Opinion
No. COA07-43.
Filed February 19, 2008.
Pitt County No. 04 CRS 051141.
Appeal by defendant from judgment entered on or about 22 June 2006 by Judge Quentin T. Sumner in Pitt County Superior Court. Heard in the Court of Appeals 10 September 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Ebony J. Pittman, for the State. Winifred H. Dillon, for defendant-appellant.
Defendant Damon James Mullins appeals from judgment entered upon a jury verdict finding him guilty of knowingly keeping and maintaining a building for keeping and selling controlled substances, possessing cocaine with the intent to sell and deliver, and possession of drug paraphernalia. Defendant contends that the trial court erred by denying his motion to dismiss all of the charges on the basis of insufficient evidence. For the following reasons, we conclude that the trial court did not err when it denied defendant's motion to dismiss the charge of knowingly keeping and maintaining a building for keeping and selling controlled substances, but conclude that the trial court did err when it denied defendant's motion to dismiss the charges of possessing cocaine with the intent to sell and deliver, and possession of drug paraphernalia.
I. Background
The evidence in the record tends to show the following: Defendant and his girlfriend resided at an apartment located in Building 590, Apartment 8, South Haven Drive, Greenville, Pitt County. A police informant purchased cocaine from defendant at that apartment on two separate occasions. The first purchase was on an undisclosed date, the second "about a week before 5 February 2004." On the basis of those purchases, Officer Wright of the Greenville Police Department obtained a search warrant on 5 February 2004. Officer Wright, along with several other officers, searched the apartment at a time when no one was present. During the search, police discovered cocaine and drug paraphernalia in a dresser drawer, plus cash and paperwork bearing the name of defendant's girlfriend. During the search, defendant's girlfriend's sister arrived at the apartment. She called defendant's girlfriend, who came to the apartment and phoned defendant at the request of law enforcement. Defendant approached the apartment complex while police were still present, stopped his car about a block away and got out. He then sat down in the middle of the street, where he was arrested. The officers then escorted defendant to the apartment and told him what they had found. Defendant said that the items the police found were not his and that he and his girlfriend had just moved there recently. On 25 July 2005, the Pitt County Grand Jury indicted defendant for knowingly and intentionally keeping and maintaining a dwelling for the purpose of keeping and/or selling a controlled substance, in violation of N.C. Gen. Stat. § 90-108(a)(7), possessing cocaine with the intent to sell and deliver, in violation of N.C. Gen. Stat. § 90-95, and possession of drug paraphernalia with the intent to use, in violation of N.C. Gen. Stat. § 90-113.22. Defendant was tried before a jury in Superior Court, Pitt County, on 22 June 2006.
The jury found defendant guilty of: knowingly keeping and maintaining a building for keeping and selling controlled substances, possessing cocaine with the intent to sell and deliver (PWISD), and possession of drug paraphernalia. Upon the jury verdict, the trial court sentenced defendant to 10 to 12 months imprisonment. Defendant appeals.
II. Analysis
On appeal, defendant contends that the trial court erred when it denied his motions to dismiss the charges of knowingly keeping and maintaining a building for keeping and selling controlled substances, of possessing cocaine with the intent to sell and deliver, and of possession of drug paraphernalia.
N.C. Gen. Stat. § 15A-1227 (2005) allows a defendant to move to dismiss a criminal charge when the evidence is not sufficient to sustain a conviction. Evidence is sufficient to sustain a conviction when, viewed in the light most favorable to the State and giving the State every reasonable inference therefrom, there is substantial evidence to support a jury finding of each essential element of the offense charged, and of defendant's being the perpetrator of such offense. The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo. State v. Bagley, ___ N.C. App. ___, ___, 644 S.E.2d 615, 621 (2007) (internal citations and quotations omitted). Where the evidence is not substantial, but "is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion [to dismiss] should be allowed . . . even [if] the suspicion so aroused by the evidence is strong." State v. Hamilton, 145 N.C. App. 152, 155, 549 S.E.2d 233, 235 (2001) (citation and quotation marks omitted).
A. Keeping and Maintaining a Dwelling.
The essential elements of violation of N.C. Gen. Stat. § 90-108(a)(7) relevant to the case sub judice are (1) knowingly (2) keeping or maintaining (3) a building (4) which is used for the keeping or selling (5) of controlled substances. N.C. Gen. Stat. § 90-108(a)(7) (2003).
Defendant contends that his motion to dismiss should have been granted for the charge of violating N.C. Gen. Stat. § 90-108(a)(7), because the State did not present sufficient evidence of the second element, keeping or maintaining. Defendant argues that this case is indistinguishable from State v. Hamilton, where this Court held that the following evidence, viewed in the light most favorable to the State, was not sufficient to support a charge of violating N.C. Gen. Stat. § 90-108(a)(7): Detective Huff . . . observed defendant coming and going from the apartment [at 211 Ashe Avenue where the cocaine was found] on several occasions during the day and night. . . . The apartment was leased to . . . defendant's girlfriend. . . . [T]hree vehicles registered to [the defendant's girlfriend] were regularly parked in front of the residence. Two of the vehicles, a motorcycle and one car, were used regularly by defendant.
. . . [Law enforcement] stopped defendant as he was leaving the apartment complex. . . .
. . . [A] traffic citation [was later discovered] with defendant's name on it listing defendant's address as "211 Ashe Street."
145 N.C. App. at 153-54, 549 S.E.2d at 234-35. We disagree.
While this Court's precedents have held that mere occupancy is not sufficient to support the element of keeping or maintaining within the meaning of N.C. Gen. Stat. § 90-108(a)(7), State v. Kraus, 147 N.C. App. 766, 768-69, 557 S.E.2d 144, 147 (2001), residency standing alone is sufficient to support a jury verdict on that element, State v. Rosario, 93 N.C. App. 627, 638, 379 S.E.2d 434, 440, disc. review denied, 325 N.C. 275, 384 S.E.2d 527 (1989); State v. Rich, 87 N.C. App. 380, 384, 361 S.E.2d 321, 324 (1987).
In the case sub judice, the State presented the following evidence of defendant's residence at the apartment where the cocaine was found: (1) cocaine was purchased from defendant at the apartment on two separate occasions, (2) defendant arrived at the apartment complex subsequent to the search in response to a call from his girlfriend, (3) the officer found "his clothes and her clothes" in one bedroom of the apartment which was "set up for two people", and (4) defendant told police "they [defendant and his girlfriend] had just moved there recently." The primary distinction between Hamilton and the case sub judice is defendant's statement that "they had just moved there," which is effectively an admission of residence. Defendant's statement was also corroborated by the evidence that the apartment was set up for a man and a woman and that he came to the apartment in response to notification that it was being searched. On this evidence, we conclude that State v. Rosario, not Hamilton, is apposite to the case sub judice, where "it [was] not disputed that defendant maintained the house as his residence." Rosario, 93 N.C. App. at 638, 379 S.E.2d at 440. The fact of defendant's residence, along with "delivery of the package of cocaine, the discovery of the other cocaine, the cocaine grinder, and the scales [plus] testimony concerning defendant's prior drug dealing clearly constitute[d] sufficient evidence to support a conviction under G.S. 90-108(a)(7)" in Rosario. Id. Accordingly, we hold that the trial court did not err when it denied defendant's motion to dismiss the charge of violating N.C. Gen. Stat. § 90-108(a)(7).
B. Possession
Defendant contends that his motion to dismiss should have been granted for the charges of violating N.C. Gen. Stat. § 90-95 and N.C. Gen. Stat., § 90-113.22, because the State did not present sufficient evidence of possession of either the cocaine or the drug paraphernalia discovered in the search of the apartment. We agree.
"An accused's possession of [contraband] may be actual or constructive. He has [constructive] possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use." State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984) (citation and quotation omitted). Where, as here, "the defendant was not present when law enforcement officers discovered the controlled substance, the State must rely on the doctrine of constructive possession to prove that the controlled substance belonged to the defendant." Hamilton, 145 N.C. App. at 155, 549 S.E.2d at 235 (internal citations and brackets omitted).
Where [contraband] materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of [constructive] possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. Brown, 310 N.C. at 569, 313 S.E.2d at 589 (citation and quotation omitted). If the defendant's control of the premises where the contraband is found is non-exclusive, constructive possession of the contraband, or of the premises, may be inferred from other incriminating circumstances. Id.; State v. Williams, 307 N.C. 452, 456, 298 S.E.2d 372, 375 (1983).
In its brief, the State concedes that defendant's control of the apartment where the cocaine and drug paraphernalia was discovered was non-exclusive. The State contends that the presence of two incriminating circumstances was sufficient to carry the charges to the jury under the doctrine of constructive possession: (1) testimony that an informant purchased cocaine from defendant at the apartment on two occasions, and (2) testimony that the cocaine and the drug paraphernalia were found in a dresser drawer located in defendant's residence.
However, we conclude that this evidence is not sufficient to infer constructive possession sufficient to survive defendant's motion to dismiss. Testimony that an informant purchased cocaine from defendant at the apartment on two occasions more than a week removed from the search of the apartment may raise suspicion that defendant was in constructive possession of the cocaine found in the apartment, but this evidence raises no more than a suspicion and is not sufficient to carry a charge of PWISD to the jury.
Furthermore, there was no evidence in the record showing that defendant had constructive possession of the cocaine or the drug paraphernalia found in the dresser drawer. Officer Fischer, the officer who found the cocaine, was not able to testify whether the dresser contained men's clothing or as to any other facts which might have shown that defendant had any power and intent to control the use of the cocaine or the drug paraphernalia. His testimony indicated only that there was both men's and women's clothing in the bedroom and that "it appeared that both a man and a woman were staying in that bedroom."
In sum, the record does not present substantial evidence to infer defendant's constructive possession of the cocaine or drug paraphernalia found in the apartment. Therefore we conclude that the trial court erred when it denied defendant's motion to dismiss the charges of PWISD and possession of drug paraphernalia.
III. Conclusion
For the foregoing reasons, we conclude that the trial court did not err when it denied defendant's motion to dismiss the charge of keeping and maintaining a building which is used for the keeping or the selling of controlled substances. However, we conclude that the trial court did err when it denied defendant's motion to dismiss the charges of PWISD and possession of drug paraphernalia. Accordingly, we find no error in defendant's conviction for knowingly keeping and maintaining a building for keeping and selling controlled substances. However, we reverse the order of the trial court denying defendant's motion to dismiss the charges of PWISD and possession of drug paraphernalia, and remand defendant's convictions on those charges to the trial court with instructions to dismiss them.
No error in part, reversed in part.
Chief Judge MARTIN and Judge ARROWOOD concur.
Report per Rule 30(e).