in the Court of Appeals 10 August 2017.
by Defendant from judgment entered 14 April 2016 by Judge
Paul C. Ridgeway in Wake County No. 13CRS222201 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General Christina S. Hayes, for the State.
John Edgerton, IV for defendant-appellant.
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.
& Procedural Background
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."
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.
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
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 ...