An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1100
Filed: 21 April 2015
Sampson County, Nos. 13 CRS 50318, 14 CRS 147
STATE OF NORTH CAROLINA
v.
JOHNNY WILLIAMS
Appeal by defendant from judgment entered 30 May 2014 by Judge W. Douglas
Parsons in Sampson County Superior Court. Heard in the Court of Appeals 4 March
2015.
Attorney General Roy Cooper, by Assistant Attorney General Michael Bulleri, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Jillian C. Katz, for defendant-appellant.
INMAN, Judge.
Johnny Williams (“defendant”) appeals from judgment after a jury found him
guilty of manufacturing methamphetamine, keeping and maintaining a dwelling
house for keeping and using a controlled substance, trafficking in methamphetamine
by manufacture, and trafficking in methamphetamine by possession. On appeal,
defendant argues that the trial court erred by: (1) denying defendant’s motion to
suppress evidence obtained following an unlawful search of his home; (2) instructing STATE V. WILLIAMS
Opinion of the Court
the jury on the theory of aiding and abetting on the charge of manufacturing
methamphetamine; and (3) denying defendant’s motion to dismiss the charge of
maintaining a dwelling for keeping and using a controlled substance.
After careful review, we conclude that the trial court did not err.
Background
On 6 February 2013, Tessie Cashwell (“Tessie”) called 911 and requested
assistance from the Sampson County Sheriff’s Office (“Sheriff’s Office”) to help her
retrieve personal belongings from the home of defendant, Tessie’s ex-boyfriend at the
time.1 Deputy Jerry Cashwell (“Cashwell”)2 and Agent Brandon Pope (“Pope”) met
Tessie at defendant’s residence at 1881 Harnett Church Road in Roseboro. Defendant
allowed both officers to enter his home and wait while Tessie collected her personal
items.
Shortly thereafter, Captain Josuph Frischmann (“Captain Frischmann”) and
Lieutenant Rhonda Medlin (“Lieutenant Medlin”), also of the Sheriff’s Office, arrived
at defendant’s residence. Captain Frischmann met Cashwell on the front porch and
asked if defendant was inside. Cashwell said that he was, so Captain Frischmann
walked into the home. Once inside, Captain Frischmann saw defendant and
explained that he was there to investigate for the presence of drugs at the property.
1 Tessie and defendant married on 14 March 2014. 2 Tessie and Deputy Cashwell are not related.
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Defendant informed Captain Frischmann that there were no drugs in the house but
that he was “welcome to look.” After pausing briefly, defendant pointed to a door
down the hallway and said, “It’s in there. I want them out.” Captain Frischmann
walked toward the door, announced his presence, and then opened the door to find a
woman and man lying on top of a bed. After escorting the individuals into the living
room, Captain Frischmann asked defendant to step outside to talk. He then
presented defendant with a consent form to search the premises, which defendant
read and signed.
A search of the house revealed a number of controlled substances and related
paraphernalia, to wit: (1) one mason jar containing 310 grams of liquid
methamphetamine; (2) one plastic bag containing an unspecified amount of a powder
methamphetamine and pseudoephedrine mixture; (3) glass, plastic, and aluminum
foil smoking devices; (4) a marijuana cigarette; and (5) multiple plastic baggies and
rolling papers. Additionally, the search yielded several items consistent with the
manufacture of methamphetamine, including: (1) a Pyrex dish with
methamphetamine residue; (2) a razor blade coated with an off-white colored
substance; (3) blue shop paper towels containing white residue, which Captain
Frischmann testified were typically used as filters in the methamphetamine
manufacturing process; (4) a one-gallon can of acetone; (5) one can of Coleman fuel;
(6) a 50-pound bag of ammonium nitrate fertilizer; (7) a two-pound bottle of sodium
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hydroxide crystal drain opener; (8) camouflage netting; and (9) a lighting system. A
few hundred yards away from the house, officers found four plastic trash bags
containing a curled-up white tube, an empty container of drain cleaner, plastic bottles
containing white sludge and green liquid, and multiple pieces of burnt aluminum foil.
At trial, defendant moved to suppress all evidence gained from the search. He
argued that Captain Frischmann did not have consent to enter the house because his
purpose was to investigate narcotics, whereas Cashwell and Pope were there to help
Tessie collect her personal items. Thus, defendant argued that because the
subsequent search stemmed from Captain Frischmann’s unlawful entrance, all
evidence gained from the search should have been excluded. The trial court denied
defendant’s motion. In its written order, the trial court concluded that defendant’s
consent to the search of his home was voluntary, intelligent, and knowing, and that
the evidence obtained pursuant to the search had not been tainted.
At the close of the State’s evidence, the trial court granted defendant’s motion
to dismiss the charge of conspiracy. Over defendant’s objection, the trial court
instructed the jury that it could convict defendant of the crime of manufacturing
methamphetamine if it found that he aided or abetted any other individual in that
crime. The jury found defendant guilty of manufacturing methamphetamine,
maintaining a dwelling for the purpose of keeping and using a controlled substance,
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and trafficking in methamphetamine by manufacture and possession. Defendant
gave notice of appeal in open court.
Discussion
I. Motion to Suppress
Defendant first argues that the trial court erred by denying his motion to
suppress. He contends that Captain Frischmann’s initial entry into the home was
illegal under the Fourth Amendment, and therefore, all evidence obtained from the
subsequent search should have been excluded as fruit of the poisonous tree. Although
we agree that Captain Frischmann’s entry was unlawful, the evidence was not
sufficiently tainted to warrant application of the exclusionary rule.
As a threshold matter, the State contends that defendant has failed to preserve
this issue on appeal because: (1) the motion to suppress was improperly brought
under N.C. Gen. Stat. § 15A-975 (2013); (2) the motion was not timely; and (3) defense
counsel failed to support the objection to the admission of the challenged evidence on
the grounds stated in his brief. We disagree.
Defense counsel claimed that, in pretrial discovery, he was informed by the
State that Captain Frischmann arrived at defendant’s house contemporaneously with
officers Cashwell and Pope, with no indication that Captain Frischmann had a
separate purpose for being at the scene. Defense counsel entered his motion to
suppress immediately after Captain Frischmann testified on cross-examination that
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he walked into the home with an investigative purpose after officers Cashwell and
Pope were already at the scene. Under section 15A-975(a), a defendant may move to
suppress evidence during trial if “the defendant did not have reasonable opportunity
to make the motion before trial[.]” Here, defendant had no reasonable opportunity to
enter the suppression motion before trial, because he could not have known that
Captain Frischmann entered defendant’s home with a different purpose than officers
Cashwell and Pope until that information was elicited during testimony.
Furthermore, defense counsel moved to suppress any evidence found in the
subsequent search on the ground that such evidence was tainted by Captain
Frischmann’s allegedly unlawful entry. This is the same argument that defendant
now presents on appeal. Accordingly, we conclude that defendant’s motion was
timely brought and sufficiently stated the grounds upon which it was entered. See
generally State v. Roper, 328 N.C. 337, 361, 402 S.E.2d 600, 614 (1991). The State’s
argument that this issue has not been preserved for appellate review is overruled.
In our review of trial court orders addressing motions to suppress, “the trial
court’s findings of fact are conclusive on appeal if supported by competent evidence,
even if the evidence is conflicting. This Court must not disturb the trial court’s
conclusions if they are supported by the [trial] court’s factual findings. However, the
trial court’s conclusions of law are fully reviewable on appeal.” State v. Harwood, 221
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N.C. App. 451, 454-55, 727 S.E.2d 891, 895-96 (2012) (internal quotation marks
omitted).
Here, the trial court entered a written order denying defendant’s motion to
suppress, which contained the following factual findings:
1. The officers were at the location of the search, the defendant’s house, as a result of a legitimate call to the 911 center for assistance;
2. The defendant was not placed into custody at any time prior to or during the search of the premises;
3. The defendant was presented with a voluntary consent to search form by the officers, which was explained to him, and executed by the defendant prior to any search of the premises;
4. There were no threats, inducements or promises made to the defendant by any law enforcement officer;
5. The defendant voluntarily, intelligently, and knowingly waived his Fourth Amendment rights, and consented to a search of his premises.
Based on these findings, the trial court concluded that: (1) the consent form signed
by defendant was valid and was given voluntarily, intelligently, and knowingly; and
(2) none of the evidence obtained pursuant to the search was tainted.
Defendant challenges the trial court’s determination that he was presented
with the consent form prior to any search of the residence.3 Specifically, he contends
3The trial court included this determination in its findings of fact, presumably based on the evidence showing that a full investigative search of the premises did not occur until after defendant signed the
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that when Captain Frischmann walked through his front door with the subjective
intent to investigate drug activity, he was not granted the same consent previously
given to officers Cashwell and Pope, whom defendant allowed to enter his home for
the specific purpose of assisting Tessie gather her belongings. Therefore, defendant
argues that because Captain Frischmann entered his home without first obtaining a
warrant or receiving consent, in the absence of exigent circumstances, his entrance
constituted an unlawful search under the meaning of the Fourth Amendment. We
agree.
The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated[.]” U.S. Const. amend. IV. “[G]enerally speaking, an
intrusion into a residence is a search within the meaning of the Fourth Amendment,
for physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed.” State v. Barnes, 158 N.C. App. 606, 610, 582 S.E.2d 313,
317 (2003) (quotation marks omitted). Furthermore, “[i]t is a basic principle of Fourth
Amendment law that searches and seizures inside a home without a warrant are
consent form. However, defendant argues that Captain Frischmann’s entry, in and of itself, was a “search” under the meaning of the Fourth Amendment. Because this question requires the application of legal principles, we will consider the trial court’s finding to also be an implicit conclusion of law that Captain Frischmann’s entry did not constitute a search, which we will review de novo. See State v. Sparks, 362 N.C. 181, 185, 657 S.E.2d 655, 658 (2008) (“In distinguishing between findings of fact and conclusions of law, as a general rule, . . . any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law.” (internal quotation marks omitted)).
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presumptively unreasonable.” State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213
(1977) (internal quotation marks omitted); see also Payton v. New York, 445 U.S. 573,
590, 63 L. Ed. 2d 639, 653 (1980) (“[T]he Fourth Amendment has drawn a firm line
at the entrance to the house.”).
However, it is well established that an exception to this rule exists when the
search of a home is based upon lawful consent. See State v. Stone, 179 N.C. App. 297,
304, 634 S.E.2d 244, 249 (2006). Consent refers to “a statement to the officer, made
voluntarily . . . giving the officer permission to make a search.” N.C. Gen. Stat. §
15A-221(b) (2013). “[C]onsent . . . must be freely and intelligently given, without
coercion, duress or fraud, and the burden is upon the [S]tate to prove that it was so,
the presumption being against the waiver of fundamental constitutional rights.”
State v. Vestal, 278 N.C. 561, 578-79, 180 S.E.2d 755, 767 (1971). The suspect may
limit the scope or duration of a consent search. “The scope of a valid consent search
is measured against a standard of objective reasonableness where the court asks
‘what would the typical reasonable person have understood by the exchange between
the officer and the suspect?’ ” State v. Hagin, 203 N.C. App. 561, 564, 691 S.E.2d 429,
432 (2010) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302
(1991)).
Here, evidence presented at trial showed that officers Cashwell and Pope
arrived at defendant’s residence in response to a 911 call from Tessie requesting
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police assistance while she collected her personal belongings. Cashwell arrived first
at the scene, followed closely by Pope—both of whom testified that they reported to
defendant’s home in response to the request for domestic assistance. When he first
approached the front door, Cashwell explained to defendant that the officers were
there to assist Tessie, and defendant allowed them to enter his home while Tessie
gathered her personal items.
Shortly thereafter, Captain Frischmann walked in through the front door,
found defendant, and stated that his purpose for being inside defendant’s home was
to search for the presence of narcotics. It is undisputed that Captain Frischmann did
not knock at the door or ask permission to enter defendant’s home—he simply walked
in.
Under these circumstances, we believe that Captain Frischmann’s entry
constituted an unlawful search. He crossed the threshold of defendant’s home, which
our Courts have recognized as “the chief evil against which the wording of the Fourth
Amendment is directed.” Barnes, 158 N.C. App. at 610, 582 S.E.2d at 317 (quotation
marks omitted). And under the analysis set out in Jimeno, 500 U.S. at 251, 114 L.
Ed. 2d at 302, this search exceeded the scope of consent defendant gave to Cashwell
and Pope. The nature of the initial consent was for Cashwell and Pope to stand by
while Tessie collected her belongings. Defendant did not give the officers consent to
search—he merely allowed them to wait inside his home until Tessie was ready to
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leave. Therefore, when Captain Frischmann walked in through defendant’s front
door searching for the presence of narcotics, he was inherently exceeding the scope of
that consent. The nature of Captain Frischmann’s presence in the home was
investigative, not supportive. Based on this distinction, we conclude that no
reasonable person would have understood defendant’s approval of Cashwell and Pope
waiting for Tessie inside his living room to include consent for a third officer to show
up later, walk in unannounced, and search for drugs. Because “[t]he scope of the
search can be no broader than the scope of the consent,” State v. Jones, 96 N.C. App.
389, 397, 386 S.E.2d 217, 222 (1989), Captain Frischmann’s initial entry into
defendant’s home was unlawful under the Fourth Amendment.
Given the illegality of Captain Frischmann’s entry, we must determine
whether that Fourth Amendment violation tainted the subsequent consent search of
the home. It is true that “[e]vidence that is discovered as a direct result of an illegal
search or seizure is generally excluded at trial as fruit of the poisonous tree[.]” State
v. Jackson, 199 N.C. App. 236, 244, 681 S.E.2d 492, 497 (2009) (emphasis added).
However,
[w]e need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
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Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455 (1963). The
United States Supreme Court has articulated three nonexclusive factors that courts
should consider in determining whether the taint from an illegal search has
dissipated: (1) the time elapsed between the Fourth Amendment violation and the
procurement of consent or confession; (2) the presence of intervening circumstances;
and (3) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422
U.S. 590, 603-04, 45 L. Ed. 2d 416, 427 (1975). “[T]he Brown test does not require
that each of the factors set forth be resolved in favor of the Government,” U.S. v.
Seidman, 156 F.3d 542, 549 (4th Cir. 1998) (quotation marks omitted), but rather,
this analysis requires a “careful sifting of the unique facts and circumstances of each
case,” U.S. v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854 (1973)).
The United States Court of Appeals for the Fourth Circuit’s analysis in
Seidman is persuasive here. See State v. Wheeler, 202 N.C. App. 61, 67, 688 S.E.2d
51, 55 (2010) (noting that decisions from the Fourth Circuit are not binding on this
Court, but may be utilized as persuasive reasoning). In Seidman, the defendant was
accused of embezzling funds from a labor union for which he served as Comptroller.
Seidman, 156 F.3d at 544. The police arranged for Ronald Schoop (“Schoop”), one of
the defendant’s alleged co-conspirators, to speak with the defendant at his home
while wearing an electronic recording device. Id. at 545. Schoop knocked on the
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defendant’s door repeatedly, but no one answered, so he opened the unlocked door
and walked in. Id. The defendant was standing in a hallway near the door and led
Schoop to the kitchen where the two talked for the next forty-five minutes. Id. At
trial, the prosecution sought to admit incriminating statements made by the
defendant during this conversation, but the defendant moved to suppress those
statements as resulting from Shoop’s unlawful entry into the home. Id. at 547.
On appeal, the Fourth Circuit court assumed, but did not decide, that Schoop’s
entrance was unlawful under the Fourth Amendment. Id. at 549. However, in
conducting the analysis set out by the United States Supreme Court in Wong Sun
and its progeny, the court held that the taint created by the unlawful entry was
purged by independent acts of the defendant. Id. at 550. Although the time between
the unlawful entry and subsequent conversation was short, the court determined that
the second and third Brown factors weighed against suppression of the incriminating
statements. The court reasoned:
Almost immediately after Schoop entered the home, any taint arising from Schoop's entry was attenuated by Seidman's consent to the conversation. Shortly after Schoop opened the door to Seidman's house, Seidman shut the front door behind Schoop, and Seidman motioned him into the kitchen. These intervening acts indicated Seidman's willingness to engage in a conversation with Schoop. More importantly, shutting the door behind Schoop and motioning him into the kitchen were independent acts of free will by Seidman. . . . Seidman never asked Schoop to leave.
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The third [Brown] factor also weighs against suppression. . . . The degree of coercion resulting from the police officers' illegal acts in Wong Sun and Brown v. Illinois simply was not present here. . . . Schoop never made any threats to Seidman or exerted any force towards him. Seidman now claims on appeal that he did not ask Schoop to leave because Schoop intimidated him. . . . With the exception of Seidman's own testimony, there is simply no evidence to suggest that Schoop intimidated Seidman.
Id. at 549-50 (citations omitted).
In this case, like in Seidman, Captain Frischmann’s unlawful entry was “at
worst a minor and technical invasion” of defendant’s rights, Seidman, 156 F.3d at
549, and defendant’s own independent acts of free will sufficiently attenuated the
taint from the unlawful entry to justify the trial court’s denial of defendant’s motion
to suppress. As soon as Captain Frischmann walked into the home, he spoke with
defendant, apprised him of his purpose for being there, and asked to search the
residence for the presence of drugs. Defendant responded by saying that there were
no drugs in the house, but that the officers were “welcome to look.” Defendant then
paused, pointed to a bedroom down the hallway, and told Captain Frischmann, “It’s
in there. I want them out.” Defendant’s immediate oral consent to search and request
for Captain Frischmann to remove the individuals from a bedroom in his residence
indicated a willingness on defendant’s behalf to allow Captain Frischmann to carry
out his duties as an investigative officer. It is undisputed that defendant never asked
Captain Frischmann to leave the home or stop his search once it began. Defendant
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even helped Captain Frischmann find incriminating evidence by telling him that the
acetone was kept in the freezer. As in Seidman, the violation of defendant’s Fourth
Amendment rights in this case “pales in comparison” to cases where the taint of an
unlawful search or seizure was not sufficiently attenuated. See, e.g., Wong Sun, 371
U.S. at 486, 9 L. Ed. 2d at 454 (holding that where multiple officers broke open the
door of the defendant’s home and almost immediately handcuffed and arrested him,
the defendant’s incriminating statements were not the result of free will under the
circumstances sufficient to purge the taint of the unlawful entrance); Brown, 422
U.S. at 592, 604-05, 45 L. Ed. 2d at 421, 428 (holding that the defendant’s
incriminating statements were not the result of free will where they were made after
officers broke into his home to conduct an illegal search and arrested the defendant
while pointing their weapons at him). Defendant here consented to the search of his
home twice—once orally after Captain Frischmann’s initial entry and again in
writing after being presented with and reading a consent form shortly after Captain
Frischmann removed the individuals from the back bedroom (at defendant’s request).
There is no evidence that defendant was arrested, intimidated, or coerced in any way
prior to giving either form of consent.
Accordingly, based on the factors enunciated by the United States Supreme
Court in Wong Sun and Brown, we conclude that the search of defendant’s residence
and the evidence gained therefrom did not result from the exploitation of Captain
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Frischmann’s unlawful entry into the home. Any taint arising from the initial entry
was purged by defendant’s independent acts of free will and his voluntary, knowing,
and intelligent consents to search—both oral and written. Therefore, we conclude
that the trial court’s denial of defendant’s motion to suppress was free from error.
II. Aiding and Abetting Instruction
Defendant next argues that the trial court erred by instructing the jury on
aiding and abetting as a theory of criminal liability for the charge of manufacturing
methamphetamine. We disagree.
“Properly preserved challenges to the trial court’s decisions regarding jury
instructions are reviewed de novo, by this Court. But jury instructions are not
reviewed in isolation.” State v. King, __ N.C. App. __, __, 742 S.E.2d 315, 319 (2013)
(internal quotation marks and citation omitted).
This Court reviews jury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by [the] instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.
State v. Blizzard, 169 N.C. App. 285, 296–97, 610 S.E.2d 245, 253 (2005) (citation,
quotation marks, and ellipses omitted). “It is generally error, prejudicial to
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defendant, for the trial court to instruct the jury upon a theory of a defendant’s guilt
which is not supported by the evidence.” State v. Brown, 80 N.C. App. 307, 311, 342
S.E.2d 42, 44 (1986).
Aiding and abetting is a theory of criminal liability, not a substantive offense.
See State v. Fuller, 179 N.C. App. 61, 67, 632 S.E.2d 509, 513 (2006). A jury
instruction on aiding and abetting is proper where there is evidence: “(1) that the
crime was committed by another; (2) that the defendant knowingly advised,
instigated, encouraged, procured, or aided the other person; and (3) that the
defendant’s actions or statements caused or contributed to the commission of the
crime by the other person.” State v. Baskin, 190 N.C. App. 102, 111, 660 S.E.2d 566,
573 (2008) (quotation marks omitted).
We conclude that the State presented sufficient evidence of all three elements
here to support the trial court’s instruction on aiding and abetting for the charge of
manufacturing methamphetamine. Defendant told officers at the scene that an
acquaintance of his named Norman Ray Faircloth (“Faircloth”) was running a
methamphetamine lab at a house on Hollandtown Road. Captain Frischmann
testified that defendant was “nervous” during the search of his residence, and every
time Captain Frischmann got near a piece of evidence, defendant “would come
running in and tell [him] that [Faircloth] was cooking methamphetamine.” When
asked about the methamphetamine manufacturing activities at Hollandtown Road,
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defendant told Captain Frischmann that “[t]hey took over my house.” Defendant also
told the officers that he allowed Faircloth’s wife, Monica Dawson (“Dawson”), and her
twelve-year-old daughter to sleep in his house for the previous week because he
feared that they were unsafe at Faircloth’s residence.
Defendant testified that he had witnessed Faircloth cook methamphetamine
in the past, and that he allowed Faircloth to come “in and out” of defendant’s
residence in the week leading up to the search of his home. Defendant claimed that
his relationship with Faircloth was one built on deception, and that his intention
behind allowing Faircloth to spend time in his residence was to gather information
before informing the police about Faircloth’s drug activity. However, Captain
Frischmann testified that police had been investigating Faircloth for over a year
before the search of defendant’s residence, and defendant provided “very limited
information” as to Faircloth’s methamphetamine production. The only information
defendant gave Captain Frischmann before the search was that Faircloth was
cooking methamphetamine, which was “common knowledge” according to Captain
Frischmann. Furthermore, defendant testified that Dawson, his houseguest, actively
assisted Faircloth in the manufacture of methamphetamine by washing out cookware
and plastic dishes and pouring liquid methamphetamine into a filter during the
manufacturing process. A Pyrex dish with methamphetamine residue, 310 grams of
liquid methamphetamine, and blue shop paper towels containing white residue,
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sometimes used as filters in this endeavor, were all found in defendant’s residence.
Defendant also stated that he had been allowing Faircloth and Dawson to use his
vehicle during the week leading up the search, and that defendant had helped
Faircloth unload a blue container with a bag of fertilizer from the trunk of his car.
When asked by Captain Frischmann what materials were inside the blue container,
defendant replied “meth lab items.”
In sum, the State presented substantial evidence that Faircloth and Dawson
were engaged in the manufacture of methamphetamine, and that, at the very least,
defendant allowed them to use his home and his vehicle to carry that crime to fruition.
Therefore, each of the elements needed to support a jury instruction on aiding and
abetting for the crime of manufacturing methamphetamine were satisfied. See
Baskin, 190 N.C. App. at 111-12, 660 S.E.2d at 573. Defendant’s argument is
overruled.
III. Maintaining a Dwelling
Defendant’s final argument on appeal is that the trial court erred by denying
his motion to dismiss the charge of maintaining a dwelling for the purpose of keeping
and using a controlled substance. We disagree.
In ruling on a motion to dismiss based on insufficiency of evidence, the trial
court must determine whether there is substantial evidence of each element of the
offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).
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“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d
164, 169 (1980). When reviewing the evidence, the trial court must consider even
incompetent evidence in the light most favorable to the prosecution, granting the
State the benefit of every reasonable inference. State v. Brown, 310 N.C. 563, 566,
313 S.E.2d 585, 587 (1984). Any contradictions or discrepancies in the evidence
should be resolved by the jury. Id.
Under N.C. Gen. Stat. § 90-108(a)(7) (2013) it is unlawful for any person to
“knowingly keep or maintain any . . . dwelling house, building, . . . or any place
whatever, which is resorted to by persons using controlled substances . . . or for the
purpose of using such substances, or which is used for the keeping or selling of the
same[.]” Payment of rent is sufficient to satisfy the requirement that the defendant
“keep or maintain” the building or house in question. See State v. Bowens, 140 N.C.
App. 217, 221-22, 535 S.E.2d 870, 873 (2000). “The determination of whether a
vehicle, or a building, is used for keeping or selling controlled substances will depend
on the totality of the circumstances.” State v. Mitchell, 336 N.C. 22, 34, 442 S.E.2d
24, 30 (1994). This Court has previously held that
[t]he evidence showing that defendant resided in the house, that she was cooking dinner, and that she possessed cocaine and materials related to the use and sale of cocaine, is sufficient to allow conviction under G.S. 90-108(a)(7) for maintaining a dwelling used for the keeping or selling of controlled substances.
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State v. Rich, 87 N.C. App. 380, 384, 361 S.E.2d 321, 324 (1987).
Here, it is undisputed that: (1) defendant paid rent to reside at the property in
question; and (2) the following were found in defendant’s residence: 310 grams of
liquid methamphetamine; one plastic bag containing an unspecified amount of
methamphetamine; glass, plastic, and tinfoil smoking devices; a marijuana cigarette;
and rolling papers. Considered in the light most favorable to the State, this evidence
was sufficient to show that defendant possessed controlled substances and related
materials in the home for which he was a rent-paying tenant. Therefore, the State
presented substantial evidence satisfying all elements of section 90-108(a)(7), and the
trial court did not err by denying defendant’s motion to dismiss this charge. See, e.g.,
State v. Cowan, 194 N.C. App. 330, 337, 669 S.E.2d 811, 817 (2008).
Conclusion
Because defendant’s independent acts of free will purged his consent to search
from the taint of Captain Frischmann’s unlawful entry into his home, the trial court
did not err by denying defendant’s motion to suppress. Additionally, the trial court’s
instruction on aiding and abetting and denial of defendant’s motion to dismiss the
charge of maintaining a dwelling were free from error.
NO ERROR.
Judges ELMORE and GEER concur.
- 21 - STATE V. WILLIAMS
Report per Rule 30(e).
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