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State v. Rogers

Court of Appeals of North Carolina

February 7, 2017

STATE OF NORTH CAROLINA
v.
ANTWARN LEE ROGERS

          Heard in the Court of Appeals 8 August 2016.

         Appeal 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 [1], 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.

          CALABRIA, Judge.

         Antwarn 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.

         I. Factual and Procedural Background

         Between 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.

         In the 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.

         In the 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 vehicle.

         Defendant 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.

         At the 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.

         The 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.

         On 13 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.

         Defendant appeals.

         II. Motion to Dismiss

         In his 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.

         A. Standard of Review

         "This 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 the offense.

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).

         B. Analysis

          N.C. 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 in original).

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 substance.

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 ...


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