An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 November 2006
STATE OF NORTH CAROLINA
No. 04 CRS 57689
JOSE MANUEL DIAZ,
Appeal by Defendant from judgment entered 11 May 2005 by Judge
Jack W. Jenkins in Superior Court, Wayne County. Heard in the
Court of Appeals 12 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Stormie D. Forte, for the State.
Appellant Defender Staples Hughes, by Assistant Appellant
Defender Matthew D. Wunsche, for the defendant-appellant.
To maintain a dwelling to use, keep, or sell a controlled
substance, a defendant must bear the expense of; carry on . . .
hold or keep [the dwelling] in an existing state or condition.
(See footnote 1)
Here, because the evidence fails to show Defendant kept or
maintained the dwelling where a controlled substance was found
reverse the trial court's denial of Defendant's motion to dismiss
that charge. However, we do find the evidence to be sufficient to
support Defendant's conviction on the charge of trafficking in
cocaine by possession
On 19 August 2004, agents of the Goldsboro/Wayne County drug
squad approached and knocked on the door of a residence in Dudley,
North Carolina. When a male opened the door and was asked if the
officer could speak to the man in charge, Defendant Jose Manuel
Diaz, appeared at the door and stated he was the man in charge.
The agents informed Defendant that illegal drugs were suspected at
the resident and asked Defendant's consent to search. With
Defendant's consent, the agents searched the residence and found
powder cocaine and a revocation order containing a name that
Defendant admitted he used as an alias
At a trial before a jury, Defendant testified he had lived at
the residence for approximately three months, but he was not the
At the close of all evidence
, the trial court granted
Defendant's motion to dismiss a conspiracy charge, but denied
Defendant's motion as to the remaining charges. Thereafter,
Defendant was convicted of maintaining a dwelling for the use of a
controlled substance and trafficking in cocaine by possession. The
trial judge sentenced Defendant to 70 to 80 months imprisonment for
trafficking cocaine, and to a suspended sentence of 6 to 8 months
imprisonment for maintaining a dwelling for the use of a controlled
Defendant appeals to this Court arguing that
the trial court
erred by (I) failing to dismiss the c
harge of maintaining a
dwelling for the purpose of using, keeping, or selling a controlled
substance and (II) failing to dismiss the charge of felonytrafficking in cocaine by possession.
Defendant first argues that the trial court erred in failing
to dismiss the charge of maintaining a dwelling for the purpose of
keeping, using, or selling a controlled substance in violation of
Section 90-108(a)(7) of the North Carolina General Statutes. He
contends the State failed to provide substantial evidence Defendant
'kept or maintained' the dwelling where a controlled substance was
found. We agree.
In reviewing the denial of a motion to dismiss, this Court
must examine the evidence adduced at trial in the light most
favorable to the State to determine if there is substantial
evidence of every essential element of the crime.
State v. Harris,
157 N.C. App. 647, 651,
580 S.E.2d 63, 66 (2003) (citatio
omitted). Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.
State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)
(citation omitted). [
H]owever, if the evidence is sufficient only
to raise a suspicion or conjecture as to either the commission of
the offense or the identity of the defendant as the perpetrator,
the motion to dismiss must be allowed[.] State v. Grooms, 353 N.C.
50, 79, 540 S.E.2d 713, 731 (2000) (citation omitted).
Defendant was charged with violating Section 90-108(a)(7) of
the 2005 North Carolina General Statutes, which states,
It shall be unlawful for any person to
knowingly keep or maintain any store, shop,
warehouse, dwelling house, building, vehicle,
boat, aircraft, or any place whatever, whichis resorted to by persons using controlled
substances in violation of [Article V of the
North Carolina Controlled Substances Act] for
the purpose of using such substances, or which
is used for the keeping or selling of the same
in violation of this Article.
In determining whether a defendant maintained a dwelling, this
Court has listed several factors to consider, including:
ownership, occupancy of property, repairs to property, payment of
taxes, payment of utility expenses, payment for repairs and payment
of rent. State v. Bowen, 140 N.C. App. 217, 221, 535 S.E.2d 870,
873 (2000) (citations omitted). But, w
here evidence fails to show
defendant bore the expense of a dwelling or was otherwise
responsible for it, this Court has held the element of maintaining
a dwelling unsatisfied
. E.g., State v. Kraus, 147 N.C. App. 766,
557 S.E.2d 144 (2001) (
conviction for maintaining a place for the
use of a controlled substance reversed where the State presented no
evidence defendant bore the expense of or otherwise maintained a
motel room, and defendant occupied the room for less than twenty-
State v. Harris, 157 N.C. App. 647, 580 S.E.2d 63
(2003) (conviction for maintaining a dwelling for storing a
controlled substance reversed where the State's evidence showed
officers had on occasion seen the defendant at the residence, but
there was no evidence the defendant owned or was responsible for
In the case before us
, the relevant facts are analogous to
those in State v. Boyd, _ N.C. App. _, 628 S.E.2d 796 (2006)
Boyd, officers observed the defendant in a dwelling over a two
month period, but, at trial, the State produced no evidence thedefendant was responsible for the dwelling. While a jury could
find [the defendant] lived there, the State offered no evidence
that [the defendant] participated in the leasing of the house, the
payment of the rent, or the maintenance and upkeep of the
premises. Id. at _, 628 S.E.2d at 804. This Court held there was
insufficient evidence of defendant's responsibility for maintaining
the dwelling and reversed
the conviction of maintaining a dwelling
for keeping a controlled substance
At the trial of the case before us, Defendant testified that
he resided at the residence, but the State presented no evidence
that Defendant was responsible for the maintenance or upkeep of the
dwelling. As the relevant facts and charge here are analogous to
those in Boyd, we must reach a similar result.
the State presented no evidence that Defendant maintained,
kept, or was responsible for the dwelling
, we hold the trial court
erred by denying Defendant's motion to dismiss that charge.
Defendant argues second that the trial court erred by failing
to dismiss the charge of felony trafficking in cocaine by
possession because the State failed to prove either actual or
(See footnote 2)
We disagree. When ruling on a motion to dismiss, the trial court's inquiry
is limited to a determination of whether there is substantial
evidence of each essential element of the offense charged and of
the defendant being the perpetrator of the offense. State v.
, 165 N.C. App. 777, 781, 600 S.E.2d 31, 34 (2004) (citations
omitted). Whether the evidence presented is substantial is a
question of law for the court. State v. Siriguanico
, 151 N.C. App.
107, 109, 564 S.E.2d 301, 304 (2002) (citation omitted).
Substantial evidence is defined as the amount of 'relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.' State v. Diaz
, 155 N.C. App. 307, 318, 575 S.E.2d
523, 531 (2002) (quoting State v. Smith
, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980)). If substantial evidence of each element
is presented, the motion for dismissal is properly denied.
, 161 N.C. App. 615, 624, 589 S.E.2d 374, 379 (2003)
(citation omitted). Moreover, if the trial court determines that
a reasonable inference of the defendant's guilt may be drawn from
the evidence, it must deny the defendant's motion [to dismiss] even
though the evidence may also support reasonable inferences of the
defendant's innocence. State v. Butler
, 147 N.C. App. 1, 10, 556
S.E.2d 304, 310 (2001) (citation omitted).
To convict a defendant of possession with intent to sell or
deliver the State must prove three elements: (1) possession of a
substance; (2) the substance must be a controlled substance; and
(3) there must be intent to sell or distribute the controlled
substance. State v. Carr
, 145 N.C. App. 335, 341, 549 S.E.2d
901 (2001) (citations omitted).
Defendant argues the State failed to prove actual possession
because no controlled substances were found on Defendant's person.
further argues the State presented insufficient proof of
constructive possession because the State failed to prove he had
exclusive control over the residence and absent a showing of
exclusive control, the State failed to prove other incriminating
In determining whether a defendant possessed cocaine, this
Court has stated:
[a]n accused's possession of narcotics may be
actual or constructive. He has possession of
the contraband material within the meaning of
the law when he has both the power and intent
to control its disposition or use. Where such
materials are found on the premises under the
control of an accused, this fact, in and of
itself, gives rise to an inference of
knowledge and possession which may be
sufficient to carry the case to the jury on a
charge of unlawful possession.
State v. Leonard
, 87 N.C. App. 448, 455, 361 S.E.2d 397, 401 (1987)
(citing State v. Harvey
, 281 N.C. 1, 12, 187 S.E.2d 706, 714
(1972)). 'However, unless the person has exclusive possession of
the place where the narcotics are found, the State must show other
incriminating circumstances before constructive possession may beinferred.' State v. McNeil
, 359 N.C. 800, 810, 617 S.E.2d 271, 277
(2005) (citing State v. Davis
, 325 N.C. 693, 697, 386 S.E.2d 187,
The relevant facts here are analogous to those in State v.
, 87 N.C. App. 380, 361 S.E.2d 321 (1987). In Rich
searched a defendant's residence and uncovered cocaine. Id.
361 S.E.2d at 323.
But at trial, evidence showed the defendant was
in non-exclusive possession of the house. Id.
circumstances were needed to prove the defendant had constructive
possession of the cocaine. Id.
The State presented evidence the
defendant had been seen on the premises the evening before the
search and was present at the time agents arrived to execute the
Agents found cocaine in the same room as letters with
the defendant's name on them
and in the same room and drawer as a
woman's casual clothes and undergarments -
the defendant being a
This Court held those facts evidenced other
incriminating circumstances, sufficient to allow the jury to infer
that the defendant had constructive possession of the cocaine. Id
at 382-83, 361 S.E.2d at 323.
Here, Defendant acknowledged living in the residence for three
months. Alone, a defendant's residence in a dwelling raises an
inference of control over items within that residence. Leonard
p. at 455, 361 S.E.2d at 401
But, Defendant testified
without contradiction that at the time of his arrest another man
was living in the residence.
Where a defendant's possession is
non-exclusive, the State must prove other incriminatingcircumstances to support a finding of constructive possession.
, 359 N.C. at 810, 617 S.E.2d at 277.
In the case before us, as in Rich
, agents found cocaine and
personal articles in the same immediate area. In Rich
found cocaine in a bedroom with letters containing the defendant's
name and in a drawer with
, 87 N.C. App.
at 382, 361
S.E.2d at 323.
Here, agents found cocaine
in a desk drawer
revocation order containing Defendant's alias in a bedroom with
. Also as in Rich
was present when agents
arrived to search.
, this Court found the evidence supported a finding of
other incriminating circumstances. Rich
87 N.C. App. at 382-83,
361 S.E.2d at 323.
As a result, this Court held there was
sufficient evidence to support a reasonable inference the defendant
was in constructive possession of cocaine. Rich
87 N.C. App. at
382-83, 361 S.E.2d at 323
. Likewise, in this case, we believe the
evidence of cocaine found in a bedroom desk drawer along with a
revocation order form containing Defendant's alias and clothes
support a finding of other incriminating circumstances.
Accordingly, we hold the trial court did not error in denying
Defendant's motion to dismiss the charge of trafficking in cocaine
Reversed in part, no error in part.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
State v. Kr
, 147 N.C. App. 766, 768, 557 S.E.2d 144, 1
We note from the outset Defendant's indictment charges a
violation of N.C. Gen. Stat. § 90-95(h)(3)(a), a Class G felony,
while the indictment's description of the charge gives notice of
charges corresponding to a violation of N.C. Gen. Stat. § 90-
95(h)(3)(b), a Class F felony. As the indictment charges the
defendant in the language of N.C. Gen. Stat. § 90-95(h)(3)(b), a
Class F felony, and Defendant was subsequently convicted of
violating N.C. Gen. Stat. § 90-95(h)(3) and sentenced as a Class
F felon, we read the indictment as sufficient. See State v.Penley
, 277 N.C. 704, 707, 178 S.E.2d 490, 492 (1971)
indictment charges the offense in a plain, intelligible, and
explicit manner and contains averments sufficient to enable the
court to proceed to judgment, and to bar a subsequent prosecution
for the same offense, it is sufficient . . . . An indictment for
a statutory offense is sufficient, as a general rule, when it
charges the offense in the language of the statute.) (citations
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