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State v. Miller

Court of Appeals of North Carolina

March 19, 2019

STATE OF NORTH CAROLINA
v.
MARVIN LOUIS MILLER, JR.

          Originally heard in the Court of Appeals 2 May 2018

          Appeal by defendant from judgment entered 28 April 2017 by Judge Christopher W. Bragg in Union County No. 12 CRS 53800 Superior Court. Originally heard in the Court of Appeals 2 May 2018, with unanimous opinion issued 7 August 2018. The Supreme Court of North Carolina allowed the State's petition for discretionary review on 5 December 2018, for the limited purpose of remanding for reconsideration to this Court in light of that Court's recent decision in State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018).

          Attorney General Joshua H. Stein, by Assistant Attorney General James D. Concepción, for the State.

          Leslie Rawls for defendant-appellant.

          TYSON, JUDGE.

         This case is before this Court on remand by Order of the North Carolina Supreme Court to be reconsidered in light of that Court's recent decision in State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018).

         I. Factual and Procedural Background

         The facts underlying this case are set forth in detail in our Court's previous opinion, State v. Miller, __ N.C.App. __, 817 S.E.2d 503, 2018 WL 3734368 (2018) (unpublished). They are recounted briefly below.

         The State's evidence showed Union County Sheriff's Sgt. Mark Thomas received a complaint asserting Defendant was "involved in sales and narcotics" and began an investigation. Sgt. Thomas hired a trusted confidential informant to attempt to purchase crack cocaine from Defendant. After Thomas contacted the informant, she told Sgt. Thomas she knew Defendant, but did not assert she had previously purchased drugs from him. Officers provided the informant with a recording device and $48.00 in cash. The informant went to Defendant's home and was allowed to enter into his living room. She had a conversation with Defendant and a female, who was also present inside the house. She gave Defendant $48.00 to purchase crack cocaine. Defendant left the room, walked outside and went towards an old school bus parked on his property. When Defendant returned, he provided the requested crack cocaine rocks to the informant, who then shared a portion of the rocks with the other female inside the house.

         Defendant was indicted for possession with intent to sell and deliver cocaine, sale of cocaine, and maintaining a place to keep controlled substances. The jury convicted Defendant on all three counts. Defendant appealed to this Court.

         Defendant's sole argument asserts that the trial court erred by denying his motion to dismiss the charge of maintaining a place to keep controlled substances. This Court unanimously agreed and reversed Defendant's conviction for that one count. Miller, 2018 WL 3734368 at *2. The Supreme Court of North Carolina issued its 17 August 2018 opinion in Rogers, __ N.C. __, 817 S.E.2d 150. The Court also remanded this case for our reconsideration based upon the issue before the Court in Rogers, __ N.C. __, 817 S.E.2d 150.

         II. Analysis

         In deciding State v. Miller ("Miller I"), this Court relied in part upon State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994), to reach the conclusion that the State had failed to present sufficient evidence tending to show Defendant was maintaining a dwelling for the keeping of a controlled substance in violation of N.C. Gen. Stat. § 90-108(a)(7). In Rogers, our Supreme Court disavowed its earlier statement in Mitchell that "keep" denotes "not just possession, but possession that occurs over a duration of time." Rogers, __ N.C. at __, 817 S.E.2d at 156. To determine Rogers' impact on Defendant's case, we initially review Mitchell.

         A. State v. Mitchell

         In Mitchell, the State's evidence was that a convenience store clerk had seen the defendant exit a car with darkly tinted windows. When the defendant approached the clerk's counter and asked for rolling papers, the clerk asked what was in his pockets. The defendant acknowledged it was ...


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