Criminal Practice – Keeping or Maintaining a Dwelling – Keeping or Selling of Controlled Substances

Because the State presented substantial evidence that Defendant kept or maintained a dwelling for the purposes of keeping or selling controlled substances, the trial court properly denied Defendant’s motion to dismiss.

We found no error.

Defendant appealed from judgments entered upon guilty verdicts of various crimes, including keeping or maintaining a dwelling for the keeping or selling of controlled substances. Defendant argued the trial court erred by denying his motion to dismiss the charge of keeping or maintaining a dwelling because there was insufficient evidence of the “keeping or maintaining” element of the offense.

N.C. Gen. Stat. § 90-108(a)(7) governs the crime of keeping or maintaining a dwelling and provides that it is unlawful for any person “[t]o knowingly keep or maintain any . . . dwelling house . . . or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article.” To survive a motion to dismiss, the State must present substantial evidence that a defendant did (1) intentionally (2) keep or maintain (3) a dwelling (4) which is used for the keeping or selling (5) of controlled substances. State v. Mitchell, 336 N.C. 22, 31 (1994), overruled in part on other grounds by State v. Rogers, 371 N.C. 397 (2018). The element of keeping or maintaining “refers to possessing something for at least a short period of time . . . for a certain use.”

While mere occupancy of a property, without more, will not support the “keeping or maintaining” element, “evidence of residency, standing alone, is sufficient to support the element of maintaining.” State v. Spencer, 192 N.C. App. 143, 148 (2008). Proof of residency may be established by a defendant’s admission. Proof of residency may also be shown through circumstantial evidence. Here, the State presented substantial evidence that Defendant kept or maintained a dwelling, because the evidence shows that Defendant was a resident of his parents’ home. First, Defendant admitted during his interview with detectives that he had “been” at his parents’ home “on and off since 2005,” a period of more than fifteen years. This admission of residency, “standing alone, is sufficient to support the element of maintaining.”

Further, the State presented the following evidence that Defendant “used, treated, and perceived [his parents’ home] as his residence and not merely as a place he occupied . . . from time to time”: When directly questioned by a detective, Defendant admitted that an upstairs’ bedroom in his parents’ home was his room; detectives found a piece of mail on a dresser in Defendant’s bedroom bearing his name and parents’ address; detectives found a basket of men’s clothing in Defendant’s bedroom, along with “bindles and bundles of . . . heroin” inside a grocery bag that was located inside of the basket; detectives “found a Newport cigarette box that contained bindles of heroin,” a digital scale, and a package of Narcan on Defendant’s bedside table, and they “found a Smith & Wesson handgun on [Defendant’s] bed”; Defendant admitted during his police interview that he had used heroin “on and off” for more than twenty years; and when questioned by a detective about the heroin found in his bedroom, Defendant responded “uh-huh” to using the heroin but denied selling it. This evidence further supports that Defendant kept or maintained a dwelling for the purposes of keeping or selling controlled substances. As Defendant admitted to residing at his parents’ home on and off for more than 15 years, and there was abundant other evidence that Defendant resided at his parents’ home, the State presented substantial evidence of the “keeping or maintaining” element of N.C. Gen. Stat. § 90-108(a)(7).

No error.

State of North Carolina v. David Lee Rowland (Lawyers’ Weekly No. 011-062-25, 7 pp.) (Allegra Collins, J.) Appealed from Wake County Superior Court (Paul C. Ridgeway, J.) Attorney General Jeff Jackson, by Assistant Attorney General Yvonne B. Walker, for the State-Appellee; Jarvis John Edgerton, IV, for Defendant-Appellant. North Carolina Court of Appeals