State v. Garmon

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 23-544

Filed 3 December 2024

Union County, Nos. 20 CRS 28, 20 CRS 54202-03

STATE OF NORTH CAROLINA

v.

CHARLES LEON GARMON, Defendant.

Appeal by Defendant from judgments entered 4 August 2022 by Judge Keith

O. Gregory in Union County Superior Court. Heard in the Court of Appeals 5 March

2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Zachary

K. Dunn, for the State.

Jarvis John Edgerton, IV, for defendant-appellant.

STADING, Judge.

Charles L. Garmon (“Defendant”) appeals from judgments entered 4 August

2022 after a jury found him guilty of trafficking in opioids by possession, trafficking

in opioids by transportation, possession of drug paraphernalia, and maintaining a

vehicle for keeping or selling controlled substances—for which Defendant was

sentenced following his guilty plea of attaining habitual felon status. On appeal,

Defendant argues the trial court committed error by failing to dismiss his charge for

maintaining a vehicle for keeping or selling controlled substances. Defendant also

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Opinion of the Court

filed a motion for appropriate relief challenging his plea to attaining habitual felon

status. After careful review, we conclude the trial did not commit error by denying

Defendant’s motion to dismiss. However, because we are bound by precedent, we

must grant his motion for appropriate relief.

I. Factual and Procedural Background

The record tends to reflect that on 12 October 2020, the Union County Sheriff’s

Office (“UCSO”) received information from a confidential informant that led to the

planning of a drug interdiction operation that same day. The law enforcement officers

involved were informed to look for a small, silver sedan with body damage.

Sergeant Chris Little, as part of the UCSO interdiction team, was sent to a

highway intersection to look out for a vehicle matching the description provided by

the informant. He spotted the corresponding vehicle—a silver Hyundai with body

damage. Sergeant Little recognized the driver and sole occupant as Defendant—who

Sergeant Little knew did not possess a valid driver’s license. Sergeant Little followed

Defendant for a short time and pulled him over.

When asked for his license and registration, Defendant told Sergeant Little

that he did not have a license. Sergeant Little placed Defendant under arrest, and

additional officers arrived at the scene to conduct a canine search of the car.

Detective Kaitlin Robillard of the UCSO arrived with a canine to assist with

the search. The canine alerted to the driver’s side door, and Detective Robillard

searched the interior of the car. Detective Robillard found a black bookbag on the

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front passenger floorboard. The bookbag contained a digital scale, a marijuana

grinder, plastic bags, a leafy green substance, a bag with a crystallized substance, a

bag with white powder, and some pills in a pill bottle. The pills and powder tested

positive for fentanyl, with a total tested weight of 4.41 grams. She also found a

handgun under the front passenger seat and, in a cupholder, a folded piece of brown

paper with a white, powdery substance on it. Among other items also found in the

car: social security card, a hotel receipt from the night before, a letter from Bank of

America, and a package—all of which had Defendant’s name on them. A box of

ammunition was also located in the vehicle. Defendant was transported to the

Sheriff’s Office for arrest processing.

On 14 January 2021, Defendant was indicted for possession of a firearm by a

felon, trafficking in opioids by possession, trafficking in opioids by transportation,

possession of drug paraphernalia, and keeping or maintaining a vehicle for keeping

or selling controlled substances. He was also indicted for the status offense of

habitual felon. At Defendant’s trial, he moved to dismiss all charges at the close of

the State’s evidence—which was denied.

The jury found Defendant guilty of both drug trafficking charges, possession of

drug paraphernalia, and maintaining a vehicle for keeping or selling controlled

substances. But the jury found Defendant not guilty of possession of a firearm by a

felon. Defendant pleaded guilty to his habitual felon status.

The trial court entered a consolidated judgment on the two trafficking and drug

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paraphernalia charges, sentencing Defendant to 73–93 months’ imprisonment. In a

separate judgment, the trial court sentenced Defendant in accordance with his

habitual felon status on the maintaining a vehicle for keeping or selling controlled

substances conviction to 44–65 months’ imprisonment, to run consecutively with his

other sentence. Defendant timely entered a notice of appeal.

II. Analysis

We consider whether the State presented sufficient evidence that Defendant

(1) kept or maintained the silver Hyundai and (2) did so for the purpose of keeping or

selling controlled substances in order to withstand Defendant’s motion to dismiss the

charge of keeping or maintaining a vehicle for the keeping or selling of controlled

substances. We further consider whether the Defendant’s habitual felon indictment

was defective pursuant to his motion for appropriate relief.

A. Standard of Review

We review 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). When conducting de novo

review, this Court “considers the matter anew and freely substitutes its own

judgment for that of the trial court.” State v. Sanders, 208 N.C. App. 142, 144, 701

S.E.2d 380, 382 (2010).

Defendant argues that the State failed to produce evidence sufficient to

support his conviction for keeping a vehicle under N.C. Gen. Stat. § 90-108(a)(7)

(2023). When reviewing a motion to dismiss for sufficiency of evidence, we determine

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whether “there is substantial evidence of each essential element of the crime and that

the defendant is the perpetrator.” State v. Osborne, 372 N.C. 619, 626, 831 S.E.2d

328, 333 (2019) (citation omitted). Substantial evidence is the amount “necessary to

persuade a rational juror to accept a conclusion.” Id. We consider the evidence in the

light most favorable to the State and give the State the benefit of every reasonable

inference drawn from that evidence. Id. “[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, when there is “more than a

scintilla of competent evidence” to support the charge, the case must be submitted to

the jury. Id. We determine “whether a reasonable inference of the defendant’s guilt

may be drawn from the circumstances.” State v. Lee, 348 N.C. 474, 488, 501 S.E.2d

334, 343 (1998).

To convict a defendant of maintaining a vehicle for the keeping or selling of

controlled substances, the State must show that the defendant (1) knowingly (2) kept

or maintained (3) a vehicle (4) which was used for keeping or selling (5) of controlled

substances. State v. Rogers, 371 N.C. 397, 401, 817 S.E.2d 150, 153 (2018) (citation

omitted). At issue in this case is whether substantial evidence was provided of the

second and fourth elements: that Defendant “kept or maintained” the vehicle and

that he did so for the purpose of “keeping or selling” controlled substances.

B. Keeping or Maintaining a Vehicle

A person “keeps” a vehicle under the meaning of subsection 90-108(a)(7) when

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he possesses a vehicle “for at least a short period of time” or intends to retain

possession of it in the future. Rogers, 371 N.C. at 402, 817 S.E.2d at 154. To

“maintain” a vehicle is 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)

(citation omitted). Whether a vehicle is “kept or maintained” for the keeping or

selling of controlled substances is determined by the totality of the circumstances.

State v. Hudson, 206 N.C. App. 482, 492, 696 S.E.2d 577, 584 (2010). Factors that

contribute to this totality include occupancy of the vehicle, the extent of the

defendant’s use of the vehicle, the vehicle’s title and ownership, property interest in

the vehicle, contribution to vehicle payments, and payment for repairs and

maintenance. State v. Weldy, 271 N.C. App. 788, 791, 844 S.E.2d 357, 361 (2020). As

this determination is made under the totality of the circumstances, no single factor

is dispositive. Hudson, 206 N.C. App. at 492, 696 S.E.2d at 584.

Defendant compares this case to our decision in State v. Weldy, where we held

there was insufficient evidence that the defendant “kept or maintained” the vehicle.

271 N.C. App. at 797, 844 S.E.2d at 365 (citation omitted). In that case, police

observed the defendant driving the vehicle for approximately twenty-five minutes.

Id. at 792, 844 S.E.2d at 361. He stopped at a hotel, came outside after a few minutes,

and was pulled over as he drove away. Id. at 792, 844 S.E.2d at 362. “Defendant’s

possession of the car for approximately 20–25 minutes, standing alone, was

insufficient evidence that Defendant ‘kept or maintained’ the car.” Id. at 794, 844

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S.E.2d at 363.

As in Weldy, there is no evidence in this case that Defendant “had title to or

owned the vehicle, had a property interest toward the vehicle, paid toward the

purchase of the vehicle, or paid for repairs to or maintenance of the vehicle.” Id.

Therefore, there is no evidence that Defendant “maintained” the car, and we must

determine if the State provided sufficient evidence that he “kept” it. Id.

While the evidence in Weldy was of such minimal possession that an inference

of “keeping” was not justified, there is no specific period of possession that indicates

a car was or was not “kept,” as that determination is made by examining the totality

of the circumstances. In State v. Rogers, for example, the defendant was observed

driving a Cadillac for approximately ninety minutes, and the State additionally

introduced a service receipt found inside the car, bearing the defendant’s name and

a date from about two and a half months before his arrest. 371 N.C. at 402, 817

S.E.2d at 154. While this receipt raised a reasonable inference that the defendant

had possessed the car for at least that amount of time, our Supreme Court noted that

it did not intend to imply that possession for that long was necessary to constitute

“keeping,” though it declined to take a position on whether keeping a car for “a much

shorter period of time” would suffice. Id. at 403 n.2, 817 S.E.2d at 154 n.2.

This Court has recognized possession for a significantly shorter period than in

Rogers as substantial evidence of “keeping” a vehicle. Hudson, 206 N.C. App. at 492,

696 S.E.2d at 584; cf. Rogers, 371 N.C. at 402, 817 S.E.2d at 154. In State v. Hudson,

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the defendant was pulled over while driving a truck pulling a car carrier, and drugs

were found in the trunk of one of the cars being transported. 206 N.C. App. at 484,

696 at 580. The bill of lading showed that the defendant picked up the car on 21

October 2008 and “maintained possession as the authorized bailee continuously and

without variation for two days before being pulled over . . . .” Id. at 492, 696 S.E.2d

at 584. We held this was sufficient possession of the car to support the defendant’s

conviction. Id.

This case falls somewhere in between Weldy and Hudson. While police only

observed Defendant driving the vehicle for a short period of time, several items were

found inside, tending to show Defendant controlled the vehicle for a longer period.

Officers found a hotel receipt from the day before, as well as mail and a social security

card with Defendant’s name on them. This evidence is sufficient to give rise to a valid

inference that Defendant possessed the vehicle to an extent sufficient to satisfy the

statute’s requirement that he kept the vehicle. N.C. Gen. Stat. § 90-108(a)(7).

C. Keeping or selling controlled substances

When viewing the evidentiary record under a light most favorable to the State,

we discern no error from the trial court’s denial of Defendant’s motion to dismiss

because reasonable inferences can be drawn that Defendant also “kept” the vehicle

for the purposes of keeping or selling controlled substances. Our Supreme Court in

State v. Rogers clarified that “[b]y making it a crime to ‘keep’ a car ‘which is used for

the keeping’ of controlled substances, subsection 90-108(a)(7) uses the word ‘keep’ and

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its variant ‘keeping’ to mean different things.” 371 N.C. at 403, 817 S.E.2d at 155.

Therefore, we look to, in a light most favorable to the State, whether the State

produced substantial evidence under the totality of the circumstances that Defendant

stored drugs in his car. Id.

Our courts consider factors such as: the amount of controlled substances found

in the vehicle; their packaging; whether the controlled substances were hidden in the

vehicle; whether there was a large amount of cash; and the presence of weapons and

“other implements of the drug trade.” State v. Miller, 264 N.C. App. 517, 524, 826

S.E.2d 562, 566–67 (2018) (citations omitted). Our inquiry focuses on the vehicles

use rather than its contents. Rogers, 371 N.C. at 405, 817 S.E.2d at 156 (citing State

v. Mitchell, 336 N.C. 22, 33, 442 S.E.2d 24, 30 (1994)). And “merely possessing or

transporting drugs inside a car—because, for instance, they are in an occupant’s

pocket or they are being taken from one place to another—is not enough to justify a

conviction under the ‘keeping’ element of subsection 90-108(a)(7).” Rogers, 371 N.C.

at 405, 817 S.E.2d at 156 (citing Mitchell, 336 N.C. at 33, 442 S.E.2d at 30).

Defendant principally relies on whether the controlled substances were hidden

in the vehicle to control our analysis. We agree that whether the controlled

substances are hidden in the vehicle is a factor to consider; however, such a factor

standing alone is not dispositive. In State v. Rogers, small bags of cocaine hidden in

the gas-cap compartment of the defendant’s car, combined with evidence of the same

bags and a digital scale in their hotel room, sufficiently raised an inference that the

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defendant split up portions of cocaine in their room and stored those portions in the

vehicle for sale. 371 N.C. at 404, 817 S.E.2d at 155. The Rogers opinion cautioned

that “merely having drugs in a car (or other place) is not enough to justify a

conviction” under subsection 90-108(a)(7). Id. at 406, 817 S.E.2d at 157. And “the

linchpin of the inquiry into whether a defendant was using a vehicle, building, or

other place for the keeping of drugs is whether the defendant was using the vehicle,

building, or other place for the storing of drugs.” Id. at 406, 817 S.E.2d at 156 (cleaned

up).

We upheld a conviction under subsection 90-108(a)(7) in State v. Dudley,

whereby the defendant stored trafficking amounts of methamphetamine in a false-

bottomed tire sealant can. 270 N.C. App. 775, 783, 842 S.E.2d 615, 621 (2020). Not

mentioned in Dudley was where within the vehicle officers located the false-bottomed

can. See generally id. The Dudley court looked at the totality of the circumstances to

determine whether the defendant attempted to hide the methamphetamine and

reiterated “‘[a] defendant who wants to store contraband will . . . want to store it in a

hidden place, which is exactly what putting the’ methamphetamine in the false-

bottomed tire-sealant can would accomplish.” Id. (citing Rogers, 371 N.C. at 404, 817

S.E.2d at 155). The false-bottomed can is a “small movable thing[ ]” which a person

could easily place within a car and remove it “soon thereafter.” Rogers, 371 N.C. at

405, 817 S.E.2d at 156. We do not see the hidden factor as one requiring such

permanent placement or attachment to the vehicle. Instead, we look at the

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defendant’s effort to hide the controlled substances. Dudley, 270 N.C. App. at 782,

842 S.E.2d at 620 (“In this case, as in Rogers and Alvarez, Defendant attempted to

hide the [controlled substance].”)

And we reached a similar result in State v. Alvarez, whereby the defendant

stored cocaine, wrapped in plastic and oil, in a false-bottomed compartment of their

truck. 260 N.C. App. 571, 575–76, 818 S.E.2d 178, 182–23 (2018). The question in

Alvarez was whether “the State presented [sufficient] evidence that [the defendant]

kept or maintained his pickup truck ‘over a duration of time’ for the purpose of

keeping or selling cocaine.” Id. at 573, 818 S.E.2d at 181. We reasoned that under

the totality of the circumstances, viewing the evidence in the light most favorable to

the State, the defendant knew of and constructed the false-bottom compartment. The

State thus produced sufficient evidence that the defendant kept or maintained the

vehicle “over a duration of time” for the purposes of keeping or selling cocaine. Id. at

576, 818 S.E.2d at 182–83.

As was done in Rogers, Dudley, and Alvarez, viewing the evidence in the light

most favorable to the State and drawing all reasonable inferences from the evidence,

a reasonable jury could find that Defendant used the vehicle to keep controlled

substances. The evidence here tends to show that law enforcement was deployed as

part of a drug interdiction team to look out for a vehicle matching the one driven by

Defendant. Upon arresting Defendant for driving without a license, a canine

examined the vehicle. After a positive alert, the vehicle was searched. The search

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revealed both a handgun under the front passenger seat and a black bookbag.

Included among the items located within the bookbag were a digital scale, a

marijuana grinder, plastic bags—some with removed corners, a leafy green

substance, a bag with a crystallized substance, a bag with white powder, and pills in

a bottle. In the context of the items found in the bookbag, items scattered about the

car included a handgun under the passenger seat and a folded piece of brown paper

with a white powdery substance inside. The powder in the cupholder was collected

as evidence but not tested in the laboratory since testing was only conducted “to a

potential highest charge.”1 The bag with white powder and pills tested positive for

fentanyl in the amount of 4.41 grams. The evidence located about the vehicle,

including the bookbag and its contents, and all reasonable inferences drawn

therefrom, based on the totality of the circumstances, support that Defendant was

using the vehicle for keeping or selling drugs. The trial court correctly denied

Defendant’s motion to dismiss the charge of keeping or maintaining a vehicle for

keeping or selling controlled substances.

III. Motion for Appropriate Relief

Last, we consider Defendant’s motion requesting resentencing “because the

habitual felon indictment pre-dated the offense date of all the substantive offenses

1 The other tested items established a trafficking weight of fentanyl and testing this additional

substance would not have resulted in a higher charge.

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[he] was tried for.” Defendant contends since the habitual felon indictment predates

the offense date of the felonies for which he was being tried, the trial court thus lacked

subject matter jurisdiction pursuant to a prior panel’s decision from this Court. See

State v. Ross, 221 N.C. App. 185, 727 S.E.2d 370 (2012). Since we are bound by

precedent, after careful consideration, we grant his motion.

“On appeal, we review the sufficiency of an indictment de novo.” State v.

McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). “When an indictment is

fatally defective, the trial court acquires no subject matter jurisdiction, and if it

assumes jurisdiction a trial and conviction are a nullity.” Ross, 221 N.C. App. at 188,

727 S.E.2d a 372 (quoting State v. Frink, 177 N.C. App. 144, 146, 627 S.E.2d 472, 473

(2006)). Pursuant to the Habitual Felons Act, “[t]he indictment charging the

defendant as an habitual felon shall be separate from the indictment charging him

with the principal felony.” N.C. Gen. Stat. § 14-7.3 (2023). “Properly construed this

[A]ct clearly contemplates that when one who has already attained the status of an

habitual felon is indicted for the commission of another felony, that person may then

be also indicted in a separate bill as being an habitual felon.” State v. Allen, 292 N.C.

431, 433, 233 S.E.2d 585, 587 (1977). Moreover, “the proceeding by which the [S]tate

seeks to establish that [the] defendant is an habitual felon is necessarily ancillary to

a pending prosecution for the ‘principal,’ or substantive, felony.” Id. at 433–34, 233

S.E.2d 585, 587.

In State v. Ross, the defendant “was initially indicted as an habitual felon on

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22 September 2008.” 221 N.C. App. at 190, 727 S.E.2d at 374. Then a superseding

habitual felon indictment correcting a file number was returned on 11 May 2009. Id.

Thereafter, on 20 July 2009, the defendant was indicted for “bribery of a juror, felony

obstruction of justice, and solicitation to commit bribery of a juror.” Id. at 187, 727

S.E.2d at 372. On appeal, the defendant argued that “the trial court lacked

jurisdiction . . . because the habitual felon indictment was returned months before

the June 2009 crimes occurred.” Id. at 188, 727 S.E.2d at 372. And so, a prior panel

of this Court determined “[i]t is difficult to see how the habitual felon indictment

could attach as ancillary to felonies that had not yet occurred.” Id. at 190, 727 S.E.2d

at 374 (quoting State v. Flint, 199 N.C. App. 709, 718, 682 S.E.2d 443, 448 (2009)).

Citing Allen, the Court reasoned, “[a]t the time the habitual felon indictments were

returned, there was no pending prosecution for the June 2009 crimes “to which the

habitual felon proceeding could attach as an ancillary proceeding” because the crimes

had not yet happened. Ross, 221 N.C. App. at 190, 727 S.E.2d at 374 (citing Allen,

292 N.C at 436, 233 S.E.2d at 589). The Court thus held “under the specific facts of

this case, the habitual felon indictment was not ancillary to the substantive felony

indictments for the June 2009 crimes.” Ross, 221 N.C. App. at 190, 727 S.E.2d at 374.

The present case is factually analogous to Ross. Here, Defendant was indicted

for his habitual felon status on 14 January 2020. However, the principal felony with

an enhanced sentence due to Defendant’s habitual felon status was committed on 12

October 2020. Defendant was not indicted for this underlying felony until 14 January

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2021. Thus, like Ross, “[a]t the time the habitual felon indictments were returned,

there was no pending prosecution . . . ‘to which the habitual felon proceeding could

attach as an ancillary proceeding’ because the crimes had not yet happened.” 221

N.C. App. at 190, 727 S.E.2d at 374 (quoting Allen, 292 N.C at 436, 233 S.E.2d at

589). Consequently, on account of the ruling by a prior panel of this Court, we are

compelled to hold that the trial court lacked jurisdiction over the habitual felon

charge and erred by accepting Defendant’s habitual felon guilty plea. See In re Appeal

from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)) (“Where a panel of

the Court of Appeals has decided the same issue, albeit in a different case, a

subsequent panel of the same court is bound by that precedent, unless it has been

overturned by a higher court.”). Following the holding of Ross, “we vacate

Defendant’s habitual felon guilty plea and remand to the trial court for resentencing

within appropriate sentencing ranges.” 221 N.C. App. at 191, 727 S.E.2d at 374.

In so holding, we note that our plain reading of the requirements set forth in

N.C. Gen. Stat. § 14-7.3 begs the question of whether the trial court is always divested

of subject matter jurisdiction when presented with facts such as those in this case.

An indictment for attaining habitual felon status is a sentence enhancement. See

Allen, 292 N.C. at 435, 233 S.E.2d at 588 (“The only reason for establishing that an

accused is an habitual felon is to enhance the punishment which would otherwise be

appropriate for the substantive felony which he has allegedly committed while in

such a status.”). Unless Defendant’s record has changed in some manner, e.g., by way

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of expunction, the date of a habitual felon would not necessarily undermine statutory

or constitutional protections. Accordingly, panels of this Court and future litigants

could benefit from the guidance of our Supreme Court addressing this concern.

IV. Conclusion

For the reasons discussed above, we hold that the trial court did not commit

error by denying Defendant’s motion to dismiss. However, we are bound by existing

case law to vacate and remand this matter to the trial court for resentencing.

NO ERROR IN PART; VACATED IN PART; REMANDED FOR

RESENTENCING.

Judge GRIFFIN concurs.

Judge HAMPSON dissents by separate opinion.

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No. COA 23-544 – State v. Garmon

HAMPSON, Judge, dissenting.

The primary issue before this Court is whether evidence of drugs found in a

backpack on the front passenger floorboard of a vehicle, standing alone, can support

a finding that Defendant kept or maintained the vehicle for the purpose of keeping or

selling drugs. Applying our existing precedent, I respectfully disagree with the

majority’s conclusion and would hold that it cannot. As such, in my view, the trial

court erred by not dismissing this charge.

A conviction for Maintaining a Vehicle for the Keeping or Selling of Controlled

Substances requires that the State show the defendant (1) knowingly (2) kept or

maintained (3) a vehicle (4) which was used for the keeping or selling (5) of controlled

substances. N.C. Gen. Stat. § 90-108(a)(7) (2023); State v. Rogers, 371 N.C. 397, 401,

817 S.E.2d 150, 153 (2018). Defendant raises only the second and fourth elements as

issues on appeal. I agree with the majority that the State provided sufficient evidence

that Defendant kept or maintained the vehicle, but I disagree that the State has

shown Defendant used the vehicle for the purpose of “keeping or selling” controlled

substances.

Defendant was convicted at trial for trafficking in opioids by possession and

transportation and does not contest those convictions on appeal. However, our

Supreme Court has made clear that Section 90-108(a)(7) does not create a separate

offense simply because a controlled substance was located inside a vehicle. Rogers,

371 N.C. at 405, 817 S.E.2d at 156 (citing State v. Mitchell, 336 N.C. 22, 33, 442 S.E.2d

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HAMPSON, J., dissenting

24, 30 (1994)). “[M]erely possessing or transporting drugs inside a car—because, for

instance, they are in an occupant’s pocket or they are being taken from one place to

another—is not enough to justify a conviction under the ‘keeping’ element of

subsection 90-108(a)(7).” Id. Our inquiry focuses on the use of the vehicle rather than

its contents. Mitchell, 336 N.C. at 34, 442 S.E.2d at 30.

As the majority acknowledges, the “keeping” element of the statute is satisfied

by evidence showing the vehicle was used for the storage of drugs. Rogers at 403, 817

S.E.2d at 154. The presence of drugs in a car is not sufficient for a conviction: the

State must produce “other incriminating evidence” showing that, under the totality

of the circumstances, the vehicle was used to store a controlled substance. State v.

Miller, 264 N.C. App. 517, 524, 826 S.E.2d 562, 566 (2019). In making this

determination, our courts have considered factors such as the amount of controlled

substances found in the vehicle, their packaging, whether the controlled substances

were hidden in the vehicle, and the accompanying presence of drug paraphernalia

and large amounts of cash. State v. Weldy, 271 N.C. App. 788, 795, 844 S.E.2d 357,

363 (2020). Our task is to determine whether the State has provided substantial

evidence that, combined with reasonable inferences, indicates under the totality of

the circumstances Defendant used the vehicle to store drugs. Rogers, 371 N.C. at 406,

817 S.E.2d at 157.

When drugs found in a vehicle were concealed in some way, our courts have

tended to hold substantial evidence was presented showing the vehicle was used to

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store those drugs. The majority relies on Rogers, Alvarez, and Dudley, each of which

involved the concealing of drugs in the vehicle in question. In Rogers bags of cocaine

were hidden in the gas cap, 371 N.C. at 404, 817 S.E.2d at 155; in Alvarez the

defendant had stored cocaine, wrapped in plastic and oil, in a false compartment in

his truck, 260 N.C. App. 571, 575–76, 818 S.E.2d 178, 182–23 (2018); and in Dudley

methamphetamine was found hidden in a false-bottomed tire sealant can. 270 N.C.

App. 775, 783, 842 S.E.2d 615, 621 (2020).

In this case, the drugs found were kept in a backpack rather than concealed in

a hidden compartment. Whether or not the controlled substances were hidden is only

one factor used in our analysis, but concealment is a strong indicator that the vehicle

was used to store drugs. “[A] defendant who wants to store contraband will, all other

things equal, want to store it in a hidden place[.]” Rogers, 371 N.C. at 404, 817 S.E.2d

at 155. Locating drugs in a backpack, which is used to more easily carry items from

place to place, does not raise a similar inference. I would hold that this is analogous

to cases in which defendants were found with drugs on their person while driving,

which our courts have consistently held cannot support a conviction under Section

90-108(a)(7).

When drugs are found on a defendant’s person while driving a car, this

generally “do[es] not implicate the car” with the sale or keeping of drugs. Mitchell,

336 N.C. at 33, 442 S.E.2d at 30. In Weldy, drugs were found in the defendant’s

waistband and pants pocket. 271 N.C. App. at 796, 844 S.E.2d at 364. Although the

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HAMPSON, J., dissenting

drugs found were in amounts sufficient to support the defendant’s trafficking

convictions—56.39 grams of methamphetamine and 6.84 grams of heroin—neither

possession of drugs in a car nor using the car to transport drugs is sufficient to show

that the vehicle was kept for the purpose of keeping or selling controlled substances.

Id. Accordingly, we held there was insufficient evidence to support a conviction under

subsection 90-108(a)(7). Id. at 797, 844 S.E.2d at 365.

Similarly, in Mitchell, the defendant was seen with bags of marijuana in his

shirt pocket before getting into his car, which led to a reasonable inference that he

possessed marijuana while in his vehicle. 336 N.C. at 33, 442 S.E.2d at 30. 2 Even

combined with evidence of drug paraphernalia including baggies and a scale found in

the defendant’s home, the Court held that while the evidence was “consistent with

drug use, or with the sale of drugs generally . . . they do not implicate the car with

the sale of drugs.” Id. Nor did finding a loose marijuana cigarette in the car indicate

that the defendant was using the car for the storage of drugs. Id. “[P]eople often leave

cigarettes or other small moveable things in their cars but then take them out soon

thereafter.” Rogers, 371 N.C. at 405, 817 S.E.2d at 156.

2 Rogers abrogates Mitchell on one part of its interpretation of subsection 90-108(a)(7). The

Supreme Court in Mitchell defined the keeping of drugs to require “not just possession, but

possession that occurs over a duration of time.” Mitchell, 336 N.C. at 32, 442 S.E.2d at 30. In Rogers

the Court rejected this requirement that drugs be stored for a certain minimum period of time: “[t]he

critical question is whether a defendant’s car is used to store drugs, not how long the defendant’s car

has been used to store drugs for.” 371 N.C. at 406, 817 S.E.2d at 156 (emphasis in original). Despite

this, the Rogers Court recognized that Mitchell reached the correct result. Id. at 405, 817 S.E.2d at

156.

4

STATE V. GARMON

HAMPSON, J., dissenting

Though Defendant in this case did not have the drugs directly on his person,

they were not concealed or secreted in the vehicle. Instead, all the drugs and

paraphernalia located by law enforcement and relied on by the prosecution were kept

in a backpack placed on the front passenger side floor of the car.3 The presence of

this paraphernalia and controlled substances stored in a backpack in amounts that

support trafficking convictions are certainly consistent with the general use and sale

of drugs. However, “they do not implicate the car with the sale of drugs.” Mitchell,

336 N.C. at 33, 442 S.E.2d at 30 (emphasis added). A backpack, absent other evidence,

constitutes a relatively “small moveable thing” a person typically places in a car and

removes “soon thereafter.” Rogers, 371 N.C. at 405, 817 S.E.2d at 156. There was no

evidence the backpack was concealed in the vehicle. Nor was there evidence linking

the car itself to any sale—past or intended—of the drugs. There was no evidence the

car itself was being used for the keeping or storing of controlled substances, as all

controlled substances and paraphernalia found were in the backpack. There was no

evidence that the backpack was left in the car when Defendant was not driving.

The majority emphasizes our decision in Dudley, in which the defendant stored

methamphetamine in the false bottom of a can of tire sealant. 270 N.C. App. at 783,

842 S.E.2d at 621. It notes that this can “is a ‘small movable thing’ which a person

3 As noted above, there was evidence that a white powdery substance was located in the

cupholder of the vehicle. However, the substance was not tested and no evidence introduced showing

it to be a controlled substance. The State does not rely on the existence of this substance as a basis

for Defendant’s conviction.

5

STATE V. GARMON

HAMPSON, J., dissenting

could easily place within a car and remove it ‘soon thereafter,’ ” as described in Rogers,

but that we still held that its presence in the vehicle was sufficient to raise an

inference that the vehicle was used to store drugs.

Dudley is distinguishable from this case. The can of tire sealant was

specifically configured to conceal drugs in its false bottom: we noted it showed

“Defendant attempted to hide the methamphetamine,” 270 N.C. at 782, 842 S.E.2d

at 620, whereas there is no indication that the backpack in this case was used to hide

anything. Unlike a backpack, a can of tire sealant is not typically used to transport

items. Also unlike a backpack, a can of tire sealant is an object which may reasonably

be inferred to be intended to be kept in a vehicle—or at least has a circumstantial

connection with a motor vehicle.

The majority’s opinion in this case threatens to sub silentio overrule our

Supreme Court’s holding that merely possessing or transporting drugs in a car is

insufficient to support a conviction under subsection 90-108(a)(7). Rogers, 371 N.C.

at 405, 817 S.E.2d at 156. Under the majority’s analysis, would a defendant who

places drugs in a jacket pocket and then takes that jacket off in their vehicle now be

guilty of keeping a vehicle for the keeping of drugs? What if that defendant places the

drugs in plain sight on the passenger seat? I am unable to distinguish between

transporting and keeping drugs given the majority’s holding.

Indeed, in State v. Dickerson, this Court reasoned “the fact that a defendant

was in his vehicle on one occasion when he sold a controlled substance does not by

6

STATE V. GARMON

HAMPSON, J., dissenting

itself demonstrate the vehicle was kept or maintained to sell a controlled substance.”

152 N.C. App. 714, 716, 568 S.E.2d 281, 282 (2002). Dickerson—relying on Supreme

Court precedent—teaches that there must be evidence which goes beyond “just

possession” in the vehicle. Id. (internal quotations and citation omitted). Here, as in

Dickerson, there is no such evidence.

Thus, on the facts of this case, I would conclude the State failed to provide

sufficient evidence that Defendant’s vehicle was used for the keeping of drugs.

Therefore, the trial court erred in denying Defendant’s Motion to Dismiss this charge.

Consequently, I would reverse Defendant’s conviction for Keeping or Maintaining a

Vehicle for Keeping or Selling Controlled Substances in Union County file number

20CRS054203 and, in turn, vacate Defendant’s plea to attaining Habitual Felon

Status in Union County file number 20CVS000028.4 Accordingly, I respectfully

dissent from the Opinion of the Court.

4 In light of the result reached by the majority opinion, however, I agree with the majority

that Defendant’s Motion for Appropriate Relief should be allowed and this matter should be

remanded to the trial court for resentencing on his habitual felon conviction.

7