NC Supreme Court Broadens Coverage of “Maintaining a Dwelling”

Tag Archives: maintaining a dwelling

NC Supreme Court Broadens Coverage of “Maintaining a Dwelling”

Posted on October 8, 2018 by Jessica Smith

Maintaining a Dwelling — Part II

Posted on August 16, 2011 by Jessica Smith

The crime of maintaining a dwelling has four elements. To be guilty, a person must:

(1) knowingly

(2) keep or maintain

(3) a store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or other place

(4) (a) being resorted to by persons unlawfully using controlled substances or

(b) being used for unlawfully keeping or selling controlled substances.

In my last post on this crime, I focused on Element (2). In this post, I’ll focus on another area of confusion regarding this offense: Element (4)(b). While Element (2) requires that the defendant keep or maintain the property, Element (4)(b) requires that the property be used for unlawfully keeping or selling controlled substances. The statute’s use of the word “keep” in Element (2) and the related term “keeping” in Element (4)(b) has created some confusion, particularly because the terms mean different things in each element. As used in Element (2) the term “keep” refers to the defendant’s control and authority over the premises, vehicle, etc. In Element (4)(b), however, the word “keeping” refers to possession of controlled substances on or in the property.

As used in Element (4)(b), the term “keeping” “denotes not just possession, but possession that occurs over a duration of time.” State v. Dickerson, 152 N.C. App. 714, 716 (2002) (quoting State v. Mitchell, 336 N.C. 22, 32-33 (1994)). Thus, one isolated instance of possession on the property is insufficient evidence that the property is used for keeping controlled substances. Compare State v. Craven, ___ N.C. App. ___, 696 S.E.2d 750, 756 (2010) (sufficient evidence when the defendant possessed cocaine in a vehicle over a duration of time and/or on more than one occasion), temp. stay allowed, ___ N.C. ___, 700 S.E.2d 229 (2010), with State v. Thompson, 188 N.C. App. 102, 105 (2008) (insufficient evidence when the defendant possessed 2.1 grams of cocaine but there was no evidence that he used the premises to keep cocaine over a duration of time), and State v. Lane, 163 N.C. App. 495, 499-500 (2004) (insufficient evidence when drugs were found in the defendant’s vehicle on only one occasion and the evidence did not indicate possession over a duration of time). Similarly, when the allegation is that the property is being used for the selling of controlled substances, evidence of more than one sale is required. Compare State v. Moore, 188 N.C. App. 416, 424-25 (2008) (evidence was sufficient when it showed two sales), and State v. Calvino, 179 N.C. App. 219, 222-23 (2006) (same), with State v. Dickerson, 152 N.C. App. 714, 715 (2002) (the fact that the defendant was in his vehicle on one occasion when he sold a controlled substance did not demonstrate that the vehicle was used for the keeping or selling of controlled substances); State v. Lane, 163 N.C. App. 495, 499-500 (2004) (following Dickerson).

As a general matter, when determining whether the property is being used for keeping or selling controlled substances, the courts consider the totality of the circumstances. See, e.g., State v. Mitchell, 336 N.C. 22, 30 (1994); Moore, 188 N.C App. at 424. Factors relevant to the determination include:

the amount of controlled substances found, State v. Doe, 190 N.C. App. 723, 731 (2008) (insufficient evidence when 6.5 grams of cocaine was found); State v. Thompson, 188 N.C. App. 102, 106-07 (2008) (insufficient evidence when 2.1 grams of cocaine was found); State v. Battle, 167 N.C. App. 730, 734-35 (2005) (listing this as a relevant factor; insufficient evidence when the defendant possessed 1.9 grams of compressed cocaine powder);
whether a large amount of cash was found, Doe, 190 N.C. App. at 731 (listing this as a relevant factor); Thompson, 188 N.C. App. at 106-07 (no bright line test as to how much money is enough; $345 in cash insufficient); Frazier, 142 N.C. App. at 366 (listing this as a relevant factor; evidence sufficient when a wallet contained $1,493.00 in cash);
whether drug paraphernalia was found, Thompson, 188 N.C. App. at 106-08 (listing this as a relevant factor; evidence insufficient when no paraphernalia was found); Doe, 190 N.C. App. at 731 (same); Battle, 167 N.C. App. at 734 (same);
whether firearms were found, State v. Cowan, 194 N.C. App. 330, 337 (2008) (sufficient evidence when firearms were found at the home);
whether multiple cellular phones or pagers were found, Thompson, 188 N.C. App. at 106; Frazier, 142 N.C. App. at 366 (evidence sufficient when a number of pagers were found);
where there was other indicia of drug dealing, State v. Shine, 173 N.C. App. 699, 708 (2005) (evidence sufficient when, among other things, three pieces of scrap paper were found listing initials and corresponding dollar amounts, which the jury could infer was a list of customers and their orders or debts);
whether the defendant admitted selling controlled substances at the premises, Thompson, 188 N.C. App. at 107-08 (evidence insufficient when, among other things, the defendant did not admit to selling drugs); Doe, 190 N.C. App. at 731 (listing this as a relevant factor); Frazier, 142 N.C. App. at 366 (same);
whether there is witness testimony that drug sales occurred at the property, State v. Calvino, 179 N.C. App. 219, 222-23 (2006) (evidence sufficient when a witness so testified); and
whether a large numbers of people have been observed coming and going from the premises, Thompson, 188 N.C. App.at 107 (evidence insufficient when there was no evidence that people “were coming and going from his home in a manner to suggest they were buying drugs”).

Category: Uncategorized | Tags: controlled substances, drug offenses, maintaining a dwelling

Maintaining a Dwelling

Posted on August 15, 2011 by Jessica Smith

The crime of Maintaining a Store, Dwelling, Vehicle, Boat, or Other Place for Use, Storage, or Sale of Controlled Substances is a common one. In fact, AOC statistics show that this offense was charged over 14,000 times statewide in 2010. At trial, this crime presents a couple of complicated issues. One is: how does the State prove that the defendant “kept or maintained” the relevant property for the prohibited purposes?

In determining whether a person keeps or maintains property, the courts have considered the following factors:

that the defendant had title to or owned the property, State v. Spencer, 192 N.C. App. 143, 148 (2008); State v. Bowens, 140 N.C. App. 217, 221 (2000); State v. Allen, 102 N.C. App. 598, 608-09 (1991);
that the defendant paid taxes on the property, Spencer, 192 N.C. App. at 148; Bowens, 140 N.C. App. at 221;
that the defendant paid for repairs to or maintenance of the property, Spencer, 192 N.C. App. at 148; State v. Frazier, 142 N.C. App. 361, 365 (2001); Bowens, 140 N.C. App. at 221;
that the defendant paid rent on the property; Spencer, 192 N.C. App. at 148; State v. Hart, 179 N.C. App. 30, 41-42 (2006); Frazier, 142 N.C. App. at 366; Bowens, 140 N.C. App. at 221; State v. Alston, 91 N.C. App. 707, 711 (1988);
that the defendant paid the property’s utility bills or contributed to expenses associated with the property, State v. Fuller, 196 N.C. App 412, 424 (2009); Spencer, 192 N.C. App. at 148; State v. Moore, 188 N.C. App. 416, 424 (2008); Hart, 179 N.C. App. at 42; Frazier, 142 N.C. App. at 365; Bowens, 140 N.C. App. at 221; Allen, 102 N.C. App. at 609;
that the defendant resided at the property, Moore, 188 N.C. App. at 424; State v. Baldwin, 161 N.C. App. 382, 393 (2003);
that the defendant occupied the property, Spencer, 192 N.C. App. at 148; Frazier, 142 N.C. App. at 365; State v. Shine, 173 N.C. App. 699, 704 (2005); Bowens, 140 N.C. App. at 221;
that the defendant possessed the property over a duration of time, Frazier, 142 N.C. App. at 365; and
that the defendant had a key to the property, Frazier, 142 N.C.App. at 365; State v. Alston, 91 N.C. App. 707, 711 (1988).

Although occupancy is a relevant factor, evidence of occupancy alone is insufficient evidence to establish that the defendant kept or maintained the property. State v. Cowan, 194 N.C. App. 330, 337 (2008); Spencer, 192 N.C. App. at 148. However, evidence of residency standing alone is sufficient evidence. Cowan, 194 N.C. App. at 337 (evidence sufficient when the defendant told police that he resided at the premises); Spencer, 192 NC App. at 148 (same).

When determining whether the evidence is sufficient on this element, courts look to the totality of the circumstances. Fuller, 196 N.C. App. at 424; Hart, 179 N.C. App. at 41. Thus, cases arise in which the evidence is insufficient, even if one or more of the above-listed factors are present. See State v. Fuller, 196 N.C. App 412, 424-45 (2009) (the evidence was insufficient when the defendant discussed with the mobile home’s actual tenant, taking over the rent payments, but never reached an agreement to do so, a car similar to the defendant’s was regularly parked outside the trailer even after the tenant vacated, and defendant’s shoes and personal papers were found in the mobile home; there was no evidence that the defendant paid rent, utilities, or for repairs, made any repairs, or otherwise took responsibility for the mobile home; at most the evidence suggested that defendant occupied the mobile home trailer for approximately two months); State v. Toney, 187 N.C. App. 465, 471 (2007) (the evidence was insufficient when although the defendant occupied the hotel room one night and was present during the search, there was no evidence that he paid for the room or was a registered guest); State v. Carter, 184 N.C. App. 706, 710 (2007) (the defendant was the sole occupant of the residence when the search was conducted, three photographs found in a bedroom showed him in various places in the house, and the defendant’s identification and other papers were found there but none listed the residence as his home address; there was no evidence that the defendant owned the property or took any responsibility for it, and, in fact, a utility bill was found in the defendant’s brother’s name); State v. Harris, 157 N.C. App. 647, 651-53 (2003) (the evidence was insufficient when the defendant was seen at the house several times and some of his personal property was found in a bedroom; none of his papers listed the house as his address); State v. Kraus, 147 N.C. App. 766, 768-69 (2001) (the evidence was insufficient when it showed that the defendant had access to a key, spent the previous night in the motel room, and was present when the contraband was found; there was no evidence that she paid for or maintained the motel room and she had occupied it for less than 24 hours when law enforcement officers arrived); State v. Hamilton, 145 N.C. App. 152, 154 (2001) (the evidence was insufficient when the defendant visited an apartment leased to his girlfriend and regularly used her vehicles parked there); State v. Bowens, 140 N.C. App. 217, 221-22 (2000) (the evidence was insufficient when the defendant was seen in and out of the dwelling 8-to-10 times over 2-to-3 days, nobody else was seen entering the premises during this period of time, and men’s clothing was found in a closet in the dwelling; there was no evidence that the defendant owned or leased the dwelling or that he had any responsibility for the payment of the utilities or the general upkeep; furthermore, although men’s clothing was found in the dwelling, there was no evidence that the clothes belonged to the defendant).

Category: Crimes and Elements, Uncategorized | Tags: controlled substances, drug offenses, maintaining a dwelling

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