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State v. Dunston

Court of Appeals of North Carolina

October 17, 2017

STATE OF NORTH CAROLINA,
v.
RICHARD DUNSTON, Defendant.

          Heard in the Court of Appeals 10 August 2017.

         Appeal by Defendant from judgment entered 14 April 2016 by Judge Paul C. Ridgeway in Wake County No. 13CRS222201 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Christina S. Hayes, for the State.

          Jarvis John Edgerton, IV for defendant-appellant.

          BERGER, Judge.

         On April 14, 2016, a Wake County jury convicted Richard Dunston ("Defendant") of trafficking opium or heroin, and maintaining a vehicle for keeping or selling controlled substances. Defendant was sentenced pursuant to N.C. Gen. Stat. § 90-95(h)(4) (2015) and received a mandatory sentence of 90 to 120 months in prison, and ordered to pay a fine of $100, 000.00. Defendant does not appeal his conviction or sentence from trafficking opium or heroin, but rather contends the trial court erred in denying his motion to dismiss the charge of maintaining a vehicle for keeping or selling controlled substances. We disagree.

         Factual & Procedural Background

         At trial, evidence tended to show that on September 6, 2013, officers with the Raleigh Police Department's Selective Enforcement Unit were conducting surveillance at a business known to have a high volume of illicit drug activity. Defendant was observed walking towards a white Cadillac in the parking lot. An individual, later identified as Defendant's nephew, Darius Davis ("Davis"), was in the driver's seat of the Cadillac. Defendant began speaking with Davis, and opened a package of cigars. Defendant removed the plastic filters from the cigars, and based upon the officer's training and experience, appeared to replace the tobacco in the cigars with marijuana. Defendant then licked the paper, re-rolled, and replaced the plastic filters back on the "cigars."

         Davis was observed exchanging cash in a hand-to-hand transaction with an older male he met in the parking lot. Defendant and Davis then began an extended conversation with each other, and Defendant sat in the passenger seat of the Cadillac. Davis drove away from the business, and officers initiated a traffic stop of the vehicle.

         Davis consented to a search of his person, which yielded a bag of marijuana. Defendant was then removed from the vehicle and searched. Defendant had no contraband on his person, not even the "cigars" he was observed handling earlier. Officers then conducted a search of the Cadillac, leading to the discovery of an open container of alcohol under the front passenger's seat and a travel bag containing a 19.29 gram mixture of heroin, codeine, and morphine on the back seat. The travel bag also contained plastic baggies, two sets of digital scales, and three cell phones. Defendant admitted that the Cadillac and travel bag belonged to him. Officers later determined, however, that the Cadillac was owned by Defendant's former girlfriend, Latisha Thompson ("Thompson").

         Thompson and Defendant dated for approximately eleven years, but the relationship ended nearly five years before the trial. She acknowledged that the Cadillac was registered in her name, but Defendant purchased, used, and maintained the car. Thompson also testified that she believed associating with Defendant was not in Davis's best interests. Defendant then asked Thompson:

[DEFENDANT]: So how -- so let me ask you a question: So why would you feel that Mr. Davis was getting himself into something he didn't deserve?
[THOMPSON]: Because I knew. I was with you [for] 11 years.
[DEFENDANT]: Exactly what is that supposed ...

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