State v. Miller , 264 N.C. App. 517 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1215-2
Filed: 19 March 2019
Union County, No. 12 CRS 53800
STATE OF NORTH CAROLINA
v.
MARVIN LOUIS MILLER, JR.
Appeal by defendant from judgment entered 28 April 2017 by Judge
Christopher W. Bragg in Union County Superior Court. Originally heard in the Court
of Appeals 2 May 2018, with unanimous opinion issued 7 August 2018. The Supreme
Court of North Carolina allowed the State’s petition for discretionary review on 5
December 2018, for the limited purpose of remanding for reconsideration to this Court
in light of that Court’s recent decision in State v. Rogers, __ N.C. __, 817 S.E.2d 150
(2018).
Attorney General Joshua H. Stein, by Assistant Attorney General James D.
Concepción, for the State.
Leslie Rawls for defendant-appellant.
TYSON, Judge.
This case is before this Court on remand by Order of the North Carolina
Supreme Court to be reconsidered in light of that Court’s recent decision in State v.
Rogers, __ N.C. __, 817 S.E.2d 150 (2018).
STATE V. MILLER
Opinion of the Court
I. Factual and Procedural Background
The facts underlying this case are set forth in detail in our Court’s previous
opinion, State v. Miller, __ N.C. App. __, 817 S.E.2d 503, 2018 WL 3734368 (2018)
(unpublished). They are recounted briefly below.
The State’s evidence showed Union County Sheriff’s Sgt. Mark Thomas
received a complaint asserting Defendant was “involved in sales and narcotics” and
began an investigation. Sgt. Thomas hired a trusted confidential informant to
attempt to purchase crack cocaine from Defendant. After Thomas contacted the
informant, she told Sgt. Thomas she knew Defendant, but did not assert she had
previously purchased drugs from him. Officers provided the informant with a
recording device and $48.00 in cash. The informant went to Defendant’s home and
was allowed to enter into his living room. She had a conversation with Defendant
and a female, who was also present inside the house. She gave Defendant $48.00 to
purchase crack cocaine. Defendant left the room, walked outside and went towards
an old school bus parked on his property. When Defendant returned, he provided the
requested crack cocaine rocks to the informant, who then shared a portion of the rocks
with the other female inside the house.
Defendant was indicted for possession with intent to sell and deliver cocaine,
sale of cocaine, and maintaining a place to keep controlled substances. The jury
convicted Defendant on all three counts. Defendant appealed to this Court.
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Opinion of the Court
Defendant’s sole argument asserts that the trial court erred by denying his
motion to dismiss the charge of maintaining a place to keep controlled substances.
This Court unanimously agreed and reversed Defendant’s conviction for that one
count. Miller, 2018 WL 3734368 at *2. The Supreme Court of North Carolina issued
its 17 August 2018 opinion in Rogers, __ N.C. __, 817 S.E.2d 150. The Court also
remanded this case for our reconsideration based upon the issue before the Court in
Rogers, __ N.C. __, 817 S.E.2d 150.
II. Analysis
In deciding State v. Miller (“Miller I”), this Court relied in part upon State v.
Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994), to reach the conclusion that the State
had failed to present sufficient evidence tending to show Defendant was maintaining
a dwelling for the keeping of a controlled substance in violation of N.C. Gen. Stat. §
90-108(a)(7). In Rogers, our Supreme Court disavowed its earlier statement in
Mitchell that “keep” denotes “not just possession, but possession that occurs over a
duration of time.” Rogers, __ N.C. at __, 817 S.E.2d at 156. To determine Rogers’
impact on Defendant’s case, we initially review Mitchell.
A. State v. Mitchell
In Mitchell, the State’s evidence was that a convenience store clerk had seen
the defendant exit a car with darkly tinted windows. When the defendant approached
the clerk’s counter and asked for rolling papers, the clerk asked what was in his
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Opinion of the Court
pockets. The defendant acknowledged it was marijuana and handed it to the clerk.
The clerk called the police. Id. at 31, 442 S.E.2d at 29.
Our Supreme Court recognized the “fundamental issue” was whether the
evidence produced by the State was enough to prove that the defendant’s “vehicle was
used for keeping or selling marijuana.” Id. at 32, 442 S.E.2d at 29. The State had
shown that the defendant possessed two bags of marijuana while in his car, that his
car contained a marijuana cigarette the following day, and that in a subsequent
search of his home, police found two marijuana cigarettes, plastic baggies and scales.
Id. at 33, 442 S.E.2d at 30.
The Court in Mitchell held “[t]hat an individual within a vehicle possesses
marijuana on one occasion cannot establish that the vehicle is ‘used for keeping’
marijuana; nor can one marijuana cigarette found within the car establish that
element. . . . we do not believe that our legislature intended to create a separate crime
simply because the controlled substance was temporarily in a vehicle.” Id.
In its opinion holding the State had not shown that the vehicle was used for
selling or keeping a controlled substance, the Court reiterated: “the focus of the
inquiry is on the use, not the contents, of the vehicle.” Id. at 34, 442 S.E.2d at 30.
Recognizing that while the contents of a vehicle are relevant in the determination of
whether the vehicle was used for the sale of drugs, the presence of a marijuana
cigarette did not alone “implicate the car with the sale of drugs.” Id. at 33, 442 S.E.2d
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Opinion of the Court
at 30. The Court also cited cases in which the presence of drugs, together with other
incriminating circumstances – such as the defendant’s financing and supervision of a
place known for drug transactions, or the presence of numerous items of drug
paraphernalia or large amounts of cash – supported “[t]he determination of whether
a vehicle, or a building, is used for keeping or selling controlled substances will
depend on the totality of the circumstances.” Id. at 34, 442 S.E.2d at 30.
B. State v. Dickerson
This Court’s decision in Miller I also cites State v. Dickerson, 152 N.C. App.
714, 568 S.E.2d 281 (2002), as support to show the State’s evidence of a single sale is
“insufficient to withstand his motion to dismiss.” Miller I, 2018 WL 3734368 at * 2.
In Dickerson, the defendant was arrested and charged with, among other
things, “keeping and/or maintaining a motor vehicle for the sale and/or delivery of
cocaine.” 152 N.C. App. at 715, 568 S.E.2d at 281. The defendant had been charged
after completing a single cocaine sale to a law enforcement officer. Id. A police
informant arranged an undercover drug purchase from the defendant. The defendant
met the informant and the undercover officer in a parking lot behind the informant’s
apartment. Id. When the informant and officer arrived, the defendant was seated in
the passenger seat and an unidentified person was in the driver’s seat of the vehicle.
Id. It was later determined that the vehicle was registered to the defendant. Id.
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Opinion of the Court
This Court cited the now abrogated language from Mitchell and relied upon
the Court’s statement in Mitchell “[t]hat an individual within a vehicle possesses
marijuana on one occasion cannot establish . . . the vehicle is ‘used for keeping’
marijuana; nor can one marijuana cigarette found within the car establish that
element.” Id. at 716, 568 S.E.2d at 282 (quoting Mitchell, 336 N.C. at 33, 442 S.E.2d
at 30). The State had presented no evidence in addition to the “[d]efendant having
been seated in a vehicle when the cocaine purchase occurred.” Id. at 716-17, 568
S.E.2d at 282.
This Court held “the fact that a defendant was in his vehicle on one occasion
when he sold a controlled substance does not by itself demonstrate the vehicle was
kept or maintained to sell a controlled substance[]” and reversed the defendant’s
conviction of keeping and/or maintaining a motor vehicle for the sale and/or delivery
of cocaine. Id. We need not address whether Rogers would require a different outcome
in Dickerson, as Dickerson does not singularly control the outcome of the present case.
C. State v. Rogers
In State v. Rogers, law enforcement was familiar with the defendant after a
months-long drug investigation. __ N.C. at __, 817 S.E.2d at 152. A detective obtained
information implicating the defendant in drug activity that “needed to be acted upon
that day.” Id. The detective also learned that the defendant would be driving a
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Opinion of the Court
particular white Cadillac, registered to another person, and staying in a particular
room of a specific hotel. Id. at __, 817 S.E.2d at 152-53.
The officers followed the defendant as he drove around and pulled him over to
serve outstanding arrest warrants. Id. While the defendant was held in police
custody, he received numerous text messages containing the slang term, “lick,” which
the officer knew to describe someone who purchases drugs. Id. After obtaining a
search warrant, the officers searched the defendant’s white Cadillac and found two
purple plastic baggies containing cocaine in the space covering the gas cap. Id. The
gas cap release door was only operated from inside of the car. Id. Inside the car, the
officers found a marijuana cigarette, $243.00 in cash hidden inside a boot and a
months’ old car service receipt for the white Cadillac with the defendant’s name on
it. Id. At the defendant’s hotel room, officers found similar purple plastic baggies
containing larger amounts of cocaine, scales and small zip-lock bags. Id.
The issues before the Court in Rogers were: (1) whether there was substantial
evidence tending to show the defendant kept or maintained the Cadillac; and, (2)
whether there was substantial evidence the car was used for the keeping of controlled
substances. The Court answered the first question in the affirmative, holding “the
word ‘keep,’ in the ‘keep or maintain’ language of subsection 90-108(a)(7), refers to
possessing something for at least a short period of time—or intending to retain
possession of something in the future—for a certain use.” Id. at __, 817 S.E.2d at 154.
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Opinion of the Court
The Court noted not only had officers observed the defendant arrive and depart from
his hotel room driving the white Cadillac, a service receipt for that vehicle bearing
the defendant’s name was found inside of the car. The receipt was dated two and a
half months prior to the defendant’s arrest. Id.
With respect to the second question, “used for the keeping of” controlled
substances, the Court in Rogers concluded that the defendant was using the car “to
store crack cocaine when he was arrested.” Id. at __, 817 S.E.2d at 152. To reach this
conclusion, the Court re-analyzed Mitchell.
Mitchell interpreted “the keeping . . . of [drugs]” to
mean “not just possession, but possession that occurs over
a duration of time.” But the statutory text does not require
that drugs be kept for “a duration of time.” As we have
seen, the linchpin of the inquiry into whether a defendant
was using a vehicle, building, or other place “for the
keeping . . . of” drugs is whether the defendant was using
that vehicle, building, or other place for the storing of
drugs. So, for instance, when the evidence indicates that a
defendant has possessed a car for at least a short period of
time, but that he had just begun storing drugs inside his car
at the time of his arrest, that defendant has still violated
subsection 90-108(a)(7)—even if, arguably, he has not
stored the drugs for any appreciable “duration of time.” The
critical question is whether a defendant’s car is used to
store drugs, not how long the defendant’s car has been used
to store drugs for. As a result, we reject any notion that
subsection 90-108(a)(7) requires that a car kept or
maintained by a defendant be used to store drugs for a
certain minimum period of time—or that evidence of drugs
must be found in the vehicle, building, or other place on
more than one occasion—for a defendant to have violated
subsection 90-108(a)(7). But again, merely having drugs in
a car (or other place) is not enough to justify a conviction
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Opinion of the Court
under subsection 90-108(a)(7). The evidence and all
reasonable inferences drawn from the evidence must
indicate, based “on the totality of the circumstances,” that
the drugs are also being stored there. To the extent that
Mitchell’s “duration of time” requirement conflicts with the
text of subsection 90-108(a)(7), therefore, this aspect of
Mitchell is disavowed.
Id. at __, 817 S.E.2d at 156-57 (internal citations omitted) (emphasis supplied).
Rogers specifically states the result reached in Mitchell is correct, but
Mitchell’s reasoning that “keep” “denotes not just possession, but possession that
occurs over a duration of time” was an incorrect interpretation of N.C. Gen. Stat. §
90-108(a)(7). Rogers, N.C. at __, 817 S.E.2d at 156. Our prior opinion in Miller I
specifically cites to this now abrogated portion of Mitchell.
Rogers’ disavowal and removal of the “duration of time” of possession does not
undermine our holding that an isolated or single incident of Defendant selling a
controlled substance from his home fails to demonstrate that he “used” or maintained
the home to keep or sell drugs in violation of § 90-108(a)(7). After clarifying the term
“keep” as used in each clause of the crime of maintaining a dwelling, our Supreme
Court in Rogers qualified,
But again, merely having drugs in a car (or other place) is
not enough to justify a conviction under subsection 90-
108(a)(7). The evidence and all reasonable inferences
drawn from the evidence must indicate, based “on the
totality of the circumstances,” that the drugs are also being
stored there.
Rogers, __N.C. at __, 817 S.E.2d at 157 (internal citations omitted) (emphasis
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Opinion of the Court
supplied).
The State’s evidence tends to show that drugs were kept on Defendant’s
property on this one occasion. The question is whether the evidence shows he
possessed the property for the purpose of selling or keeping cocaine.
III. Totality of the Circumstances
In determining whether a defendant maintained a
dwelling for the purpose of selling illegal drugs, this Court
has looked at factors including the amount of drugs present
and paraphernalia found in the dwelling.” State v. Battle,
167 N.C. App. 730, 734, 606 S.E.2d 418, 421 (2005)
(emphasis omitted). Our Court has also noted that the
discovery of “a large amount of cash” in the dwelling or
building can indicate that a particular place is being used
to keep or sell controlled substances. State v. Frazier, 142
N.C. App. 361, 366, 542 S.E.2d 682, 686 (2001).
State v. Williams, 242 N.C. App. 361, 373, 774 S.E.2d 880, 889 (2015), disc. review
denied, __N.C. __, 782 S.E.2d 516 (2016).
In Williams, the State presented evidence tending to show a bag containing
almost 40 grams of a controlled substance “was discovered inside the pocket of a pair
of men’s pants within [d]efendant’s bedroom closet alongside another plastic bag,
which contained ‘numerous little corner baggies.’” Id. Digital scales and U.S.
currency of $460.00 in twenty-dollar bills were also found in the same bedroom. The
State offered testimony that the corner baggies and digital scales are typically used
to package and sell drugs. Id. Testimony was also admitted that “purchases of
controlled substances are frequently made in $20 increments.” Id.
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Opinion of the Court
This Court held this evidence was sufficient to permit “a reasonable jury to
conclude that the residence in question was being used for keeping or selling
controlled substances.” Id. (quoting State v. Shine, 173 N.C. App. 699, 708, 619 S.E.2d
895, 900 (2005) (evidence that digital scales “of the type frequently used to weigh
controlled substances for sale” were found in residence in close proximity to two bags
of cocaine and scrap papers with names and dollar amounts written on them was
sufficient to show residence was used for keeping or selling controlled substances)).
The Supreme Court also cited this Court’s prior decision in State v. Rich, 87
N.C. App. 380, 361 S.E.2d 321 (1987), which held that the discovery of cocaine along
with evidence of “materials related to the use and sale” of drugs, such as “numerous
small plastic bags, and ‘tools commonly used in repackaging and selling cocaine’” was
sufficient to sustain the defendant’s conviction under N.C. Gen. Stat. § 90-108(a)(7).
Williams, 242 N.C. App. at 373, 774 S.E.2d at 889 (citing Rich, 87 N.C. App. at 383-
84, 361 S.E.2d at 324).
The holdings in Williams and Rich are not anomalous. Prior precedents have
consistently held the State must produce other incriminating evidence to show that
based “on the totality of the circumstances,” the vehicle or building was used for
selling or keeping the controlled substance. See, e.g., State v. Baxter, 285 N.C. 735,
738, 208 S.E.2d 696, 698 (1974) (“jury could reasonably infer an intent to distribute
from the amount of the substance found, the manner in which it was packaged and
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Opinion of the Court
the presence of other packaging materials”); State v. Cowan, 194 N.C. App. 330, 337,
669 S.E.2d 811, 817 (2008) (trial court did not err in denying the defendant’s motion
to dismiss the charge of maintaining a dwelling where there was evidence that the
“defendant possessed controlled substances, ‘materials related to the use and sale’ of
controlled substances, and firearms”); State v. Simpson, 230 N.C. App. 119, 122, 748
S.E.2d 756, 759 (2013) (evidence showing only that the defendant and another used
controlled substances in the defendant’s vehicle insufficient to show that the
defendant “allowed others to resort to his vehicle to consume controlled substances”
in violation of § 90-108(a)(7)).
As restated in Rogers, the State must produce other incriminating evidence of
the “totality of the circumstances” and more than just evidence of a single sale of
illegal drugs or “merely having drugs in a car (or other place)” to support a conviction
under this charge. Rogers, __ N.C. at __, 817 S.E.2d at 156.
Here, the State offered no evidence showing any drugs or drug paraphernalia,
scales, residue, baggies, large amounts of cash, weapons, or other implements of the
drug trade, were observed or seized from Defendant’s home. The State offered no
evidence of any other drug sales taking place at Defendant’s home, beyond the sale
at issue.
The Supreme Court’s holding in State v. Rogers and this Court’s other cases
involving maintaining a dwelling for keeping or selling controlled substances support
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Opinion of the Court
and confirm this Court’s unanimous conclusion in Miller I. Defendant’s conviction
for maintaining a dwelling was properly reversed for the trial court’s failure to grant
Defendant’s motion to dismiss at trial. Under “the totality of the circumstances,”
“merely having drugs in a car [or residence] is not enough to justify a conviction under
subsection 90-108(a)(7).” Rogers, __ N.C. at __, 817 S.E.2d at 157.
IV. Conclusion
State v. Rogers is distinguishable from the instant case in that it involves the
keeping of drugs in a motor vehicle, where other drugs and incriminating evidence of
ongoing sales of drugs were present. Rogers’ disavowal of the duration of time
language in State v. Mitchell does not compel or mandate a different outcome in the
present case.
Under the required consideration of “the totality of the circumstances,” the
State failed to present sufficient other incriminating evidence, beyond a single sale,
to show Defendant kept or maintained a dwelling for the keeping or sale of cocaine.
As this Court previously held, the trial court erred by denying Defendant’s motion to
dismiss that count. Defendant’s conviction of maintaining a dwelling for the keeping
or sale of cocaine is reversed. It is so ordered.
REVERSED.
Chief Judge McGEE and Judge ZACHARY concur.
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