Originally heard in the Court of Appeals 2 May 2018
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.
Rawls for defendant-appellant.
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).
Factual and Procedural Background
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(unpublished).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.
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.
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.
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
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.
State v. Mitchell
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