Converted WP file 061307-1

Appeal by defendant from judgment entered 15 March 2006 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 April 2007.

Attorney General Roy Cooper, by Assistant Attorney General David W. Boone, for the State.

James M. Bell for defendant-appellant.

STEELMAN, Judge.

    The State presented substantial evidence that Peter Douglas Howie (defendant) kept or maintained a place for the keeping or selling of a controlled substance to withstand defendant's motion to dismiss the charge of maintaining a dwelling to keep marijuana.
    At trial, the State produced evidence tending to show that on 26 October 2004, U.S. Secret Service agents arrived at 1805 Club Road in Charlotte, North Carolina, as part of an investigation of internet-related financial crimes involving Jeremy Stevens. Christopher Carter and Peter Thomasuski were present at the residence that evening. They both stated that they were getting ready to move out and that they had been subletting the propertyfrom defendant. They gave consent for the agents to search the house, but they did not have access to a locked basement or a locked exterior shed.
    Two of the agents proceeded to defendant's house at 7614 Sharp Thorn. Defendant gave the agents consent to search the Club Road address and returned there with them after midnight on 27 October 2004. Special Agent Leddy testified defendant was extremely nervous as he unlocked the basement. When defendant asked if he could retrieve a computer from the basement by himself, Special Agent Leddy denied his request and informed him that they were aware that there were drugs in the basement. The agents subsequently observed that grow lamps were on in the basement and that some of the marijuana plants looked as if they had just been planted. Special Agent Leddy testified that the plants looked as if they had been cared for.
    Defendant admitted to the agents that he knew about the marijuana and he stated that a dryer in the basement was being used in the production of hashish. He said he had tried to shut down the marijuana operation and that Thomasuski and Carter had been taking care of the plants. When Agent Leddy told defendant that Thomasuski and Carter did not have keys to the basement, defendant responded that he had taken away their keys on the day before. After retrieving a computer and leaving the basement, the agents notified Charlotte-Mecklenburg police about the marijuana operation.    Approximately a week later, defendant gave a formal statement to the U.S. Secret Service about their investigation and also answered questions about the marijuana. He related that he had helped Jeremy Stevens and Brandon Coal rent the house on Club Street in October of 2003. Defendant denied living there, but he was there on a regular basis at first because he used the front room as an office. He told Officer Steven Philip Brown that Stevens had shown him the marijuana in the basement and had taught him how to maintain the operation. Defendant told him that Thomasuski and Carter knew about the marijuana and would help him water the plants so they would not die. In his statement, defendant related that he stopped receiving rent from Thomasuski and Carter after Stevens was arrested and jailed in June of 2004, and he then talked with the landlord about not renewing the lease.
    Special Agent Leddy estimated it was a twenty-minute drive between the Club Road and Sharp Thorn residences. Officer Brown believed that the largest plants in the basement were two or three months old and they appeared to have been cared for. He opined that the hydroponic seedlings located there would have needed to be checked at least daily and that the larger plants might have required care on a weekly or monthly basis. A chemist with the Charlotte-Mecklenburg crime laboratory testified that he analyzed the plant material seized from the basement and that it was marijuana.
    Carter testified that defendant, Stevens and Coal were on the lease for the Club Street address. He knew that marijuana was inthe basement prior to Stevens' arrest and stated that defendant and Stevens had built the marijuana operation. Carter saw the marijuana operation after Stevens was jailed because defendant paid him to install insulation and organize things in the basement. Defendant had given him access to a key to the basement after Stevens' arrest, but he was not supposed to go into the basement unless defendant was there. After Stevens was taken into custody, defendant was at the Club Road address more often. Defendant was there once a day, and Carter had observed defendant leaving the house with marijuana during that time.
    Following the trial court's denial of defendant's motion to dismiss at the close of the State's evidence, defendant's father testified that defendant was staying with him in Canada from 28 August 2004 to 23 October 2004. His father said defendant had moved to the Sharp Thorn address in March of 2003 and had never lived at the Club Road address. Defendant then renewed his motion to dismiss at the close of all the evidence, and the trial court again denied the motion.
    The Mecklenburg County grand jury indicted defendant on charges of manufacture of a controlled substance (marijuana) and maintaining a place to keep controlled substances (marijuana) on or about 27 October 2004. A jury found defendant guilty of manufacturing marijuana and of maintaining a dwelling to keep marijuana. The trial court consolidated the convictions for judgment and imposed a sentence of six to eight monthsimprisonment. This sentence was suspended and defendant was placed on supervised probation for twenty-four months. Defendant appeals.
    In his only assignment of error, defendant contends the trial court erred by denying his motion to dismiss the charge of maintaining a dwelling to keep marijuana for insufficiency of the evidence. We disagree.
    In his brief, defendant did not argue that the trial court erred in denying his motion to dismiss the charge of manufacturing marijuana . Therefore that portion of his assignment of error is deemed abandoned. N.C. R. App. P. 28(b)(6) (2006).
    Defendant argues that the charge of maintaining a dwelling on or about 27 October 2004, at 1805 Club Road for manufacturing marijuana was contrary to the evidence presented at trial. Defendant asserts that having “knowledge that a marijuana-growing operation had taken place at that address in the past” or arguably participating in that operation during his residency “at the Club Road address years before[] would be insufficient to find him guilty of carrying on such an operation at the specific time charged in the indictments.” We do not find this argument persuasive.
    In addressing a motion to dismiss criminal charges, the issue is “whether there is substantial evidence of each element of the offense charged.” State v. Holland, 161 N.C. App. 326, 328, 588 S.E.2d 32, 34 (2003). “'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. at 328, 588 S.E.2d at 34-35 (quoting State v.Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). The trial court is to consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference arising from it. Id. at 328, 588 S.E.2d at 35.
    “To obtain a conviction for knowingly and intentionally maintaining a place used for keeping and/or selling controlled substances under N.C. Gen. Stat. § 90-108(a)(7), the State has the burden of proving the 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). While defendant was not a resident of the Club Road address on 27 October 2004, whether he kept or maintained that “place[] within the meaning of N.C. Gen. Stat. § 90-108(a)(7) requires consideration of several factors, none of which are dispositive.” Id. Factors to be considered “include: occupancy of the property; payment of rent; possession over a duration of time; possession of a key used to enter or exit the property; and payment of utility or repair expenses.” Id.
    Through the testimonies of Special Agent Leddy, Officer Brown and Carter, along with defendant's formal statement, the State presented substantial evidence that defendant kept or maintained the Club Road property. Defendant leased the property with Stevens and Coal in October of 2003. Carter testified that defendant and Stevens had built the marijuana operation, and defendant indicated that Stevens had taught him how to maintain the operation. Defendant later sublet the property to Thomasuski and Carter while continuing to control access to the basement and the exterior shed. Defendant hired Carter to insulate and organize things in the basement, and he related that Carter and Thomasuski would help him water the plants. After Stevens was taken into custody, defendant was at the Club Road address more often. He was there once a day, and Carter had seen defendant leave the house with marijuana vegetation. When defendant stopped receiving rent from Thomasuski and Carter, he talked with the landlord about not renewing the lease. Although Stevens had been in custody for more than four months, Officer Brown testified to seeing new plants and plants which appeared to have been cared for that were two to three months old at the Club Road address on 27 October 2004. Accordingly, the trial court did not err in denying defendant's motion to dismiss the charge of maintaining a dwelling to keep marijuana.
    NO ERROR.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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