In considering this evidence in the light most favorable to the State, we hold that there is substantial evidence that defendant knowingly and intentionally maintained a residence used to keep or sell marijuana in violation of N.C. Gen. Stat. § 90-108(a)(7). This assignment of error is without merit.
In his second assignment of error, defendant argues that the trial court erred in denying his pretrial motion to suppress evidence found when Detective Blackwell went to his residence without a search warrant. However, a pretrial motion to suppress is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial. See State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001). Because defendant failed to object to the evidence at the time it was offered at trial, this issue was not properly preserved for appellate review. Id. Therefore, we do not address this argument on its merits.
In his third assignment of error, defendant argues that the trial court erred in denying his motion to reveal the identity of the informant. We disagree.
The State is privileged to withhold the identity of a confidential informant unless the disclosure is relevant and helpful to the defense or essential to a fair trial. Roviaro v. United States, 353 U.S. 53, 60-61, 1 L.Ed.2d 639, 645 (1957); State v. Newkirk, 73 N.C. App. 83, 85-86, 325 S.E.2d 518, 520, disc. rev. denied, 313 N.C. 608, 332 S.E.2d 81 (1985). In State v. Gilchrist, 71 N.C. App. 180, 182, 321 S.E.2d 445, 447-48 (1984), disc. rev. denied, 313 N.C. 332, 327 S.E.2d 894 (1985), this Court held that:
A defendant must make a sufficient showing that the particular circumstances of his case mandate disclosure before the identity of a confidential informant must be revealed. State v. Watson, 303 N.C. 533, 279 S.E.2d 580 (1981). When the defendant fails to make a sufficient showing of need to justify disclosure of the informant's identity he acquires no greater rights to compel disclosure of details about the informant than he initially had. State v. Beam, 45 N.C. App. 82, 262 S.E.2d 350 (1980).
In the instant case, defendant has not established that the informant's identity was relevant to his defense or essential to a fair determination of his case. Defendant contends that the identity of the confidential informant was essential to his defense because the informant could confirm exactly who was selling drugs at 144 Horne Street. However, defendant was not convicted of selling drugs, but of maintaining a place to keep and sell controlled substances. For the purposes of this offense, it is immaterial who was selling drugs at the location in question. The State only had to prove that defendant knowingly or intentionally maintained the mobile home to keep or sell marijuana, not that defendant himself actually sold marijuana from the mobile home. See N.C. Gen. Stat. § 90-108(a)(7). This assignment of error is without merit.
In defendant's final assignment of error, he argues that the trial court erred in denying his motion to dismiss for selective prosecution. We disagree.
Defendant contends that he was singled out for selective prosecution because the State allowed his codefendant, Jurado Everado, to enter a plea to misdemeanor maintaining a dwelling. Prior to the trial of defendant's case, he was offered a plea bargain by the State to plead guilty to a felony and receive regular supervised probation. Defendant contends that Everado received a more favorable plea offer because Everado's attorney was married to an assistant district attorney for Columbus County.
Selective prosecution is a defense as to which the defendant has the burden of proof. See State v. Howard, 78 N.C. App. 262, 266, 337 S.E.2d 598, 601 (1985) , disc. rev. denied, 316 N.C. 198, 341 S.E.2d 581 (1986). In order to meet this burden the defendant must satisfy a two-part test: (1) the defendant must make a prima facie showing that he has been singled out for prosecution while others similarly situated have not; and (2) the defendant must demonstrate that the discriminatory selection for prosecution was invidious and done in bad faith, resting upon impermissible considerations such as race, religion, or the desire to prevent his exercise of constitutional rights. Id. at 266-67, 337 S.E.2d at 601-02.
We do not discuss the first prong of the Howard test because we conclude the plaintiff did not meet his burden of proof on the second prong. All of the evidence before the trial court indicated that the assistant district attorney who was married to Everado's attorney had no involvement in the plea offer that was extended to Everado. "A defendant must show more than simply that discretion has been exercised in the application of a law resulting in unequal treatment among individuals. He must show that in the exercise of that discretion there has been intentional or deliberate discrimination by design." State v. Spicer, 299 N.C. 309, 312, 261 S.E.2d 893, 896 (1980). District attorneys have wide discretion in performing their duties. Id. at 311, 261 S.E.2d at 895. Even in cases involving codefendants, there may be facts and circumstances that merit disparate treatment for defendants. See id. at 311-12, 261 S.E.2d at 895-96. Only when the conduct is invidious and in bad faith can a defense of selective prosecution be maintained. See Howard, 78 N.C. App. at 266, 337 S.E.2d 598 at 602. There was no evidence before the trial court to support such a claim.
Defendant has failed to meet his burden of showing selective prosecution. The trial court correctly denied the defendant's motion to dismiss on that ground. This assignment of error is without merit.
NO ERROR.
Chief Judge EAGLES and Judge McCULLOUGH concur.
Report per Rule 30(e).