Appeal by defendant from judgments entered 13 April 2006 by
Judge V. Bradford Long in Guilford County Superior Court. Heard in
the Court of Appeals 25 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Hope D. Murphy, for the State.
James M. Bell for defendant-appellant.
GEER, Judge.
Defendant Euvashii Imani Carter appeals from convictions of
possession of cocaine with intent to sell or distribute, knowingly
keeping a dwelling for the keeping of controlled substances,
possession of drug paraphernalia, and possession of up to one-half
of an ounce of marijuana. We agree with defendant's contention
that the State presented insufficient evidence that he knowingly
kept or maintained a dwelling for the keeping of controlled
substances and that his conviction on that charge must be reversed.
At trial, the State's evidence at most established only that
defendant from time to time was present in the house at issue.
Under the controlling precedent, we are required to reverse
defendant's conviction of that charge. Defendant has not, however,
presented any persuasive basis for overturning any of his remaining
convictions.
Facts
The State's evidence at trial tended to show the following
facts. At approximately 8:20 p.m. on 9 December 2004, Detective
Jamie Castle of the High Point Police Department and several other
officers executed a search warrant at a residence at 805 Tryon
Avenue in High Point, North Carolina. After the officers knocked
at the door and announced their presence, Detective Castle observed
a figure inside the home move in front of and then away from a
window.
When it was apparent that no one was going to answer the door,
the officers forcibly entered the home. Although the lights were
on inside, the officers initially encountered no one in theresidence. The officers discovered a closed door in a hallway that
appeared to be barricaded from the inside. After forcing this door
open, officers found defendant hiding beneath an overturned
recliner. Tucked inside the edge of the recliner's seat was a
plastic bag containing 19.8 grams of crack cocaine. Officers also
seized $380.00 from defendant's person.
The room in which defendant was hiding appeared to be a
bedroom. Sitting out in plain view in that room were defendant's
birth certificate, social security card, and North Carolina State
Identification Card. These documents all listed defendant's home
address as being different from the address of the house being
searched. Officers also found three photographs of defendant at
various locations in the residence. In addition, the search
uncovered a City of High Point utility bill for 805 Tryon Avenue
addressed to defendant's brother; two separate quantities of
marijuana, one weighing 3.4 grams and the other 3.0 grams; a
plastic bottle containing 17 hydrocodone pills; an electronic scale
covered in a "white powdery substance"; a box of plastic sandwich
bags; two counterfeit $100.00 bills; and a cell phone. No one
other than defendant was present in the house.
On 16 May 2005, defendant was indicted for possession of a
controlled substance with intent to manufacture, sell, and deliver;
maintenance of a place to keep and sell controlled substances;
misdemeanor possession of drug paraphernalia; and misdemeanor
possession of a controlled substance. Following a trial during the
10 April 2006 criminal session of Guilford County Superior Court,a jury found defendant guilty of possession with the intent to sell
and deliver cocaine, knowingly keeping a dwelling for the keeping
of controlled substances, possession of drug paraphernalia, and
possession of less than one-half of an ounce of marijuana. The
trial court imposed a presumptive range sentence of 11 to 14 months
and a consecutive presumptive range sentence of 45 days. Defendant
timely appealed to this Court.
I
[1] Defendant argues that the trial court erred in denying his
motion to dismiss the charge of knowingly or intentionally
maintaining a place for the keeping or selling of controlled
substances. In ruling on a defendant's motion to dismiss, the
trial court must determine whether the State presented substantial
evidence (1) of each essential element of the offense and (2) of
the defendant's being the perpetrator.
State v. Robinson, 355 N.C.
320, 336, 561 S.E.2d 245, 255,
cert. denied, 537 U.S. 1006, 154 L.
Ed. 2d 404, 123 S. Ct. 488 (2002). "Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."
State v. Brown, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984). When deciding a motion to dismiss, the
trial court must view all of the evidence presented "in the light
most favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor."
State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994),
cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
2565 (1995). To obtain a conviction for knowingly or intentionally keeping
or maintaining a place for the keeping or selling of controlled
substances, the State has the burden of proving a defendant: "(1)
knowingly or intentionally kept or maintained; (2) a building or
other place; (3) being used for the keeping or selling of a
controlled substance."
State v. Frazier, 142 N.C. App. 361, 365,
542 S.E.2d 682, 686 (2001).
See also N.C. Gen. Stat. §
90-108(a)(7) (2005). Defendant contests only the first element,
arguing that the State presented insufficient evidence for a
rational juror to conclude that defendant "either lived at the
residence or was maintaining the same." We agree.
Whether a person "keeps or maintains" a place, within the
meaning of N.C. Gen. Stat. § 90-108(a)(7), requires consideration
of several factors, none of which are dispositive.
Frazier, 142
N.C. App. at 365, 542 S.E.2d at 686. "Factors which may be taken
into consideration in determining whether a person keeps or
maintains a dwelling include ownership of the property, occupancy
of the property, repairs to the property, payment of utilities,
payment of repairs, and payment of rent."
State v. Baldwin, 161
N.C. App. 382, 393, 588 S.E.2d 497, 506 (2003).
(See footnote 1)
Furthermore, theword "keeping" in the context of N.C. Gen. Stat. § 90-108(a)(7)
"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).
Here, the State presented only the following evidence to
establish that defendant kept or maintained the residence at 805
Tryon Avenue: (1) defendant was the sole occupant of the residence
at the time of the search warrant's execution; (2) three
photographs found in the bedroom showed defendant at various
locations within the home; and (3) defendant's North Carolina State
Identification Card, social security card, and birth certificate
were also discovered in the residence, although none of those items
listed 805 Tryon Avenue as defendant's home address.
The State presented no evidence indicating that defendant
owned the property, bore any expense for renting or maintaining the
property, or took any other responsibility for the residence. In
fact, the only evidence specifically relating to the maintenance of
the property was the utility bill in the name of defendant's
brother.
This Court has routinely held similar evidence to be
insufficient to survive a motion to dismiss.
See, e.g.,
State v.
Harris, 157 N.C. App. 647, 651-53, 580 S.E.2d 63, 66-67 (2003)
(evidence was insufficient when it showed only that defendant was
seen at dwelling several times, bedroom contained some ofdefendant's personal property, and none of defendant's personal
papers listed dwelling as defendant's address);
State v. Kraus, 147
N.C. App. 766, 768-69, 557 S.E.2d 144, 147 (2001) (evidence was
insufficient when defendant was sole occupant of hotel room,
possessed access key to that room, and had spent prior evening in
room, but no evidence indicated defendant bore expense of renting
room);
State v. Bowens, 140 N.C. App. 217, 221-22, 535 S.E.2d 870,
873 (2000) (evidence was insufficient when defendant was present at
dwelling on several occasions; men's clothing, not identified as
belonging to defendant, was found in dwelling; and State had made
no effort to determine who paid the rent, utilities, or telephone
bills),
disc. review denied, 353 N.C. 383, 547 S.E.2d 417 (2001).
The State's evidence in the present case indicates only that
defendant "occupied the property from time to time,"
Harris, 157
N.C. App. at 652, 580 S.E.2d at 66, and provides no indication that
defendant kept possession over a duration of time or otherwise took
any responsibility whatsoever for the property. The State,
however, on appeal, points to the affidavit filed in support of the
application for the search warrant, in which the officer stated
that a confidential informant had informed him that defendant and
his brother were in the business of selling cocaine from 805 Tryon
Avenue. Since this affidavit was not admitted at trial, it is
immaterial in deciding whether the trial court erred in denying
defendant's motion to dismiss.
The trial court thus erred in denying the motion to dismiss
the charge of keeping or maintaining a dwelling house for keepingand selling controlled substances, and we reverse defendant's
conviction of that charge. Given our resolution of this issue, we
need not consider defendant's additional argument that the trial
court erred in its instructions on that charge.
II
[2] Defendant next argues that the trial court erred by
denying his motion for a continuance. A week before the trial was
scheduled to start and nearly a year after defendant was indicted,
defendant moved for a continuance in order to locate a former
girlfriend to testify on defendant's behalf. The trial court
entered a written order signed 10 April 2006, denying defendant's
motion.
A motion for a continuance is generally a matter within the
trial court's discretion, and a denial is not error absent an abuse
of that discretion.
State v. Massey, 316 N.C. 558, 572, 342 S.E.2d
811, 819-20 (1986). Defendant, therefore, bears the burden of
showing that the trial court's ruling was "so arbitrary that it
could not have been the result of a reasoned decision."
State v.
T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998).
(See footnote 2)
Here, defendant has not assigned error to any of the findings
of fact in the trial court's ruling, and, consequently, those
findings are binding on appeal.
State v. Lacey, 175 N.C. App. 370,
376, 623 S.E.2d 351, 355 (2006). In pertinent part, those findings
of fact state:
2) That counsel has been court-appointed to
represent the defendant for approximately
one (1) year;
3) That sometime during March of 2006, the
defendant informed counsel that he wished
for an ex-girlfriend to be present to
testify;
4) That counsel state[d] in his motion to
continue . . . that defense counsel had
spoken with defendant several times prior
to this matter being raised;
5) That based upon the statements of
counsel, the girlfriend is unable to be
located prior to [defendant's] trial
scheduled to begin this week;
6) That the Court specifically finds that
the defendnt [sic] had ample opportunity
to notify counsel of the need to have his
ex-girlfriend present to testify at this
trial and failed to do so in a timely
manner, and now she is unable to be
located. The Court is not privy to what
information this witness has or whether
the witness is a necessity for for [sic]
the trial.
Based on these findings of fact, focusing on defendant's delay in
notifying his attorney, we cannot conclude that the trial court's
decision to deny defendant's motion to continue was an abuse of
discretion, especially in light of defendant's failure to advise
the court why the witness was necessary.
See T.D.R., 347 N.C. at
504, 495 S.E.2d at 708-09 (finding no abuse of discretion whendefendant failed to explain to trial judge why more than three
months was insufficient time for him to secure any necessary
evidence, and defendant submitted no affidavits to trial judge
indicating what facts might be proven by witness if continuance
granted).
In any event, the denial of a motion to continue will be
grounds for a new trial only if the "denial was erroneous and [the
defendant's] case was prejudiced as a result . . . ."
State v.
Gardner, 322 N.C. 591, 594, 369 S.E.2d 593, 596 (1988). To show
prejudice, a defendant must demonstrate that he did not have
sufficient time to confer with counsel and to investigate, prepare,
and present his defense.
State v. Williams, 355 N.C. 501, 540, 565
S.E.2d 609, 632 (2002),
cert. denied, 537 U.S. 1125, 154 L. Ed. 2d
808, 123 S. Ct. 894 (2003). To establish that the time allowed was
inadequate, the defendant must show how his case would have been
better prepared had the continuance been granted or that he was
materially prejudiced by the denial of his motion.
Id. at 540-41,
565 S.E.2d at 632.
Here, with respect to prejudice, defendant argues only that
his former girlfriend's testimony was "critically important" to
establish where defendant actually resided at the time of the
arrest. We have, however, reversed defendant's conviction on the
charge of knowingly or intentionally maintaining a place for the
keeping or selling of controlled substances, and defendant has made
no effort to explain how his ex-girlfriend's testimony would have
made a difference with respect to the possession charges. As aresult, even if the trial court had abused its discretion by
denying defendant's motion to continue, "[d]efendant has shown no
evidence that the lack of additional time prejudiced his case."
Id. at 540, 565 S.E.2d at 632. This assignment of error is,
therefore, overruled.
No error in part; reversed in part.
Judges HUNTER and ELMORE concur.
Footnote: 1