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HUDSON, Judge.
In August 2003, a Dare County grand jury indicted defendant
for the following seven offenses: two counts of possession with
intent to sell and deliver (“PWISD”) cocaine, one count of
selling and delivering cocaine, one count of trafficking cocaine
by possession, one count of trafficking cocaine by
transportation, and two counts of keeping or maintaining a motor
vehicle for the purpose of keeping or selling a controlled
substance. In August 2004, the cases were tried together and a
jury acquitted defendant of trafficking in cocaine by
transportation and found him guilty of the remaining charges.
The trial court sentenced defendant to consecutive sentencestotaling 55 to 60 months of imprisonment, with the last 5 to 6
months suspended on a term of probation. The court also
assessed defendant $50,000 in fines and $700 in restitution.
Defendant appeals. We find no error in part, vacate in part,
and remand for resentencing.
The evidence tends to show that in January 2002, police
stopped Justin Freeman in Tyrell County for driving with an
expired registration. Freeman consented to a search of his
vehicle, which revealed 150.2 grams of cocaine and a firearm.
The State dismissed the associated charges against Freeman when
the federal government became involved and indicted him for drug
and weapon offenses. Facing imprisonment of twenty-five years
to life, Freeman agreed to cooperate with the authorities. He
spoke with federal authorities, as well as a Dare County
investigator, and revealed details about his history of drug-
dealing. He reported that he bought drugs in the Western part
of the State and sold them in Dare County, where he could
realize a 100% mark-up. Freeman stated that in Dare County, he
sold the drugs to Zeak Wilmoth, Larry Grubbs, and defendant,
Michael Calvino. On 17 April 2003, defendant met with Dare
County investigator, Kevin Duprey. Freeman called defendant
and the police recorded that phone call, as well as subsequentphone calls and meetings between Freeman and defendant. These
recordings were played for the jury at trial.
At trial, Freeman testified that his 17 April 2003
conversation with defendant ended with defendant agreeing to
sell Freeman cocaine. On 18 April 2003, Freeman met defendant
at a convenience store where he got into defendant's van and
purchased two grams of cocaine.
Freeman wore an audio recording
device. In subsequent phone conversations, Freeman and
defendant negotiated another drug deal. This time, defendant
agreed to buy two ounces of cocaine from Freeman. On 25 April
2003, the two met and defendant purchased two ounces of cocaine
from Freeman; the exchange again took place in defendant's van.
[1] Defendant first argues that the trial court erred in
entering judgment against him for sale and delivery of cocaine
because the indictment was fatally flawed. We agree. It is
well-established that the indictment must state, “the name of
the person to whom the accused allegedly sold narcotics
unlawfully... when it is known.” State v. Martindale, 15 N.C.
App. 216, 218, 189 S.E.2d 549, 550 (1972) (emphasis added)
.
Here, the indictment alleged that defendant sold cocaine to “a
confidential source of information,” but it is undisputed that
the State knew the name of the individual to whom defendant
allegedly sold the cocaine in question: Justin Freeman. Whilethe State concedes that these cases appear to favor defendant's
position, it contends they were wrongly decided, and argues as
such to preserve the issue for further review. However, because
such error renders “the indictment [] fatally defective and [it]
cannot sustain the judgment in that case,” State v. Long, 14
N.C. App. 508, 510, 188 S.E.2d 690, 691 (1972), we vacate
defendant's conviction for sale and delivery of cocaine.
[2] Defendant next argues that the trial court erred in
denying his motion to dismiss the charges of knowingly keeping a
motor vehicle for the purpose of selling a controlled substance
because the State failed to produce sufficient evidence. We
disagree. The court should grant a motion to dismiss if the
State fails to present substantial evidence of every element of
the crime charged. State v. McDowell, 329 N.C. 363, 389, 407
S.E.2d 200, 214 (1991). In reviewing the trial court's ruling
on a motion to dismiss, we must evaluate the evidence in the
light most favorable to the State, resolving all contradictions
in the State's favor. State v. Malloy, 309 N.C. 176, 179, 305
S.E.2d 718, 720 (1983). Ultimately, we must determine “whether
a reasonable inference of the defendant's guilt may be drawn
from the circumstances.” State v. Lee, 348 N.C. 474, 488, 501S.E.2d 334, 343 (1998).
N.C. Gen. Stat. § 90-108(a)(7) (2002)
provides that
[i]t shall be 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 resorted to by persons using
controlled substances in violation of this Article for the
purpose of using such substances, or which is used for the
keeping or selling of the same in violation of this
Article.
Id. On appeal, defendant argues that there was insufficient
evidence presented to show that his vehicle was used for keeping
or selling controlled substances and that the evidence was
“insufficient to prove the vehicle alleged.” The North Carolina
Supreme Court has held that “[t]he focus of the inquiry is on
the use, not the contents, of the vehicle.” State v. Mitchell,
336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994). “The determination
of whether a vehicle . . . is used for keeping or selling
controlled substances will depend on the totality of the
circumstances.” Id. Here, defendant argues that his primary
use of his vehicle was as a work van for his legitimate
construction business, not for engaging in drug transactions.
However, defendant cites no cases in support of his “primary
use” argument. Moreover, defendant did not testify or present
witnesses and offered no evidence about his construction
business or his vehicle. In contrast, Freeman testified that hewas “sitting in [defendant's] van” when Freeman sold defendant
cocaine. Freeman also testified that a week later, he attempted
to get defendant to get into the car he was driving, but instead
defendant had Freeman get into defendant's “white, I think,
Chevrolet work van . . . [the] same van . . . [he] recalled
getting in a week prior.” Both of these transactions were
observed and recorded by police. Viewing the evidence in the
light most favorable to the State, we conclude that the trial
court did not err in denying defendant's motion to dismiss for
insufficiency of the evidence.
[3] In his next argument, defendant contends that even if
the evidence supported a conviction of keeping a motor vehicle
for the purpose of keeping or selling a controlled substance,
the trial court erred in entering judgment on multiple counts of
this offense. We agree. The State concedes that one of
defendant's two convictions for this offense must be vacated
because the evidence here only supports a single continuing
offense. In State v. Grady, the defendant was convicted for two
counts under N.C. Gen. Stat. § 90-108(a)(7), which resulted from
two undercover drug transactions made one month apart at the
same dwelling. 136 N.C. App. 394, 400, 524 S.E.2d 75, 79
(2000).
This Court concluded that double jeopardy prohibitsconviction for two counts under N.C. Gen. Stat. § 90-108(a)(7),
as “the offense is a continuing offense.” Id.
Accordingly, we
vacate one of the convictions for keeping or maintaining a
vehicle for the purpose of keeping or selling a controlled
substance.
[4] Defendant next argues that the trial committed
reversible error when it ordered him to pay restitution without
sufficient evidence to support such an award. We agree. The
State concedes the error here. Our Courts have repeatedly held
that the restitution amount requested by the State must be
supported by “evidence adduced at trial or at sentencing.”
State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995).
Here, at the sentencing hearing, the prosecutor noted that the
State had a “restitution sheet” requesting reimbursement from
defendant of $600 for SBI “lab work,” and $100 to the “Dare
County Sheriff's Office Special Funds.” However, defendant did
not stipulate to these amounts and no evidence was introduced at
trial or at sentencing in support of the calculation of these
amounts. We vacate the restitution order and remand for a
hearing on the matter at resentencing.
[5] Finally, defendant asserts that the trial court erred
in admitting evidence of other crimes. We disagree. Here, overdefense objection, the State introduced evidence that defendant
had attended a yearly fall gathering known as the “damned if I
know party” in Yadkinville, which was a convention of sorts,
held every year in the mountains, for drug users and sellers.
Mr. Freeman testified that he had attended the gathering five
times and that he had seen defendant at the party before. N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2003) provides that while
“[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person or that he acted in
conformity therewith.” Id. However, such evidence may be
admissible for other purposes such as proof of motive,
opportunity, intent and knowledge. Id. On appeal, we review
the trial court's ruling which admitted 404(b) evidence for
abuse of discretion. State v. Hyatt, 355 N.C. 642, 662, 566
S.E.2d 61, 74 (2002). Here, when defense counsel objected, the
trial court held a voir dire in the absence of the jury and
determined that it would allow the evidence for the limited
purpose of showing defendant's motive, opportunity, intent, and
knowledge. The trial court instructed the jury on the limited
purpose for which the evidence was being received. We conclude
that the trial court did not abuse its discretion. Furthermore,
presuming error, we are not persuaded that such error would haveprejudiced defendant, given the other evidence presented in this
case. We overrule this assignment of error.
No error in part, vacated in part, and remanded for
resentencing.
Judges MCCULLOUGH and TYSON concur.
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