Summary
finding insufficient evidence of keeping or maintaining a vehicle, where "the vehicle driven by [d]efendant was owned by another person and loaned to him on the day he was pulled over and searched. No evidence was presented that [d]efendant used this vehicle on any other occasion to keep a controlled substance"
Summary of this case from State v. RogersOpinion
No. 07-771.
Filed March 4, 2008.
Wilkes County No. 06CRS1778, 06CRS50757-58.
Appeal by Defendant from judgments entered 18 January 2007 by Judge Judson D. Deramus, Jr. in Wilkes County Superior Court. Heard in the Court of Appeals 25 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State. Jonathan L. Megerian, for Defendant.
After a jury trial, Michael Anthony Horton (Defendant) was convicted of trafficking in cocaine by possession of 28 grams or more, keeping or maintaining a vehicle for keeping a controlled substance, simple felonious possession of cocaine, misdemeanor possession of marijuana, and driving while license revoked. Defendant was also found to have attained habitual felon status. From the judgments entered upon his convictions, Defendant appeals and raises the sole issue that the trial court erred by denying his motion to dismiss the charge of keeping or maintaining a vehicle for keeping a controlled substance for lack of sufficient evidence. For the reasons stated herein, we reverse. Evidence at trial tends to show that on the night of 7 February 2006, Defendant was pulled over by Deputy Scott Bailey for driving without headlights. Sergeant James Minton and Deputy Craig Dancy each pulled up in their respective cars to assist. Deputy Bailey testified that Defendant seemed "extremely nervous" during the stop. Defendant got out of the car and explained that a fuse in his car had blown, and he tried to get the officers to look under the hood of the car. Deputy Bailey asked Defendant for his driver's license and requested Defendant to empty his pockets. Defendant did not have a license, but he handed over an identification card, and emptied his pockets of a cell phone and $344 in cash. Deputy Bailey asked if he could search the car, and Defendant consented. Brandi Wingler was the only passenger in the car, and upon request, she stepped out of the car, emptied her pockets, and indicated she did not have any contraband.
While Deputy Bailey went to his patrol car to clear a space in the passenger seat for Defendant to wait there, Deputy Dancy began searching the vehicle. Defendant was standing at the front of Deputy Bailey's car. Deputy Dancy came around defendant's vehicle holding a donut bag or box, and defendant immediately took off running across the street and into a wooded area. All three officers chased Defendant but could not locate him. The donut bag contained cocaine and marijuana in separate plastic bags.
Defendant's evidence consisted of testimony from his wife Jessica Horton, from whom he is separated. Mrs. Horton testified that the car belonged to her, that she had loaned the car to afriend that day, who in turn allowed Defendant to use it. She also stated that the drugs in the car were hers.
Defendant moved to dismiss all the charges at the close of the State's evidence and again at the close of all the evidence. The trial court denied the motions. After the jury reached its verdicts, the trial court sentenced Defendant as a Class C habitual felon on each of the two felony convictions. The court imposed consecutive sentences of 130 to 165 months for the conviction of maintaining and keeping a vehicle for keeping a controlled substance, and 135 to 171 months for the trafficking in cocaine conviction. The court also sentenced defendant to 120 days on the misdemeanor charges.
Defendant argues the State failed to present sufficient evidence that defendant kept or maintained the car for the purpose of keeping a controlled substance. He cites to State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994) and State v. Dickerson, 152 N.C. App. 714, 568 S.E.2d 281 (2002) in support of his argument. The State concedes it is unable to distinguish these cases from the instant case and they are therefore controlling.
In deciding a motion to dismiss for lack of sufficiency of evidence, the evidence must be viewed in the light most favorable to the State, including all reasonable inferences to be drawn therefrom. State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).
Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal of the case. Id. Substantial evidence must be presented as to each element of the offense charged. Id. at 595, 573 S.E.2d at 868. Substantial evidence means "`such relevant evidence as a reasonable mind might accept as adequate to support a conviction.'" State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000) (quoting State v. Jacobs, 128 N.C. App. 559, 563, 495 S.E.2d 757, 760-61 (1998)).
The issue raised by Defendant regarding the offense of keeping or maintaining a vehicle for the sale or use of a controlled substance was discussed by this Court in Dickerson:
Pursuant to N.C. Gen. Stat. § 90-108(a)(7), it is illegal to "knowingly keep or maintain any . . . vehicle . . . which is used for the keeping or selling of [controlled substances]." N.C. Gen. Stat. § 90-108(a)(7) [2005]. The statute thus prohibits the keeping or maintaining of a vehicle only when it is used for "keeping or selling" controlled substances. As stated by our Supreme Court in State v. Mitchell, the word "`keep' . . . denotes not just possession, but possession that occurs over a duration of time." State v. Mitchell, 336 N.C. 22, 32, 442 S.E.2d 24, 30 (1994). Thus, the fact "[t]hat an individual within a vehicle possesses marijuana on one occasion cannot establish . . . the vehicle is `used for keeping' marijuana; nor can one marijuana cigarette found within the car establish that element." Id. at 33, 442 S.E.2d at 30.
Dickerson, 152 N.C. App. at 716, 568 S.E.2d at 282. In Dickerson, this Court held that "the fact that a defendant was in his vehicle on one occasion when he sold a controlled substance does not by itself demonstrate the vehicle was kept or maintained to sell a controlled substance." Id. The elements of section 90-108(a)(7) for purposes of this appeal have not changed since this Court's opinion in Dickerson. Here, the vehicle driven by Defendant was owned by another person and loaned to him on the day he was pulled over and searched. No evidence was presented that Defendant used this vehicle on any other occasion to keep a controlled substance. As in Dickerson and Mitchell, the fact that Defendant was found to be in possession of drugs in the vehicle on one occasion does not permit a finding that he was "keeping" the car for the purpose of using or keeping a controlled substance.
Viewing the evidence in the light most favorable to the State, the State failed to present sufficient evidence of this offense. The trial court therefore erred in denying Defendant's motion to dismiss that charge, and we reverse defendant's judgment and commitment for keeping and maintaining a vehicle for keeping a controlled substance.
Defendant has not argued his remaining assignments of error listed in the record on appeal; therefore, they are deemed abandoned.
N.C.R. App. P. 28(b)(6).
Reversed in part, no error in part.
Judges MCGEE and STROUD concur.
Report per Rule 30(e).