An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                            -2-
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”
                                           -3-
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
                                     -4-
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.
                                          -5-
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
                                                -6-
              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
                                        -7-
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).
