1. Drugs_maintaining motel room to keep or sell controlled
substances_sufficiency of evidence
The trial court erred by denying defendant's motion to
dismiss a charge of maintaining a motel room to keep or sell
controlled substances where the State presented evidence of
defendant's occupancy of the room, but did not present evidence
that she bore the expense of the room or otherwise maintained it
in any way, and defendant had occupied the room for less than
twenty-four hours.
2. Drugs_constructive possession_motel room
There was sufficient evidence for a reasonable juror to
conclude that defendant had the power and intent to exercise
control over the marijuana and drug paraphernalia in a motel room
where law enforcement officers found defendant and one other
person in a room filled with marijuana smoke, defendant was
stoned, a quantity of marijuana and drug paraphernalia were in
plain view, defendant had spent the previous night in the motel
room, and she had equal access to the room key.
Attorney General Roy Cooper, by Assistant Attorney General
Teresa L. White, for the State.
David W. Rogers for defendant appellant.
TIMMONS-GOODSON, Judge.
Brooke Kraus ("defendant") appeals from judgments sentencing
her for felonious possession of marijuana, possession of drug
paraphernalia, and felonious maintenance of a place for controlled
substances. Although the judgments indicate that defendant pled
guilty to these offenses, it is evident from the record thatdefendant in fact entered a plea of not guilty and was tried before
a jury. At trial, the State presented the following evidence:
Richard Sandborn, the general manager of a motel located in Flat
Rock, North Carolina, requested assistance on 9 March 2000 from the
Henderson County Sheriff's Department after detecting a strong and
distinctive odor of marijuana emanating from Room 229 at the motel.
When responding law enforcement officers arrived, they met with
Chris Fain ("Fain"), who had rented Room 229, and obtained written
consent for a search of the room. As the officers approached Room
229, they encountered a dense cloud of white marijuana smoke. The
officers knocked on the door of Room 229 several times before
defendant's friend and co-defendant, Leon Henderson ("Henderson"),
opened the door. Upon entering the room, officers found defendant
sitting in a chair next to the window. No other person was present
in the smoky room. Like Henderson, defendant was "glassy-eyed[,]"
"lethargic[,]" and appeared to be "stoned." Marijuana, marijuana
seeds and stems, a box cutter, cigar wrappers, small plastic bags,
and pill bottles littered a nearby table. The officers discovered
a small bag containing eighty-five (85) grams of marijuana in a
trash can and a quantity of crack cocaine and a room key in the
drawer of a night stand. Officers also found a red duffle bag in
the closet, the door to which was partially open. An
identification tag on the bag listed Henderson's name as the owner.
The duffle bag contained a set of digital scales, a small plastic
bag containing 312 grams of marijuana, and a large "block" of
marijuana weighing four pounds, eleven ounces.
Henderson testified that, on the evening of 8 March 2000, heand defendant were invited by Fain to a party in Room 2
29. Eight
to ten people, many of whom were smoking marijuana, were in the
room when Henderson and defendant arrived. Henderson admitted that
he and defendant smoked marijuana, then spent the night in the
room. Henderson denied any knowledge of the duffle bag's contents,
stating that he had lent the bag to Fain. Henderson further denied
knowledge of the cocaine, and testified that defendant was
similarly ignorant of the drugs and drug paraphernalia found in the
room. Defendant did not testify.
The jury found defendant guilty of felonious possession of
marijuana, possession of drug paraphernalia, and felonious
maintenance of a motel room used to keep controlled substances.
The trial court consolidated the offenses and sentenced defendant
to a suspended term of six to eight months of imprisonment, with
thirty-six (36) months of supervised probation. Defendant now
appeals.
______________________________________________________
The issues are whether the State presented substantial
evidence that defendant (1) maintained the motel room where the
contraband was seized; (2) constructively possessed marijuana; and
(3) constructively possessed drug paraphernalia. For the reasons
set forth herein, we hold there was insufficient evidence that
defendant maintained the motel room, and we therefore reverse the
trial court in part. We further hold that there was sufficient
evidence to support defendant's convictions concerning her
constructive possession of the marijuana and the drug
paraphernalia. [1]Defendant argues there was insufficient evidence that she
maintained the motel room where the contraband was found, and that
the trial court thus erred in denying her motion to dismiss this
charge. Defendant submits that the room was rented to Fain, and
that the State presented no evidence that defendant kept or
otherwise maintained the room. We agree with defendant and reverse
the trial court on this charge.
Defendant was charged with knowingly and intentionally
maintaining a motel room used for keeping or selling controlled
substances under North Carolina General Statutes section 90-
108(a)(7). This statute, in pertinent part, makes it unlawful for
any person "[t]o knowingly keep or maintain any store, shop,
warehouse, dwelling house, building, vehicle, boat, aircraft, or
any place whatever, . . . which is used for the keeping or selling
of [a controlled substance]." N.C. Gen. Stat. § 90-108(a)(7)
(1999). "Maintain means to 'bear the expense of; carry on . . .
hold or keep in an existing state or condition.'" State v. Allen,
102 N.C. App. 598, 608, 403 S.E.2d 907, 913 (1991)(quoting Black's
Law Dictionary 859 (5th ed. 1979)), reversed on other grounds, 332
N.C. 123, 418 S.E.2d 225 (1992). In determining whether or not a
person "keep[s] or maintain[s]" a place within the meaning of
section 90-108(a)(7), this Court considers several factors,
including "ownership of the property; occupancy of the property;
repairs to the property; payment of taxes; payment of utility
expenses; payment of repair expenses; and payment of rent." State
v. Bowens, 140 N.C. App. 217, 221, 535 S.E.2d 870, 873 (2000),disc. review denied, 353 N.C. 383, 547 S.E.2d 417 (2001).
In the instant case, the State presented evidence supporting
only one of the above-stated factors, namely, defendant's occupancy
of the motel room. The evidence tended to show that defendant had
access to a key, spent the previous night in the motel room, and
was present when law enforcement officials discovered the
contraband. The State presented no evidence, however, that
defendant "b[ore] the expense of" or otherwise maintained the motel
room in any way. Defendant did not rent the room or otherwise
finance its upkeep. Moreover, defendant had occupied the room for
less than twenty-four hours when law enforcement arrived. Under
these facts, the State failed to present sufficient evidence from
which a reasonable jury could conclude that defendant maintained
the motel room. See State v. Hamilton, 145 N.C. App. 152, 157-58,
549 S.E.2d 233, 234-35 (2001); Bowens, 140 N.C. App. at 222, 535
S.E.2d at 873 (both holding that the charge of maintaining a
dwelling to keep or sell controlled substances should have been
dismissed where there was no evidence that the defendant owned or
leased the dwelling, or otherwise had any responsibility for the
payment of utilities or general upkeep of the residence, although
there was evidence in each case that the defendant resided at the
dwelling). The trial court erred by denying defendant's motion to
dismiss the charge of maintaining a motel room to keep or sell
controlled substances.
[2]Defendant next argues that there was insufficient evidence
that she constructively possessed the marijuana or the drugparaphernalia seized in Room 229. Defendant notes that no drugs or
contraband were found on her person, and asserts that numerous
persons spent time in Room 229 during the previous evening.
Defendant further notes that the room was rented to Fain, and that
the duffle bag belonged to Henderson. As such, defendant argues
that there was no evidence that she possessed marijuana or drug
paraphernalia. We disagree.
In ruling on a motion to dismiss, the trial court must
determine whether there is substantial evidence of each element of
the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322
S.E.2d 370, 387 (1984). "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). When reviewing the evidence, the trial court must
consider even incompetent evidence in the light most favorable to
the prosecution, granting the State the benefit of every reasonable
inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). Any contradictions or discrepancies in the evidence
should be resolved by the jury. See id.
"Constructive possession of contraband material exists when
there is no actual personal dominion over the material, but there
is an intent and capability to maintain control and dominion over
it." Id. at 568, 313 S.E.2d at 588. Where sufficient
incriminating circumstances exist, constructive possession of the
contraband materials may be inferred even where possession of the
premises is nonexclusive. See id. at 569, 313 S.E.2d at 588-89. Evidence placing the accused within close proximity to the
contraband may support a jury's conclusion that the contraband was
in the accused's possession, thereby justifying the denial of a
motion to dismiss. See State v. Harvey, 281 N.C. 1, 12-13, 187
S.E.2d 706, 714 (1972).
In the instant case, defendant did not maintain exclusive
possession of the premises. We must therefore determine whether
sufficient incriminating circumstances exist to infer that
defendant had the intent and capability to maintain control and
dominion over the contraband. See State v. Givens, 95 N.C. App.
72, 78, 381 S.E.2d 869, 872 (1989).
The State's evidence indicated that law enforcement officers
found defendant with one other person in a small motel room filled
with marijuana smoke. Defendant was "stoned," and a quantity of
marijuana and drug paraphernalia were in plain view. "A
defendant's presence on the premises and close proximity to a
controlled substance is a circumstance which may support an
inference of constructive possession." Id. at 78, 381 S.E.2d at
872. Further, defendant had spent the previous night in the motel
room and had equal access to the room key. See Brown, 310 N.C. at
569, 313 S.E.2d at 589 (holding that defendant's possession of a
key to the apartment where contraband was found showed sufficient
control over the premises for constructive possession).
Giving the State the benefit of all reasonable inferences that
may be drawn from the circumstances, the evidence is sufficient for
a reasonable juror to conclude that defendant had the power andintent to exercise control over the marijuana and drug
paraphernalia. See State v. Autry, 101 N.C. App. 245, 252-53, 399
S.E.2d 357, 361-62 (1991) (upholding defendant's conviction for
constructive possession of cocaine although defendant had no
control of the premises and was found with two other persons
standing near the cocaine); Givens, 95 N.C. App. at 78, 381 S.E.2d
at 872-73 (holding that constructive possession was proper where
defendant was arrested in the same room where police found cocaine
in plain sight). We therefore overrule defendant's second and
third assignments of error.
In conclusion, we hold that defendant's conviction for
maintaining a motel room used to keep or sell a controlled
substance must be reversed. We otherwise find no error by the
trial court.
Reversed and remanded in part.
Judges HUDSON and TYSON concur.
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