Appeal by defendant from judgment entered 21 July 2006 by
Judge Alma L. Hinton in Pitt County Superior Court. Heard in the
Court of Appeals 22 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.
Mary March Exum for defendant-appellant.
Defendant Larry Dale Toney appeals from convictions of
possession with intent to sell or deliver marijuana; possession of
Xanax; possession of methadone; possession of drug paraphernalia;
and knowingly maintaining a dwelling for the purpose of keeping
controlled substances. On appeal, defendant argues that the trial
court erred in denying his motion to suppress evidence obtained in
a search of his hotel room and in denying his motion to dismiss the
charge of maintaining a dwelling for the purposes of keeping
controlled substances. Because defendant's wife consented to the
search of the hotel room, we hold that the trial court properly
denied defendant's motion to suppress. With respect to the motion
to dismiss, however, we agree with defendant that State v. Kraus,
147 N.C. App. 766, 557 S.E.2d 144 (2001), requires that we reverse
defendant's conviction for maintaining a dwelling for the purpose
of keeping controlled substances and remand for resentencing.
On 16 July 2003, Officer Michael Dawson of the Greenville
Police Department was dispatched to assist Emergency Medical
Services with a reportedly unconscious woman lying outside of a
hotel room. When Officer Dawson arrived, a white female, who had
scratches and dried blood on her, was lying on the ground in front
of room 237. Officer Dawson and another Greenville Police officer
woke the woman and offered her medical assistance, but she refused.
The woman identified herself as Amy Toney and told Officer Dawson
that she and her husband _ who was later identified as defendant _were using drugs in the room the night before and that there might
still be drugs present in the room. Ms. Toney explained that, at
some point during the night, she had left the room, and when she
could not get back in, she fell asleep outside the door.
After Officer Dawson unsuccessfully attempted to awaken
defendant by knocking on the door, hotel management arrived with a
key and opened the door for Ms. Toney. When the door was open,
Officer Dawson could see digital scales and plastic baggies on a
dresser about two or three feet from the door. Officer Dawson
testified that these items are commonly used in the packaging of
narcotics for distribution. Defendant was lying on the bed.
Ms. Toney gave Officer Dawson consent to search the hotel
room. During the search, the officers discovered several pills,
including some in a prescription bottle with the name "Kemp
Leonard" on it that was located in a duffle bag containing both
men's and women's clothing. They also found a small amount of
marijuana in the sheets of the bed. After Ms. Toney gave the
officers consent to search her car, a third officer found between
three and four pounds of marijuana in a plastic grocery bag. The
car was registered to Ms. Toney.
Both defendant and his wife were arrested and transported to
the Greenville Police Department. Defendant was subsequently
indicted with possession with intent to manufacture, sell, and
deliver methadone; knowingly and intentionally maintaining a
dwelling for the purposes of keeping and/or selling controlled
substances; conspiracy to sell methadone; possession with intent tomanufacture, sell, and deliver Klonopin; conspiracy to sell
Klonopin; possession of drug paraphernalia; possession with intent
to sell and deliver Xanax; conspiracy to deliver Xanax; felonious
possession of marijuana; possession with intent to sell and deliver
marijuana; conspiracy to sell marijuana; and conspiracy to deliver
At the close of all the evidence, defendant made a motion to
dismiss that the trial court allowed as to the conspiracy charges
and all charges involving Klonopin. During the charge conference,
the trial court also dismissed the charge of felonious possession
of marijuana. The jury found defendant guilty of possession of
marijuana with intent to sell or deliver it, possession of
methadone, knowingly maintaining a place for keeping and/or selling
controlled substances, possession of Xanax, and possession of drug
paraphernalia. The trial court consolidated the charges and
sentenced defendant to a single presumptive range term of 7 to 9
months imprisonment. Defendant timely appealed to this Court.
 Defendant first challenges the trial court's denial of his
motion to suppress. During Officer Dawson's testimony, defendant
made an oral motion to suppress evidence seized as a result of the
search of the hotel room. After allowing voir dire examination of
Officer Dawson, the trial judge orally denied the motion.
Defendant argues that the trial court erred in failing to make
written findings of fact in violation of N.C. Gen. Stat. § 15A-
977(f) (2005). Alternatively, defendant contends that the searchviolated the Fourth Amendment because Officer Dawson lacked valid
consent to search the hotel room.
N.C. Gen. Stat. § 15A-977(f) provides that when a trial court
is deciding a motion to suppress, "[t]he judge must set forth in
the record his findings of facts and conclusions of law." Although
the statute does not, on its face, seem to require written, as
opposed to oral, findings of fact, we need not address defendant's
argument. N.C. Gen. Stat. § 15A-977(f) notwithstanding, our
Supreme Court has held that "[i]f there is not a material conflict
in the evidence, it is not reversible error to fail to make such
findings because we can determine the propriety of the ruling on
the undisputed facts which the evidence shows." State v. Lovin
339 N.C. 695, 706, 454 S.E.2d 229, 235 (1995).
Upon review of the evidence, we have identified no material
conflict in the evidence. Officer Dawson was the only witness to
testify in connection with defendant's oral motion to suppress.
Defendant contends that a conflict arose out of Officer Dawson's
testimony and his official report regarding "[h]ow entry into the
[hotel] room was obtained . . . ." The evidence, however, was
undisputed that the officers' actual entry into the room was the
result of their asking Ms. Toney for consent to search the room and
her specific consent that they do so. There is no evidence that
the officers entered the room prior to receiving that consent. The
only possible conflict was as to whether Ms. Toney specifically
asked hotel management to unlock the room door. This conflict is
immaterial given Ms. Toney's express consent to the officers' entryand the complete lack of any evidence that the officers relied upon
what they saw through the opened hotel room door as a basis for
entry into the room. Since there was no material dispute in the
evidence in this case, findings of fact were not required.
Defendant next contends that it was "unreasonable for Officer
Dawson to accept consent from Mrs. Toney to enter the room when the
only evidence available to the police was that she said it was her
room." The United States Supreme Court has held that "permission
to search [may be] obtained from a third party who possessed common
authority over or other sufficient relationship to the premises or
effects sought to be inspected." United States v. Matlock
U.S. 164, 171, 39 L. Ed. 2d 242, 250, 94 S. Ct. 988, 993 (1974).
In the absence of actual authority, a search may still be proper if
an officer obtains consent from a third party whom he reasonably
believes has authority to consent. Illinois v. Rodriguez
, 497 U.S.
177, 189, 111 L. Ed. 2d 148, 161, 110 S. Ct. 2793, 2801 (1990).
N.C. Gen. Stat. § 15A-222(3) (2005) codifies the principle set
forth in Rodriguez
and allows a third party to give consent when he
or she is "reasonably apparently entitled to give or withhold
consent to a search of premises."
In this case, Ms. Toney gave consent for the search of the
hotel room. Ms. Toney was found outside the hotel room, identified
herself, and explained that she was staying in the room with her
husband, but had gotten locked out during the night. Our Supreme
Court has held that "a wife may consent to a search of the premises
she shares with her husband." State v. Worsley
, 336 N.C. 268, 283,443 S.E.2d 68, 76 (1994). Since there is no dispute that Ms. Toney
was married to defendant and that they were sharing the hotel room,
she could validly consent to a search of the room. Moreover, hotel
management confirmed that Ms. Toney was a lawful occupant of the
room by letting her into the room. At that point, Ms. Toney
consented to a search of the room. We see no basis for holding
that this consent was insufficient to justify the search. Since
defendant makes no other argument regarding the legality of the
search, we hold that the trial court properly denied the motion to
 Next, defendant argues that the trial court erred in
denying his motion to dismiss the charge of maintaining a dwelling
for the purpose of keeping controlled substances. In ruling on
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 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). In
reviewing the evidence, the court must draw all reasonable
inferences in the State's 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). N.C. Gen. Stat. § 90-108(a)(7) (2005) provides that 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, 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." A "pivotal"
question under this statute "is whether there is evidence that
defendant owned, leased, maintained, or was otherwise responsible
for the premises." State v. Boyd
, 177 N.C. App. 165, 174, 628
S.E.2d 796, 804 (2006).
Defendant argues that the State failed to present sufficient
evidence that he "maintained" the hotel room. "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)), rev'd on other grounds
, 332 N.C. 123, 418 S.E.2d 225
, this Court addressed similar evidence to that
presented in this case. Law enforcement officers arrived at a
hotel after management had complained of a marijuana smell
emanating from a hotel room. Law enforcement obtained consent from
the registered guest to search the room and found quantities of
marijuana and crack cocaine in addition to drug paraphernalia.
, 147 N.C. App. at 767, 557 S.E.2d at 146. In considering
whether the State presented sufficient evidence that the defendant"maintained" the hotel room to uphold a conviction under N.C. Gen.
Stat. § 90-108(a)(7), the Court pointed out that the State's
evidence only "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." Id.
557 S.E.2d at 147. Although this evidence supported a finding of
occupancy of the motel room, the State presented no evidence that
defendant "rent[ed] the room or otherwise finance[d] its upkeep."
The Court further noted that the defendant had occupied the
room for only 24 hours. The Court held: "Under these facts, the
State failed to present sufficient evidence from which a reasonable
jury could conclude that defendant maintained the motel room." Id.
This case is materially indistinguishable from Kraus
State's evidence shows that defendant occupied the room one night
and was present during the search. There is no evidence that he
paid for the room or was even a registered guest in the room. It
would be mere speculation that defendant, as opposed to his wife,
maintained or kept the room. Kraus
mandates that we reverse
defendant's conviction for maintaining a dwelling for the purposes
of keeping controlled substances.
The State, however, contends that State v. Frazier
, 142 N.C.
App. 361, 542 S.E.2d 682 (2001), supports defendant's conviction.
, the State presented evidence that the defendant had
lived in the hotel room where the drugs were found for six or seven
weeks, "sometimes" paid rent for the room, and was present in the
room during daytime hours. Id.
at 365-66, 542 S.E.2d at 686. Thisevidence was held sufficient to prove that the defendant "kept or
maintained" the hotel room. Id.
at 366, 542 S.E.2d at 686. Since
the State, in this case, presented no evidence that defendant paid
any amount for the hotel room and the evidence did not indicate
that defendant had inhabited the room for longer than 24 hours, we
believe this case is controlled by Kraus
and not Frazier
We, therefore, reverse defendant's conviction of the
misdemeanor charge of knowingly maintaining a place for the purpose
of keeping or selling controlled substances. Defendant has failed
to demonstrate any error with respect to the remaining convictions.
Since, however, the trial court consolidated the convictions into
a single judgment for purposes of sentencing, we must remand for
resentencing. See State v. Brown
, 350 N.C. 193, 213, 513 S.E.2d
57, 70 (1999) (after vacating one of defendant's convictions,
remanding to trial court for resentencing on remaining conviction
because Court could not "assume that the trial court's
consideration of two offenses, as opposed to one, had no affect on
the sentence imposed").
No error in part; reversed and remanded for resentencing in
Judges CALABRIA and JACKSON concur.
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