Appeal by defendant from judgments dated 24 May 2001 by Judge
Ronald L. Stephens in Alamance County Superior Court. Heard in the
Court of Appeals 13 August 2002.
Attorney General Roy Cooper, by Assistant Attorney General J.
Douglas Hill, for the State.
Hemric, Lambeth, Champion & Moseley, P.A., by Ricky W.
Champion, for defendant appellant.
GREENE, Judge.
Brian Keith Dickerson (Defendant) appeals judgments dated 24
May 2001 entered consistent with a jury verdict finding him guilty
of possession of cocaine with intent to sell and/or deliver, sale
and delivery of cocaine, and keeping and/or maintaining a motor
vehicle for the sale and/or delivery of cocaine.
The evidence at trial revealed that on the night of 4 November
1999 Jennifer Wilson (Wilson), a police informant, arranged an
undercover drug purchase by ordering eighty dollars worth of crack
cocaine from Defendant. Defendant met Wilson and undercover police
officer Deputy Jennifer Perhealth (Deputy Perhealth) in the parking
lot behind Wilson's apartment. Defendant was seated on the
passenger side of a vehicle when Wilson and Deputy Perhealth
arrived. An unidentified person occupied the driver's seat of thevehicle.
When Wilson and Deputy Perhealth approached the passenger side
of the vehicle to purchase the cocaine, Defendant told Deputy
Perhealth to place the money on the dashboard in front of him.
Deputy Perhealth did as requested. Defendant then handed Deputy
Perhealth a clear plastic bag containing crack cocaine. Upon
completion of the purchase, Wilson and Deputy Perhealth went to
Wilson's apartment, and the vehicle left the parking lot. A
surveillance officer was able to obtain the license plate number of
the vehicle and determined it was registered to Defendant. Deputy
Perhealth, who was later shown a photo lineup, identified Defendant
as the man from whom she had bought the cocaine.
At the conclusion of the State's evidence, Defendant moved to
dismiss all the charges against Defendant for insufficiency of the
evidence. The trial court denied this motion. Defendant did not
present any evidence but renewed his earlier motion. The trial
court again denied Defendant's motion.
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The issues are whether: (I) the evidence was sufficient to
support a charge of keeping and/or maintaining a motor vehicle for
the sale and/or delivery of cocaine; and (II) the trial court erred
in sentencing Defendant for both the sale and delivery of cocaine
and the possession of cocaine with intent to sell and/or deliver.
I
Defendant contends the isolated incident of his having been
seated in a motor vehicle while selling drugs is insufficient towarrant a charge to the jury of keeping or maintaining a motor
vehicle for the sale and/or delivery of cocaine. We agree.
In ruling on a motion to dismiss, the trial court must
determine whether there is substantial evidence of each essential
element of the charged offense and that the defendant is the
perpetrator of the offense.
State v. Harding, 110 N.C. App. 155,
162, 429 S.E.2d 416, 421 (1993). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”
State v. Franklin, 327 N.C. 162, 171, 393
S.E.2d 781, 787 (1990).
Pursuant to N.C. Gen. Stat. § 90-108(a)(7), it is illegal to
“knowingly keep or maintain any . . . vehicle . . . which is used
for the keeping or selling of [controlled substances].” N.C.G.S.
§ 90-108(a)(7) (2001). The statute thus prohibits the keeping or
maintaining of a vehicle only when it is used for “keeping or
selling” controlled substances. As stated by our Supreme Court in
State v. Mitchell, the word “'[k]eep' . . . denotes not just
possession, but possession that occurs over a duration of time.”
State v. Mitchell, 336 N.C. 22, 32, 442 S.E.2d 24, 30 (1994).
Thus, the fact “[t]hat an individual within a vehicle possesses
marijuana on one occasion cannot establish . . . the vehicle is
'used for keeping' marijuana; nor can one marijuana cigarette found
within the car establish that element.”
Id. at 33, 442 S.E.2d at
30.
Likewise, the fact that a defendant was in his vehicle on one
occasion when he sold a controlled substance does not by itself
demonstrate the vehicle was kept or maintained to sell a controlledsubstance.
In this case, the State presented no evidence in
addition to Defendant having been seated in a vehicle when the
cocaine purchase occurred. As such, the trial court erred by
failing to dismiss the charge of keeping and/or maintaining a motor
vehicle for the sale and/or delivery of cocaine.
II
Defendant also argues it was error for the trial court to
sentence him for both the sale and delivery of cocaine and the
possession of cocaine with intent to sell and/or deliver as this
violated his right against double jeopardy. We disagree.
The North Carolina General Assembly has determined that the
unlawful possession of cocaine is illegal.
See N.C.G.S. § 90-
95(a)(1) (2001). The General Assembly has also established that
the unlawful sale or delivery of cocaine is illegal.
See id. “By
setting out both the possession and sale as separate offenses in
the statute and by prescribing the same punishment for possession
and for sale, it is apparent that the General Assembly intended
possession and sale to be treated as distinct crimes of equal
degree, to be separately punished . . . .”
State v. Cameron, 283
N.C. 191, 202, 195 S.E.2d 481, 488 (1973). Accordingly, we find no
merit in Defendant's argument.
Reversed and remanded for resentencing.
Judges TIMMONS-GOODSON and HUNTER concur.
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