State v. Holloway, No. COA16-381

• Docket Nº: No. COA16-381
• Citation: 250 N.C.App. 674, 793 S.E.2d 766
• Case Date: December 06, 2016
• Court: Court of Appeal of North Carolina (US)

250 N.C.App. 674
793 S.E.2d 766

STATE of North Carolina
v.
Andrew Robert HOLLOWAY

No. COA16-381

Court of Appeals of North Carolina.

Filed: December 6, 2016

Attorney General Roy Cooper, by Special Deputy Attorney General Scott Stroud, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for defendant-appellant.

793 S.E.2d 769

BRYANT, Judge.

250 N.C.App. 675

Where the trial court erred in denying defendant's motions to dismiss all charges due to the State's failure to present substantial evidence, and where the trial court erred in instructing the jury on acting in concert, a theory not supported by the evidence, we vacate the judgments of the trial court.

On 22 October 2013, Tommy Turner, a police officer with the Forest City Police Department was on duty and heard a report of a breaking and entering at 305 Hardin Road. Officer Turner drove to the address, joining Officer James Greene who was already on the scene. Officer Greene heard a commotion coming from inside the residence and announced the police were there and anyone inside was to come out. After about twenty minutes, Officer Turner, who was stationed at the back of the house, noticed smoke coming from the back of the house. The fire department was called, and around the same time, two men left the house through the front door. Because the officers were responding to a breaking and entering in progress, the two men, identified as Robert McEntire and defendant Andrew Robert Holloway, were placed in custody.

250 N.C.App. 676

Firemen who responded to the call discovered the source of the smoke in the kitchen to be a quantity of marijuana burning in the oven. The firemen doused the oven's contents with water and handed the marijuana to police officers waiting outside.

Forest City police officers obtained a search warrant for the residence, and in the kitchen, officers found $4,000.00 in cash, McEntire's driver's license, and other items with McEntire's name on them, including a vehicle title. In a bedroom, officers found a gun, gun magazine, digital scales, and a small bag of marijuana. The total amount of marijuana recovered from the residence weighed 19.86 pounds. Officers later learned that McEntire lived at the two-bedroom house on 305 Hardin Road, although the original lessee was one Danielle Taylor. Other than a photograph of defendant found in a container in a bedroom, there were no items found in the residence bearing defendant's name or otherwise connected to defendant.

On 15 September 2014, defendant was indicted on multiple charges, including trafficking in marijuana, possession with intent to sell and deliver marijuana, maintaining a dwelling house for keeping and selling marijuana, and possession of drug paraphernalia. On 17 November 2014, defendant was indicted as an habitual felon.¹

On 14 September 2015, defendant's case was called for trial before the Honorable Jeffrey P. Hunt, Superior Court Judge presiding. Defendant was also tried on a charge of possession of a firearm by a felon.

At trial at the close of the State's evidence, defendant moved to dismiss all of the charges based on insufficient evidence, arguing that the State's only evidence tying defendant to the residence or the items discovered therein was his presence on the afternoon of 22 October 2013 and the single photograph of him found face down in a plastic storage container in a bedroom. The State countered that once the marijuana was burning and smoke was filling the house, "someone inside the residence is going to know about it. Certainly is going to have the ability to control its disposition and use at that point." According to the State, because there was no evidence of what defendant was doing inside the

250 N.C.App. 677

residence while the officers were knocking at the door, the jury was entitled to infer that defendant constructively possessed the drugs, drug paraphernalia, and the firearm, and that he, in concert with McEntire, kept the dwelling to distribute marijuana. The State also argued that "the photograph is evidence that [defendant] stays there[,]" and thus it was reasonable to infer that defendant

793 S.E.2d 770

was at the house "all the time." The trial court denied defendant's motion.

Defendant's evidence included the testimony of his mother, Serene Holloway, and McEntire. McEntire had pled guilty to and was serving a sentence for trafficking, possession with intent to sell and deliver, possession of drug paraphernalia, and maintaining a dwelling in connection with the 22 October 2013 incident at his residence. Defendant's mother and McEntire explained how McEntire came to have the photograph of defendant. McEntire further testified that defendant was merely visiting on the day his home was searched and that defendant had arrived shortly before the police. McEntire also testified that the marijuana, paraphernalia, and firearm were all his and that defendant did not know about their presence in the home.

At the close of all the evidence, defendant again moved to dismiss all the charges based on insufficient evidence. The court denied the motion.

Without objection, the trial court instructed the jury on the theory of acting in concert generally as to all of the charges, in addition to instructing on actual and constructive possession. The jury convicted defendant of all possession-related charges except the firearm charge, of which he was acquitted. The jury also convicted defendant of knowingly maintaining a dwelling house, the lesser-included offense of intentionally keeping or maintaining a dwelling house. In a subsequent proceeding, the jury found defendant had attained the status of habitual felon. Defendant was sentenced to 120 days for maintaining a dwelling, 97 to 129 months for trafficking in marijuana, 38 to 58 months for possession with intent to sell and distribute marijuana, and 120 days for possession of drug paraphernalia, with all sentences running consecutively. Defendant gave notice of appeal in open court.

_________________________

On appeal, defendant contends the trial court erred in denying defendant's motion to dismiss for insufficient evidence and, therefore, plainly erred by instructing the jury that it could convict defendant of acting in concert where there was no evidence of a common criminal plan. We agree.

250 N.C.App. 678

Defendant first argues the trial court erred in denying his motion to dismiss where there was insufficient evidence of possession to prove any of the possessory offenses charged. Specifically, defendant contends the State erroneously relied on the theory of constructive possession and acting in concert and presented insufficient evidence that defendant maintained a dwelling for the purpose of keeping or selling a controlled substance.

"This Court reviews the trial court's denial of a motion to dismiss de novo ." State v. Smith , 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ).

The court must also "view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences that can be drawn from the evidence." Id. at 378–79, 526 S.E.2d at 455 (quoting Barnes , 334 N.C. at 75, 430 S.E.2d at 918 ). Evidence presented by the State need only provide a reasonable inference of guilt in order for the motion to be denied and the case submitted to the jury. State v. Shelman , 159 N.C.App. 300, 305, 584 S.E.2d 88, 92 (2003) (citation omitted). Contradictions and discrepancies in the evidence must be resolved in the State's favor, and defendant's evidence, unless favorable to the State, is not considered. Id. at 305, 584 S.E.2d at 92–93 (citations omitted). However, "[w]hen the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted." State v. Miller , 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citing State v. Lee , 348 N.C. 474, 488–89, 501 S.E.2d 334, 343 (1998) ).

793 S.E.2d 771

A. Constructive Possession

Defendant first argues the State failed to present substantial evidence demonstrating defendant's constructive possession of marijuana and drug paraphernalia. We agree.

For possession with intent to sell or deliver marijuana, the State was required to present substantial evidence of three elements: (1) possession, (2) of a controlled substance, (3) with the intent to sell or deliver that controlled substance. N.C. Gen. Stat. § 90-95(a)(1)–(2) (2015).

250 N.C.App. 679

(1) Any person who

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