Criminal Practice – Drug Possession – Lay Identification – Website – Maintaining a Dwelling

State v. Alston (Lawyers Weekly No. 011-182-17, 8 pp.) (Hunter Murphy, J.) Appealed from Halifax County Superior Court (Alma Hinton, J.) N.C. App.

Holding: Where Deputy Radford was not proffered as an expert witness, and where he identified the pills found at defendant’s house through the use of www.drugs.com rather than the use of an expert or scientific analysis, the admission of Deputy Radford’s identification of the pills as Oxycodone and Alprazolam was plain error.

We vacate and remand for a new trial on the charges of possession of Schedule II and III controlled substances. We find no error in defendant’s conviction of maintaining a dwelling for keeping or selling controlled substances.

The state collected from defendant’s home a Schedule I controlled substance, marijuana, a glass jar that had the odor of marijuana inside of it, cigar wraps, a marijuana roach, digital scales, sandwich bags, and a security camera set up in defendant’s living room that observed the front yard. The state also located an illegal handgun in the constructive possession of defendant, a convicted felon. Particularly compelling is the evidence that Detective Dixon observed traffic at the residence over several days consistent with illegal drug trade, and observed a confidential source successfully buy a controlled substance from defendant’s residence.

The combination of Detective Dixon’s observations, the recent purchase of drugs from defendant’s residence, the discovery of drugs as well as the means to package and sell them in the home, the handgun in the constructive possession of a felon, and the security camera monitoring the front yard all create a set of circumstances in which a reasonable juror could find defendant maintained his dwelling for the purposes of keeping and selling controlled substances. The trial court did not err when it denied defendant’s motion to dismiss this charge.