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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-115


Filed: 4 September 2007


         v.                        Brunswick County
                                Nos. 05 CRS 6296-6302
ADOLPH GARFIELD HOLMES, SR.                05 CRS 6396

    Appeal by Defendant from judgment entered 2 August 2006 by Judge D. Jack Hooks, Jr., in Superior Court, Brunswick County. Heard in the Court of Appeals 27 August 2007.

    Assistant Attorney General Roy Cooper, by Assistant Attorney General Robert DeVane Croom and Assistant Attorney General Thomas M. Woodward, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant-appellant.

    WYNN, Judge.

    This appeal arises from the trial court's denial of Defendant's motion to dismiss the charge of maintaining a dwelling for keeping or selling controlled substances. We find no error.     The State's evidence tended to show that in 2004, the Narcotics Division of the Brunswick County Sheriff's Department, launched an investigation of Defendant. The undercover operation called for the informant to make controlled purchases of crack cocaine from Defendant. The first controlled buy occurred on 25 February 2004 when the informant went to 922 Harry Bell Road. Defendant came out of the house and searched the vehicle in whichthe informant was seated, and made the drug transaction with the informant in the yard.
    The informant again went to 922 Harry Bell Road on 9 March 2004. This time, the informant knocked on the front door and entered the house. Defendant was inside watching surveillance monitors, and upon entry, directed the informant to the table where the informant placed the money, picked up the crack cocaine, and left. The informant noticed two cameras on the house near the front door. On the informant's next visit to the house on 15 March 2004, the informant noticed another camera had been mounted on the house. When the informant entered the residence, several police scanners and metal detectors were seen around the house. The informant was searched by Defendant, and then Defendant had his wife search the informant's breast area. After the informant counted out the money, Defendant handed the informant the crack cocaine.
    The informant's fourth purchase at the house occurred on 23 March 2004. When the informant arrived at Defendant's house, Defendant instructed the informant to come in and sit down, and that he was waiting to have the drugs brought to the house. The informant waited in the house for about an hour, and during that time, Defendant kept looking at the monitors. Finally, a gold car pulled up and the informant saw Defendant leave the house. The informant watched the monitors inside the house and saw Defendant go to the driver's side of the gold car and then come back inside with four bags of crack cocaine. The informant then proceeded topay for one of the bags and left. The informant made an additional controlled buy from Defendant in the parking lot of Hill's grocery store in Shallotte and purchased a total of 32.3 grams of crack cocaine from Defendant.
    Agent Brian Tully of the Brunswick County Sheriff's Department's Drug Enforcement Division testified that after the informant made her last controlled buy, he went to 922 Harry Bell Road where he observed several closed-circuit cameras on the exterior of the house. Inside the house, Agent Tully saw monitoring equipment and several police scanners in the living room and master bedroom; firearms; and a set of blue digital scales located in the kitchen.
    Defendant's 40-year-old son, Adolph Garfield Holmes, Jr., testified that he visited his father's home during February and March 2004. During a visit, he saw the informant buy drugs from his father while his mother was home. Holmes, Jr. testified: that Defendant had been selling cocaine from his home since Holmes, Jr. was a teenager; that Defendant had two cameras on the house positioned towards the road; that Defendant had a monitor in the living room and Defendant's bedroom; and that Defendant had police scanners. Holmes, Jr. further testified that the gun found by law enforcement officers was his father's and that Defendant owned blue and gray digital scales.
    Following a jury trial, Defendant was convicted of five counts of possession with the intent to sell and/or deliver a controlled substance, five counts of sell/deliver cocaine, conspiracy totraffick in cocaine, and knowingly maintaining a building for the unlawful keeping or selling of a controlled substance; and his admission to being an habitual felon. Defendant was sentenced as a habitual felon to a consolidated mitigated class C sentence of one hundred seven to one hundred thirty-eight months in prison.
    Defendant appeals, contending that the trial court erred by failing to dismiss the charge of maintaining a dwelling for the purpose of using, keeping, or selling a controlled substance. We disagree.
     The standard for ruling on a motion to dismiss “is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
    Defendant was charged with violating N.C. Gen. Stat. § 90-108(a)(7), which provides:
        It 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 [Article V of theNorth 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.

N.C. Gen. Stat. § 90-108(a)(7)(2005). To determine whether a Defendant maintained a dwelling, this Court has considered several factors, including: “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.” State v. Frazier, 142 N.C. App. 361, 365, 542 S.E.2d 682, 686 (2001). Cf., State v. Kraus, 147 N.C. App. 766, 769, 557 S.E.2d 144, 147 (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-four hours).
    Citing State v. Boyd, Defendant asserts that the State did not prove the element of maintaining a dwelling because there was no evidence to show he bore the expense of the house or was otherwise responsible for it. 177 N.C. App. 165, 628 S.E.2d 796 (2006). In Boyd, the evidence presented tying Defendant to the 809 Wilson Street residence was that: police observed the defendant at the house during a two-month long surveillance, “(1)the receipt from Advance Auto Parts, (2) the civil summons served upon defendant at that address, (3) the presence of male clothing, and (4) the fact that defendant sold drugs to the informant and remained at the residence until police executed the search warrant soon after the controlled buy.” Id. at 174, 628 S.E.2d at 804. This Court heldthat “[w]hile 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.
    Unlike the defendant in Boyd, who lived in the dwelling for a two-month duration, Defendant resided in the house at 922 Harry Bell Road for nearly twenty-years. In fact, Defendant sold drugs from his home since Defendant's son was a teenager. Testimony from Defendant's son, Agent Tully, and the informant show that Defendant had cameras mounted on the house and had monitors in the living room and bedroom. While Holmes Jr. visited Defendant and his mother, he saw the informant purchase cocaine from Defendant. Holmes, Jr. also testified that the gun found by law enforcement officers was Defendant's. These circumstances would allow a reasonable jury to conclude that Defendant maintained, kept, or was responsible for the dwelling.
    Accordingly, we hold that the trial court properly denied Defendant's motion to dismiss the charge of maintaining a dwelling for keeping or selling controlled substances.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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