State v. Weldy

• Court: North Carolina Court of Appeals
• Writing for the Court: COLLINS, Judge.
• Citation: State v. Weldy, 844 S.E.2d 357, 271 N.C.App. 788 (N.C. App. 2020)
• Decision Date: 02 June 2020
• Docket Number: No. COA19-761,COA19-761
• Parties: STATE of North Carolina v. Jason Edward WELDY

271 N.C.App. 788

844 S.E.2d 357

STATE of North Carolina

v.Jason Edward WELDY

No. COA19-761

Court of Appeals of North Carolina.

Filed: June 2, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Creecy C. Johnson, for the State-Appellee.

Sarah Holladay, for Defendant-Appellant.

COLLINS, Judge.

Defendant appeals from judgments entered upon jury verdicts of guilty of, among other crimes, keeping or maintaining a vehicle for the keeping or sale of controlled substances ("keeping a vehicle"). Defendant argues that the trial court erred by denying his motion to dismiss for insufficient evidence the charge of keeping a vehicle. As there was insufficient evidence that Defendant kept or maintained a vehicle or that he did so for the keeping or selling of controlled substances, the trial court erred in denying Defendant's motion to dismiss that charge. We, therefore, reverse the denial of Defendant's motion to dismiss, vacate Defendant's conviction for keeping a vehicle, and remand for resentencing.

I. Background

On 16 July 2018, a grand jury indicted Defendant Jason Edward Weldy on charges of trafficking in methamphetamine by transportation, trafficking in methamphetamine by possession, possession with the intent to sell or distribute methamphetamine, trafficking in heroin by transportation, trafficking in heroin by possession, possession with the intent to sell or distribute heroin, and keeping or maintaining a vehicle for the keeping or sale of controlled substances. The State subsequently dismissed the charge of trafficking in methamphetamine by possession because a typographical error rendered the indictment fatally flawed.

On 11 February 2019, Defendant's case came on for jury trial. The evidence at trial tended to show the following: In November 2017, narcotics investigators with the Forsyth County Sheriff's Office received information from the Stokes County Narcotics Office that Defendant was selling illegal drugs in Forsyth County. On 30 November 2017, Forsyth County narcotics investigators surveilled Defendant as he drove a Nissan Maxima around town. The investigators followed Defendant in unmarked law enforcement vehicles and observed Defendant driving the car alone. Investigator A.R. Joyner testified that Defendant "would take random turns.... I observed him just turning back onto the road he was on and going back in the direction he came, which is a countersurveillance technique that I know ... those involved in illegal activities do."

After following Defendant for about 20-25 minutes, Joyner saw Defendant park at the Quality Inn. Defendant went inside, stayed a few minutes, and came back out. As Defendant drove away from the hotel, officers pulled Defendant over for driving without a license. Joyner frisked Defendant to check for weapons, finding none. Joyner saw a bulge between Defendant's belt and his hip bone. When Joyner touched the bulge, she believed it to be methamphetamine. Another officer retrieved the bulge and Joyner saw it was a clear, plastic bag containing a "white, clear-ish, hard crystal-like" substance. The substance was later determined to be 56.38 grams of methamphetamine, an amount Joyner testified was not consistent with personal use. An officer retrieved another plastic bag containing an off-white, powdery substance from Defendant's pocket. The substance was later determined to be 6.84 grams of heroin, an amount Joyner testified was not a typical "user amount" but was instead consistent with "be[ing] for sale." Joyner testified that Defendant's wife and mother-in-law were the registered owners of the car.

On 12 February 2019, the jury found Defendant guilty of all charges. The trial court sentenced Defendant to a total of 210-279 months’ imprisonment and assessed $150,000 in fines. Following entry of judgment, Defendant gave oral notice of appeal in open court.

II. Discussion

Defendant argues that the trial court erred by denying his motion to dismiss the charge of keeping a vehicle because the State presented insufficient evidence that Defendant kept or maintained a vehicle or that he did so for the purpose of keeping or selling illegal drugs.

In ruling on a motion to dismiss, "the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator. Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Winkler , 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015) (internal quotation marks and citation omitted). The evidence must be viewed "in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted). "[W]hen the evidence only raises a suspicion of guilt, a motion to dismiss must be granted." State v. Foye , 220 N.C. App. 37, 41, 725 S.E.2d 73, 77 (2012) (citation omitted). However, "[i]f there is more than a scintilla of competent evidence to support allegations in the warrant or indictment, it is the court's duty to submit the case to the jury." State v. Everhardt , 96 N.C. App. 1, 11, 384 S.E.2d 562, 568 (1989) (internal quotation marks and citation omitted), aff'd , 326 N.C. 777, 392 S.E.2d 391 (1990). This Court reviews a 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).

Defendant was convicted of keeping or maintaining a vehicle which is used for the keeping or selling of a controlled substance, in violation of N.C. Gen. Stat. § 90-108(a)(7). That provision states, in pertinent part, that "[i]t shall be unlawful for any person ... [t]o knowingly keep or maintain any ... vehicle ... which is used for the keeping or selling of [controlled substances] in violation of this Article." N.C. Gen. Stat. § 90-108(a)(7) (2019).

A. Keep or maintain a vehicle

"[T]he word ‘keep,’ in the ‘keep or maintain’ language of subsection 90-108(a)(7), refers to possessing something for at least a short period of time—or intending to retain possession of something in the future—for a certain use." State v. Rogers , 371 N.C. 397, 402, 817 S.E.2d 150, 154 (2018).¹ The word "maintain" as it is used to refer to a person who "keep[s] or maintain[s]" a vehicle or dwelling within the meaning of subsection 90-108(a)(7) means "to bear the expense of; carry on ... hold or keep in an existing state or condition." State v. Moore , 188 N.C. App. 416, 423, 656 S.E.2d 287, 292 (2008) (omission in original) (internal quotation marks and citation omitted).

Although our courts have defined the words "keep" and "maintain" separately, they do not describe separate offenses, but are similar terms, often used interchangeably, to establish a singular element of the offense. Whether a vehicle is "kept or maintained" for the keeping or selling of controlled substances depends on the totality of the circumstances. State v. Hudson , 206 N.C. App. 482, 492, 696 S.E.2d 577, 584 (2010) (citing State v. Bowens , 140 N.C. App. 217, 221, 535 S.E.2d 870, 873 (2000) ). Circumstances courts have considered in determining whether a defendant "kept or maintained" a vehicle within the meaning of N.C. Gen. Stat. § 90-108(a)(7) include defendant's use of the vehicle, title to or ownership of the vehicle, property interest in the vehicle, payment toward the purchase of the vehicle, and payment for repairs to or maintenance of the vehicle. See Rogers , 371 N.C. at 402, 817 S.E.2d at 154 (sufficient evidence that defendant kept a vehicle where officers observed defendant driving the vehicle for approximately 90 minutes, defendant was the only person driving the car, and a "service receipt [was] found inside the Cadillac bearing defendant's name—a receipt that bore a date from about two and a half months before defendant's arrest"); State v. Alvarez , 260 N.C. App. 571, 575, 818 S.E.2d 178, 182 (2018), aff'd per curiam, 372 N.C. 303, 828 S.E.2d 154 (2019) (sufficient evidence that "defendant knowingly kept or maintained the truck for the purpose of keeping or selling cocaine [where a]lthough the vehicle was registered in his wife's name, defendant described it as ‘[his] truck[;]’ [d]efendant admitted that it was his work vehicle, that no other party used it, and that he built the wooden drawers and compartments located in the back of the cab"); Hudson , 206 N.C. App. at 492, 696 S.E.2d at 584 (sufficient evidence that defendant kept or maintained a vehicle where the "bill of lading for the Mercedes ... shows that Defendant picked up the vehicle ... [and] maintained possession as the authorized bailee of the vehicle continuously and without variation for two days[,] ... [h]aving stopped to rest overnight on at least one occasion during that time period"). Although occupancy of the vehicle is a relevant circumstance, occupancy alone will not support the element of keeping or maintaining. See State v. Spencer , 192 N.C. App. 143, 148, 664 S.E.2d 601, 605 (2008) ("[O]ccupancy, without more, will not support the element of ‘maintaining’ a dwelling.").

In this case, the evidence before the trial court that Defendant "kept or maintained" the car is as follows: Officers observed Defendant drive the car for about 20-25 minutes.

He then stopped at a hotel, went inside for a few minutes, came back out, and had started to drive away when he was pulled over. Defendant's wife and mother-in-law were the registered owners of the car.

The State presented no evidence that Defendant had title to or owned the vehicle, had a property interest in the vehicle, paid toward the purchase of the vehicle, or paid for repairs to or maintenance of the vehicle. Thus, the State presented no evidence that Defendant "maintained" the car. See Moore , 188 N.C. App. at 423, 656 S.E.2d at 292 ; Hudson , 206 N.C. App. at 492, 696 S.E.2d at 584.

The question then becomes whether Defendant's use of the car was sufficient evidence that he "k...