State v. Link

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1171
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Person County
Nos. 12 CRS 1727-29
KENDRICK MARYLAND LINK
Appeal by Defendant from judgments entered 30 May 2013 by
Judge Michael R. Morgan in Superior Court, Person County. Heard
in the Court of Appeals 29 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Lora C. Cubbage, for the State.
Gerding Blass, PLLC, by Danielle Blass, for Defendant-
Appellant.
McGEE, Judge.
A jury found Kendrick Maryland Link (“Defendant”) guilty of
sale and delivery of cocaine, possession with intent to sell and
deliver cocaine, intentionally maintaining a vehicle for the
purpose of keeping or selling a controlled substance, and
possession of drug paraphernalia. Defendant then pled guilty to
having attained habitual felon status. The trial court
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consolidated Defendant’s felony convictions for judgment and
sentenced him as an habitual felon to an active prison term of
58 to 82 months. Defendant received an additional 120-day
prison term for misdemeanor possession of drug paraphernalia,
consecutive to his sentence for the felony convictions.
Defendant appeals.
Members of the Person County Sheriff’s Office employed an
informant, Jason Wade (“Wade”), on 20 March 2012 to make a
controlled purchase of cocaine from Defendant at Wade’s
residence. The officers equipped Wade with an audiovisual
recording device and $50.00 in purchase money. Wade telephoned
Defendant at 12:08 p.m. and asked him to deliver to him $50.00
worth of cocaine. Wade telephoned Defendant a second time at
12:34 p.m. to ascertain his whereabouts, but Defendant did not
answer. Wade told an investigator that “if [Defendant] didn’t
answer, he was probably on the way.” Defendant pulled into
Wade’s driveway in a 1992 Oldsmobile Cutlass Supreme at 12:37
p.m. Wade approached the driver’s side window of the vehicle
and “hand[ed] cash inside the car to [Defendant.]” After
Defendant “gave [Wade] the drugs[,]” Defendant “put the money in
his pocket and left.” Wade re-entered his home and surrendered
to officers “a corner clear baggy of white powdery substance”
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obtained from Defendant – later determined to be three-tenths of
a gram of cocaine hydrochloride. The recording taken by Wade of
the transaction was admitted into evidence and published to the
jury. Defendant stipulated that he was the owner of the 1992
Oldsmobile he drove to Wade’s house on 20 March 2012.
Defendant argues on appeal that, due to insufficient
evidence, the trial court erred in denying his motion to dismiss
the charge of maintaining a vehicle for keeping or selling a
controlled substance. We agree.
“Upon review of a motion to dismiss, the court determines
whether there is substantial evidence, viewed in the light most
favorable to the State, of each essential element of the offense
charged and of the defendant being the perpetrator of the
offense.” State v. Lane, 163 N.C. App. 495, 499, 594 S.E.2d
107, 110 (2004). Our Courts have defined “substantial evidence”
as “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting State v.
Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990)). If
the evidence “is sufficient only to raise a suspicion or
conjecture as to either the commission of the offense or the
identity of the defendant as the perpetrator of it, the motion
for nonsuit should be allowed. This is true even though the
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suspicion so aroused by the evidence is strong.” In re Vinson,
298 N.C. 640, 656-57, 260 S.E.2d 591, 602 (1979) (citations
omitted).
To obtain a conviction for knowingly and
intentionally maintaining a place used for
keeping and/or selling controlled substances
under N.C. Gen. Stat. § 90-108(a)(7) [2013],
the State has the burden of proving the
defendant: (1) knowingly or intentionally
kept or maintained; (2) a building or other
place; (3) being used for the keeping or
selling of a controlled substance.
State v. Frazier, 142 N.C. App. 361, 365, 542 S.E.2d 682, 686
(2001). While conceding that he owned the Oldsmobile, Defendant
argues the State failed to show that he kept or maintained the
vehicle “for keeping or selling controlled substances” as
required by element (3). Defendant cites to prior decisions of
this Court holding that “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.” Lane, 163 N.C. App. at 499-500,
594 S.E.2d at 110 (citing State v. Dickerson, 152 N.C. App. 714,
716-17, 568 S.E.2d 281, 282 (2002)).
“The determination of whether a building or other place is
used for keeping or selling a controlled substance ‘will depend
on the totality of the circumstances.’” Frazier, 142 N.C. App.
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at 366, 542 S.E.2d at 686 (quoting State v. Mitchell, 336 N.C.
22, 34, 442 S.E.2d 24, 30 (1994)). Evidence of a vehicle’s use
in multiple transactions over a period of time will support a
conviction under N.C. Gen. Stat. § 90-108(a)(7). See State v.
Calvino, 179 N.C. App. 219, 222-23, 632 S.E.2d 839, 842-43
(2006) (where police observed and recorded two cocaine purchases
by defendant in the same van, seven days apart). Other
“[f]actors to be considered in determining whether a particular
place is used to ‘keep or sell’ controlled substances include: a
large amount of cash being found in the place; a defendant
admitting to selling controlled substances; and the place
containing numerous amounts of drug paraphernalia.” Frazier,
142 N.C. App. at 366, 542 S.E.2d at 686.
In Dickerson, an informant arranged to purchase eighty
dollars’ worth of cocaine from the defendant. Dickerson, 152
N.C. App. at 715, 568 S.E.2d at 281. An unidentified party
drove the defendant to the site of the transaction in a car
registered to the defendant. Id. The defendant completed the
sale from the front passenger’s seat of the car. Id. This
Court found this evidence insufficient to support the
defendant’s conviction under N.C. Gen. Stat. § 90-108(a)(7):
[T]he fact that a defendant was in his
vehicle on one occasion when he sold a
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controlled substance does not by itself
demonstrate the vehicle was kept or
maintained to sell a controlled substance.
In this case, the State presented no
evidence in addition to Defendant having
been seated in a vehicle when the cocaine
purchase occurred. As such, the trial court
erred by failing to dismiss the charge of
keeping and/or maintaining a motor vehicle
for the sale and/or delivery of cocaine.
Id. at 716-17, 568 S.E.2d at 282; see also Lane, 163 N.C. App.
at 499-500, 594 S.E.2d at 110-11.
In the case before us, as in Dickerson, the State adduced
evidence that Defendant owned the vehicle in question and used
it on a single occasion to sell 0.3 grams of cocaine. There was
no evidence of additional drugs, cash, or paraphernalia in the
vehicle and no admission by Defendant that might support a
reasonable inference of its continued use in the drug trade.
See Frazier, 142 N.C. App. at 366, 542 S.E.2d at 686. We note
that the audio-video recording of the transaction published to
the jury contains several instances in which Wade, while
speaking with the officers, alludes to Defendant’s prior
deliveries of drugs to Wade’s residence. These hearsay
statements, which make no reference to the 1992 Oldsmobile
driven by Defendant on 20 March 2012, are “sufficient only to
raise a suspicion or conjecture as to” Defendant’s ongoing use
of this particular vehicle to keep or sell a controlled
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substance. Vinson, 298 N.C. at 656-57, 260 S.E.2d at 602.
Accordingly, we hold the trial court erred in failing to dismiss
this charge. See Lane, 163 N.C. App. at 499-500, 594 S.E.2d at
110-11; Dickerson, 152 N.C. App. at 716-17, 568 S.E.2d at 282.
Defendant’s conviction for maintaining a vehicle for the
purpose of keeping or selling a controlled substance is hereby
reversed. Because the trial court consolidated Defendant’s
felony convictions into a single judgment, we remand for
resentencing. State v. Wortham, 318 N.C. 669, 674, 351 S.E.2d
294, 297 (1987).
Reversed and remanded.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).