in the Court of Appeals 8 August 2016.
by defendant from judgment entered 13 August 2015 by Judge W.
Allen Cobb, Jr., in New Hanover County Superior Court Nos. 13
CRS 56716, 13 CRS 56717
Attorney General Roy Cooper , by Special Deputy Attorney
General Heather H. Freeman, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant-appellant.
Lee Rogers ("defendant") appeals from jury verdicts
finding him guilty of possession with intent to manufacture,
sell and deliver cocaine; intentionally keeping and/or
maintaining a vehicle used for the keeping and/or selling of
controlled substances; possession of drug paraphernalia;
possession of one-half ounce or less of marijuana; and having
attained the status of habitual felon. Because the evidence
did not establish continuous possession of a vehicle for the
purpose of keeping or selling a controlled substance, the
trial court erred in denying defendant's motion to
dismiss the charge of maintaining a vehicle for the keeping
and/or selling of a controlled substance. However, with
respect to defendant's other arguments, the trial court
did not commit plain error.
Factual and Procedural Background
December of 2012 and August of 2013, Detective Evan Luther of
the Vice and Narcotics Unit of the New Hanover Sheriff's
Department ("Detective Luther") "bec[a]me
familiar with the name of Antwarn Rogers" through his
narcotics investigations. On 8 August 2013, Detective Luther
was investigating defendant, and determined that he was
driving a particular vehicle and staying in a particular
hotel room. He assembled a search warrant and notified
assisting detectives to monitor the hotel room. Detective
Luther also advised the assisting detectives that defendant
"was wanted on outstanding warrants[, ]" so that
they knew that they could initiate contact with defendant to
serve outstanding processes, irrespective of whether the
search warrant was granted. After the detectives detained
defendant, Detective Luther executed the search warrant,
which authorized him to search both the hotel room and the
vehicle in connection with defendant.
hotel room, detectives located "a baggy that was in the
toilet dispenser roll" containing narcotics. Detectives
located "another baggy with white rock substance"
and "a black digital scale[.]" Detective Luther
swabbed the scale with a field test kit, which revealed the
presence of cocaine.
vehicle, detectives located "two baggies with a white
rock substance . . . inside of the gas cap" of the
vehicle. They also found money folded and placed inside of a
Timberland boot in the car. A detective also located a rolled
marijuana cigarette inside the ashtray in the front of the
was indicted for possession with intent to manufacture, sell,
and deliver cocaine; manufacture of cocaine; felony
possession of cocaine; maintaining a vehicle for the sale of
a controlled substance; possession of drug paraphernalia;
possession of one-half ounce or less of marijuana; and having
attained the status of an habitual felon.
outset of trial, the State declined to proceed on the charge
of manufacture of cocaine. At the close of the State's
evidence, defendant moved to dismiss the charges. The trial
court granted defendant's motion to dismiss with respect
to the charge of felony possession of cocaine, and denied the
motion with respect to the remaining charges. Defendant
offered no evidence.
jury returned verdicts finding defendant guilty of possession
with intent to manufacture, sell, and deliver cocaine;
maintaining a vehicle for the sale of a controlled substance;
possession of drug paraphernalia; and possession of one-half
ounce or less of marijuana. The jury further found that
defendant had attained the status of an habitual felon.
Defendant failed to attend the trial, and the trial court
entered an order finding that he could be tried in
absentia, and that entry of judgment would be continued
until defendant could be brought before the court.
August 2015, the trial court entered judgment upon the
jury's verdicts, and sentenced defendant to consecutive
active sentences of 35-54 months for maintaining a vehicle,
possession of drug paraphernalia, and possession of
marijuana, and 111-146 months for possession with intent to
manufacture, sell, and deliver cocaine, in the North Carolina
Department of Adult Correction.
Motion to Dismiss
first argument, defendant contends that the trial court erred
by denying his motion to dismiss the charge of maintaining a
vehicle for the sale of a controlled substance. We agree.
Standard of Review
Court reviews the trial court's denial of a motion to
dismiss de novo." State v. Smith, 186
N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
Upon review of a motion to dismiss, the court determines
whether there is substantial evidence, viewed in the light
most favorable to the State, of each essential element of the
offense charged and of the defendant being the perpetrator of
State v. Lane, 163 N.C.App. 495, 499, 594 S.E.2d
107, 110 (2004) (citations omitted). "The [trial] court
should grant a motion to dismiss if the State fails to
present substantial evidence of every element of the crime
charged." State v. McDowell, 329 N.C. 363, 389,
407 S.E.2d 200, 214 (1991). "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).
Gen. Stat. § 90-108(a)(7) (2015) makes it unlawful to
"knowingly keep or maintain any . . . vehicle . . .
which is used for the keeping or selling of [controlled
substances]." "This statute prohibits the
maintaining of a vehicle only when it is used for
'keeping or selling' controlled substances[.]"
State v. Mitchell, 336 N.C. 22, 32, 442 S.E.2d 24,
29 (1994). "The focus of the inquiry is on the
use, not the contents, of the vehicle."
Mitchell, 336 N.C. at 34, 442 S.E.2d at 30 (emphasis
Thus, the fact that 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. Likewise, 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
State v. Dickerson, 152 N.C.App. 714, 716, 568
S.E.2d 281, 282 (2002) (citation, quotation marks, brackets,
and ellipses omitted). N.C. Gen. Stat. § 90-108(a)(7)
does not require the State to demonstrate a defendant's
ownership of a vehicle, or that a sale was actually
transacted from the vehicle. "The totality of the
circumstances controls, and whether there is sufficient
evidence of the 'keeping or maintaining' element
depends on several factors, none of which is
dispositive." State v. Hudson, 206 N.C.App.
482, 492, 696 ...