State v. Weldy, ___ N.C. App. ___, ___ S.E.2d ___ (Jun. 2, 2020)

In this keeping or maintaining a vehicle for the keeping or sale of controlled substances case, there was insufficient evidence that the defendant kept or maintained a vehicle or did so for the keeping or selling of controlled substances.  Officers had received information from another agency indicating that the defendant was selling drugs.  During a traffic stop and weapons frisk following 20-25 minutes of surveillance of the defendant driving, approximately 56 grams of methamphetamine and 7 grams of heroin were discovered on the defendant’s person, and an officer later testified that neither amount was consistent with personal use.  The defendant was driving a vehicle registered to his wife and mother-in-law. 

Noting that North Carolina courts have defined the words “keep” and “maintain” separately, the court explained that they are similar terms, “often used interchangeably, to establish a singular element of the offense” and that whether a vehicle is “kept or maintained” for the keeping or selling of controlled substances depends on the totality of the circumstances.  Finding that the State presented no evidence that the defendant “maintained” the vehicle because there was no evidence that the defendant had title to or owned the vehicle, had a property interest in it, or paid for its purchase or upkeep, the court turned to whether there was sufficient evidence that the defendant “kept” the car within the meaning of G.S. 90-108(a)(7).  Reviewing relevant caselaw, which establishes that the “keep or maintain” language of the statute “refers to possessing something at least for a short period of time—or intending to retain possession of something in the future—for a certain use,” the court determined that evidence of the defendant’s possession of the vehicle for approximately 20-25 minutes, standing alone, was insufficient to prove that the defendant “kept” the vehicle.  

The court then turned to whether, assuming there had been sufficient evidence of the defendant’s keeping or maintaining the vehicle, the State presented sufficient evidence that the defendant’s purpose in doing so was the “keeping or selling” of controlled substances.  Again reviewing relevant caselaw, the court determined that the discovery on the defendant’s person of single bags containing approximately 56 grams of methamphetamine and 7 grams of heroin was insufficient to prove the purpose of keeping or maintaining the vehicle was the keeping or selling of controlled substances.  The court noted that the State presented no evidence that cell phones, cash, scales, baggies or other paraphernalia had been discovered in the vehicle.  There also was no evidence that the vehicle had been modified to conceal drugs or that drugs had been discovered in the vehicle itself, hidden or otherwise.

Judge Berger dissented and expressed his view that there was sufficient evidence of the offense and that the majority erroneously conflated “keeping” and “maintaining” in its analysis of whether the defendant kept or maintained the vehicle.  In Judge Berger’s view there was sufficient evidence that the defendant “kept” the vehicle based on his possession of the vehicle while engaging in drug activity.  He also would have found sufficient evidence that the defendant’s purpose in doing so was the keeping or selling of controlled substances based on the defendant’s use of the vehicle to transport drugs, the discovery of a purported drug ledger in the vehicle, and other evidence that the defendant was involved in the sale of drugs.

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