State v. Williams

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1100

Filed: 21 April 2015

Sampson County, Nos. 13 CRS 50318, 14 CRS 147

STATE OF NORTH CAROLINA

v.

JOHNNY WILLIAMS

Appeal by defendant from judgment entered 30 May 2014 by Judge W. Douglas

Parsons in Sampson County Superior Court. Heard in the Court of Appeals 4 March

2015.

Attorney General Roy Cooper, by Assistant Attorney General Michael Bulleri,

for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Jillian C.

Katz, for defendant-appellant.

INMAN, Judge.

Johnny Williams (“defendant”) appeals from judgment after a jury found him

guilty of manufacturing methamphetamine, keeping and maintaining a dwelling

house for keeping and using a controlled substance, trafficking in methamphetamine

by manufacture, and trafficking in methamphetamine by possession. On appeal,

defendant argues that the trial court erred by: (1) denying defendant’s motion to

suppress evidence obtained following an unlawful search of his home; (2) instructing

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Opinion of the Court

the jury on the theory of aiding and abetting on the charge of manufacturing

methamphetamine; and (3) denying defendant’s motion to dismiss the charge of

maintaining a dwelling for keeping and using a controlled substance.

After careful review, we conclude that the trial court did not err.

Background

On 6 February 2013, Tessie Cashwell (“Tessie”) called 911 and requested

assistance from the Sampson County Sheriff’s Office (“Sheriff’s Office”) to help her

retrieve personal belongings from the home of defendant, Tessie’s ex-boyfriend at the

time.1 Deputy Jerry Cashwell (“Cashwell”)2 and Agent Brandon Pope (“Pope”) met

Tessie at defendant’s residence at 1881 Harnett Church Road in Roseboro. Defendant

allowed both officers to enter his home and wait while Tessie collected her personal

items.

Shortly thereafter, Captain Josuph Frischmann (“Captain Frischmann”) and

Lieutenant Rhonda Medlin (“Lieutenant Medlin”), also of the Sheriff’s Office, arrived

at defendant’s residence. Captain Frischmann met Cashwell on the front porch and

asked if defendant was inside. Cashwell said that he was, so Captain Frischmann

walked into the home. Once inside, Captain Frischmann saw defendant and

explained that he was there to investigate for the presence of drugs at the property.

1 Tessie and defendant married on 14 March 2014.

2 Tessie and Deputy Cashwell are not related.

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Defendant informed Captain Frischmann that there were no drugs in the house but

that he was “welcome to look.” After pausing briefly, defendant pointed to a door

down the hallway and said, “It’s in there. I want them out.” Captain Frischmann

walked toward the door, announced his presence, and then opened the door to find a

woman and man lying on top of a bed. After escorting the individuals into the living

room, Captain Frischmann asked defendant to step outside to talk. He then

presented defendant with a consent form to search the premises, which defendant

read and signed.

A search of the house revealed a number of controlled substances and related

paraphernalia, to wit: (1) one mason jar containing 310 grams of liquid

methamphetamine; (2) one plastic bag containing an unspecified amount of a powder

methamphetamine and pseudoephedrine mixture; (3) glass, plastic, and aluminum

foil smoking devices; (4) a marijuana cigarette; and (5) multiple plastic baggies and

rolling papers. Additionally, the search yielded several items consistent with the

manufacture of methamphetamine, including: (1) a Pyrex dish with

methamphetamine residue; (2) a razor blade coated with an off-white colored

substance; (3) blue shop paper towels containing white residue, which Captain

Frischmann testified were typically used as filters in the methamphetamine

manufacturing process; (4) a one-gallon can of acetone; (5) one can of Coleman fuel;

(6) a 50-pound bag of ammonium nitrate fertilizer; (7) a two-pound bottle of sodium

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hydroxide crystal drain opener; (8) camouflage netting; and (9) a lighting system. A

few hundred yards away from the house, officers found four plastic trash bags

containing a curled-up white tube, an empty container of drain cleaner, plastic bottles

containing white sludge and green liquid, and multiple pieces of burnt aluminum foil.

At trial, defendant moved to suppress all evidence gained from the search. He

argued that Captain Frischmann did not have consent to enter the house because his

purpose was to investigate narcotics, whereas Cashwell and Pope were there to help

Tessie collect her personal items. Thus, defendant argued that because the

subsequent search stemmed from Captain Frischmann’s unlawful entrance, all

evidence gained from the search should have been excluded. The trial court denied

defendant’s motion. In its written order, the trial court concluded that defendant’s

consent to the search of his home was voluntary, intelligent, and knowing, and that

the evidence obtained pursuant to the search had not been tainted.

At the close of the State’s evidence, the trial court granted defendant’s motion

to dismiss the charge of conspiracy. Over defendant’s objection, the trial court

instructed the jury that it could convict defendant of the crime of manufacturing

methamphetamine if it found that he aided or abetted any other individual in that

crime. The jury found defendant guilty of manufacturing methamphetamine,

maintaining a dwelling for the purpose of keeping and using a controlled substance,

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and trafficking in methamphetamine by manufacture and possession. Defendant

gave notice of appeal in open court.

Discussion

I. Motion to Suppress

Defendant first argues that the trial court erred by denying his motion to

suppress. He contends that Captain Frischmann’s initial entry into the home was

illegal under the Fourth Amendment, and therefore, all evidence obtained from the

subsequent search should have been excluded as fruit of the poisonous tree. Although

we agree that Captain Frischmann’s entry was unlawful, the evidence was not

sufficiently tainted to warrant application of the exclusionary rule.

As a threshold matter, the State contends that defendant has failed to preserve

this issue on appeal because: (1) the motion to suppress was improperly brought

under N.C. Gen. Stat. § 15A-975 (2013); (2) the motion was not timely; and (3) defense

counsel failed to support the objection to the admission of the challenged evidence on

the grounds stated in his brief. We disagree.

Defense counsel claimed that, in pretrial discovery, he was informed by the

State that Captain Frischmann arrived at defendant’s house contemporaneously with

officers Cashwell and Pope, with no indication that Captain Frischmann had a

separate purpose for being at the scene. Defense counsel entered his motion to

suppress immediately after Captain Frischmann testified on cross-examination that

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he walked into the home with an investigative purpose after officers Cashwell and

Pope were already at the scene. Under section 15A-975(a), a defendant may move to

suppress evidence during trial if “the defendant did not have reasonable opportunity

to make the motion before trial[.]” Here, defendant had no reasonable opportunity to

enter the suppression motion before trial, because he could not have known that

Captain Frischmann entered defendant’s home with a different purpose than officers

Cashwell and Pope until that information was elicited during testimony.

Furthermore, defense counsel moved to suppress any evidence found in the

subsequent search on the ground that such evidence was tainted by Captain

Frischmann’s allegedly unlawful entry. This is the same argument that defendant

now presents on appeal. Accordingly, we conclude that defendant’s motion was

timely brought and sufficiently stated the grounds upon which it was entered. See

generally State v. Roper, 328 N.C. 337, 361, 402 S.E.2d 600, 614 (1991). The State’s

argument that this issue has not been preserved for appellate review is overruled.

In our review of trial court orders addressing motions to suppress, “the trial

court’s findings of fact are conclusive on appeal if supported by competent evidence,

even if the evidence is conflicting. This Court must not disturb the trial court’s

conclusions if they are supported by the [trial] court’s factual findings. However, the

trial court’s conclusions of law are fully reviewable on appeal.” State v. Harwood, 221

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N.C. App. 451, 454-55, 727 S.E.2d 891, 895-96 (2012) (internal quotation marks

omitted).

Here, the trial court entered a written order denying defendant’s motion to

suppress, which contained the following factual findings:

1. The officers were at the location of the search, the

defendant’s house, as a result of a legitimate call to the 911

center for assistance;

2. The defendant was not placed into custody at any time

prior to or during the search of the premises;

3. The defendant was presented with a voluntary consent

to search form by the officers, which was explained to him,

and executed by the defendant prior to any search of the

premises;

4. There were no threats, inducements or promises made

to the defendant by any law enforcement officer;

5. The defendant voluntarily, intelligently, and knowingly

waived his Fourth Amendment rights, and consented to a

search of his premises.

Based on these findings, the trial court concluded that: (1) the consent form signed

by defendant was valid and was given voluntarily, intelligently, and knowingly; and

(2) none of the evidence obtained pursuant to the search was tainted.

Defendant challenges the trial court’s determination that he was presented

with the consent form prior to any search of the residence.3 Specifically, he contends

3The trial court included this determination in its findings of fact, presumably based on the evidence

showing that a full investigative search of the premises did not occur until after defendant signed the

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that when Captain Frischmann walked through his front door with the subjective

intent to investigate drug activity, he was not granted the same consent previously

given to officers Cashwell and Pope, whom defendant allowed to enter his home for

the specific purpose of assisting Tessie gather her belongings. Therefore, defendant

argues that because Captain Frischmann entered his home without first obtaining a

warrant or receiving consent, in the absence of exigent circumstances, his entrance

constituted an unlawful search under the meaning of the Fourth Amendment. We

agree.

The Fourth Amendment provides that “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated[.]” U.S. Const. amend. IV. “[G]enerally speaking, an

intrusion into a residence is a search within the meaning of the Fourth Amendment,

for physical entry of the home is the chief evil against which the wording of the Fourth

Amendment is directed.” State v. Barnes, 158 N.C. App. 606, 610, 582 S.E.2d 313,

317 (2003) (quotation marks omitted). Furthermore, “[i]t is a basic principle of Fourth

Amendment law that searches and seizures inside a home without a warrant are

consent form. However, defendant argues that Captain Frischmann’s entry, in and of itself, was a

“search” under the meaning of the Fourth Amendment. Because this question requires the application

of legal principles, we will consider the trial court’s finding to also be an implicit conclusion of law that

Captain Frischmann’s entry did not constitute a search, which we will review de novo. See State v.

Sparks, 362 N.C. 181, 185, 657 S.E.2d 655, 658 (2008) (“In distinguishing between findings of fact and

conclusions of law, as a general rule, . . . any determination requiring the exercise of judgment or the

application of legal principles is more properly classified a conclusion of law.” (internal quotation

marks omitted)).

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presumptively unreasonable.” State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213

(1977) (internal quotation marks omitted); see also Payton v. New York, 445 U.S. 573,

590, 63 L. Ed. 2d 639, 653 (1980) (“[T]he Fourth Amendment has drawn a firm line

at the entrance to the house.”).

However, it is well established that an exception to this rule exists when the

search of a home is based upon lawful consent. See State v. Stone, 179 N.C. App. 297,

304, 634 S.E.2d 244, 249 (2006). Consent refers to “a statement to the officer, made

voluntarily . . . giving the officer permission to make a search.” N.C. Gen. Stat. §

15A-221(b) (2013). “[C]onsent . . . must be freely and intelligently given, without

coercion, duress or fraud, and the burden is upon the [S]tate to prove that it was so,

the presumption being against the waiver of fundamental constitutional rights.”

State v. Vestal, 278 N.C. 561, 578-79, 180 S.E.2d 755, 767 (1971). The suspect may

limit the scope or duration of a consent search. “The scope of a valid consent search

is measured against a standard of objective reasonableness where the court asks

‘what would the typical reasonable person have understood by the exchange between

the officer and the suspect?’ ” State v. Hagin, 203 N.C. App. 561, 564, 691 S.E.2d 429,

432 (2010) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302

(1991)).

Here, evidence presented at trial showed that officers Cashwell and Pope

arrived at defendant’s residence in response to a 911 call from Tessie requesting

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Opinion of the Court

police assistance while she collected her personal belongings. Cashwell arrived first

at the scene, followed closely by Pope—both of whom testified that they reported to

defendant’s home in response to the request for domestic assistance. When he first

approached the front door, Cashwell explained to defendant that the officers were

there to assist Tessie, and defendant allowed them to enter his home while Tessie

gathered her personal items.

Shortly thereafter, Captain Frischmann walked in through the front door,

found defendant, and stated that his purpose for being inside defendant’s home was

to search for the presence of narcotics. It is undisputed that Captain Frischmann did

not knock at the door or ask permission to enter defendant’s home—he simply walked

in.

Under these circumstances, we believe that Captain Frischmann’s entry

constituted an unlawful search. He crossed the threshold of defendant’s home, which

our Courts have recognized as “the chief evil against which the wording of the Fourth

Amendment is directed.” Barnes, 158 N.C. App. at 610, 582 S.E.2d at 317 (quotation

marks omitted). And under the analysis set out in Jimeno, 500 U.S. at 251, 114 L.

Ed. 2d at 302, this search exceeded the scope of consent defendant gave to Cashwell

and Pope. The nature of the initial consent was for Cashwell and Pope to stand by

while Tessie collected her belongings. Defendant did not give the officers consent to

search—he merely allowed them to wait inside his home until Tessie was ready to

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leave. Therefore, when Captain Frischmann walked in through defendant’s front

door searching for the presence of narcotics, he was inherently exceeding the scope of

that consent. The nature of Captain Frischmann’s presence in the home was

investigative, not supportive. Based on this distinction, we conclude that no

reasonable person would have understood defendant’s approval of Cashwell and Pope

waiting for Tessie inside his living room to include consent for a third officer to show

up later, walk in unannounced, and search for drugs. Because “[t]he scope of the

search can be no broader than the scope of the consent,” State v. Jones, 96 N.C. App.

389, 397, 386 S.E.2d 217, 222 (1989), Captain Frischmann’s initial entry into

defendant’s home was unlawful under the Fourth Amendment.

Given the illegality of Captain Frischmann’s entry, we must determine

whether that Fourth Amendment violation tainted the subsequent consent search of

the home. It is true that “[e]vidence that is discovered as a direct result of an illegal

search or seizure is generally excluded at trial as fruit of the poisonous tree[.]” State

v. Jackson, 199 N.C. App. 236, 244, 681 S.E.2d 492, 497 (2009) (emphasis added).

However,

[w]e need not hold that all evidence is ‘fruit of the poisonous

tree’ simply because it would not have come to light but for

the illegal actions of the police. Rather, the more apt

question in such a case is whether, granting establishment

of the primary illegality, the evidence to which instant

objection is made has been come at by exploitation of that

illegality or instead by means sufficiently distinguishable

to be purged of the primary taint.

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Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455 (1963). The

United States Supreme Court has articulated three nonexclusive factors that courts

should consider in determining whether the taint from an illegal search has

dissipated: (1) the time elapsed between the Fourth Amendment violation and the

procurement of consent or confession; (2) the presence of intervening circumstances;

and (3) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422

U.S. 590, 603-04, 45 L. Ed. 2d 416, 427 (1975). “[T]he Brown test does not require

that each of the factors set forth be resolved in favor of the Government,” U.S. v.

Seidman, 156 F.3d 542, 549 (4th Cir. 1998) (quotation marks omitted), but rather,

this analysis requires a “careful sifting of the unique facts and circumstances of each

case,” U.S. v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854 (1973)).

The United States Court of Appeals for the Fourth Circuit’s analysis in

Seidman is persuasive here. See State v. Wheeler, 202 N.C. App. 61, 67, 688 S.E.2d

51, 55 (2010) (noting that decisions from the Fourth Circuit are not binding on this

Court, but may be utilized as persuasive reasoning). In Seidman, the defendant was

accused of embezzling funds from a labor union for which he served as Comptroller.

Seidman, 156 F.3d at 544. The police arranged for Ronald Schoop (“Schoop”), one of

the defendant’s alleged co-conspirators, to speak with the defendant at his home

while wearing an electronic recording device. Id. at 545. Schoop knocked on the

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defendant’s door repeatedly, but no one answered, so he opened the unlocked door

and walked in. Id. The defendant was standing in a hallway near the door and led

Schoop to the kitchen where the two talked for the next forty-five minutes. Id. At

trial, the prosecution sought to admit incriminating statements made by the

defendant during this conversation, but the defendant moved to suppress those

statements as resulting from Shoop’s unlawful entry into the home. Id. at 547.

On appeal, the Fourth Circuit court assumed, but did not decide, that Schoop’s

entrance was unlawful under the Fourth Amendment. Id. at 549. However, in

conducting the analysis set out by the United States Supreme Court in Wong Sun

and its progeny, the court held that the taint created by the unlawful entry was

purged by independent acts of the defendant. Id. at 550. Although the time between

the unlawful entry and subsequent conversation was short, the court determined that

the second and third Brown factors weighed against suppression of the incriminating

statements. The court reasoned:

Almost immediately after Schoop entered the home, any

taint arising from Schoop's entry was attenuated by

Seidman's consent to the conversation. Shortly after

Schoop opened the door to Seidman's house, Seidman shut

the front door behind Schoop, and Seidman motioned him

into the kitchen. These intervening acts indicated

Seidman's willingness to engage in a conversation with

Schoop. More importantly, shutting the door behind

Schoop and motioning him into the kitchen were

independent acts of free will by Seidman. . . . Seidman

never asked Schoop to leave.

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The third [Brown] factor also weighs against suppression.

. . . The degree of coercion resulting from the police officers'

illegal acts in Wong Sun and Brown v. Illinois simply was

not present here. . . . Schoop never made any threats to

Seidman or exerted any force towards him. Seidman now

claims on appeal that he did not ask Schoop to leave

because Schoop intimidated him. . . . With the exception of

Seidman's own testimony, there is simply no evidence to

suggest that Schoop intimidated Seidman.

Id. at 549-50 (citations omitted).

In this case, like in Seidman, Captain Frischmann’s unlawful entry was “at

worst a minor and technical invasion” of defendant’s rights, Seidman, 156 F.3d at

549, and defendant’s own independent acts of free will sufficiently attenuated the

taint from the unlawful entry to justify the trial court’s denial of defendant’s motion

to suppress. As soon as Captain Frischmann walked into the home, he spoke with

defendant, apprised him of his purpose for being there, and asked to search the

residence for the presence of drugs. Defendant responded by saying that there were

no drugs in the house, but that the officers were “welcome to look.” Defendant then

paused, pointed to a bedroom down the hallway, and told Captain Frischmann, “It’s

in there. I want them out.” Defendant’s immediate oral consent to search and request

for Captain Frischmann to remove the individuals from a bedroom in his residence

indicated a willingness on defendant’s behalf to allow Captain Frischmann to carry

out his duties as an investigative officer. It is undisputed that defendant never asked

Captain Frischmann to leave the home or stop his search once it began. Defendant

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Opinion of the Court

even helped Captain Frischmann find incriminating evidence by telling him that the

acetone was kept in the freezer. As in Seidman, the violation of defendant’s Fourth

Amendment rights in this case “pales in comparison” to cases where the taint of an

unlawful search or seizure was not sufficiently attenuated. See, e.g., Wong Sun, 371

U.S. at 486, 9 L. Ed. 2d at 454 (holding that where multiple officers broke open the

door of the defendant’s home and almost immediately handcuffed and arrested him,

the defendant’s incriminating statements were not the result of free will under the

circumstances sufficient to purge the taint of the unlawful entrance); Brown, 422

U.S. at 592, 604-05, 45 L. Ed. 2d at 421, 428 (holding that the defendant’s

incriminating statements were not the result of free will where they were made after

officers broke into his home to conduct an illegal search and arrested the defendant

while pointing their weapons at him). Defendant here consented to the search of his

home twice—once orally after Captain Frischmann’s initial entry and again in

writing after being presented with and reading a consent form shortly after Captain

Frischmann removed the individuals from the back bedroom (at defendant’s request).

There is no evidence that defendant was arrested, intimidated, or coerced in any way

prior to giving either form of consent.

Accordingly, based on the factors enunciated by the United States Supreme

Court in Wong Sun and Brown, we conclude that the search of defendant’s residence

and the evidence gained therefrom did not result from the exploitation of Captain

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Frischmann’s unlawful entry into the home. Any taint arising from the initial entry

was purged by defendant’s independent acts of free will and his voluntary, knowing,

and intelligent consents to search—both oral and written. Therefore, we conclude

that the trial court’s denial of defendant’s motion to suppress was free from error.

II. Aiding and Abetting Instruction

Defendant next argues that the trial court erred by instructing the jury on

aiding and abetting as a theory of criminal liability for the charge of manufacturing

methamphetamine. We disagree.

“Properly preserved challenges to the trial court’s decisions regarding jury

instructions are reviewed de novo, by this Court. But jury instructions are not

reviewed in isolation.” State v. King, __ N.C. App. __, __, 742 S.E.2d 315, 319 (2013)

(internal quotation marks and citation omitted).

This Court reviews jury instructions contextually and in

its entirety. The charge will be held to be sufficient if it

presents the law of the case in such manner as to leave no

reasonable cause to believe the jury was misled or

misinformed. The party asserting error bears the burden of

showing that the jury was misled or that the verdict was

affected by [the] instruction. Under such a standard of

review, it is not enough for the appealing party to show that

error occurred in the jury instructions; rather, it must be

demonstrated that such error was likely, in light of the

entire charge, to mislead the jury.

State v. Blizzard, 169 N.C. App. 285, 296–97, 610 S.E.2d 245, 253 (2005) (citation,

quotation marks, and ellipses omitted). “It is generally error, prejudicial to

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defendant, for the trial court to instruct the jury upon a theory of a defendant’s guilt

which is not supported by the evidence.” State v. Brown, 80 N.C. App. 307, 311, 342

S.E.2d 42, 44 (1986).

Aiding and abetting is a theory of criminal liability, not a substantive offense.

See State v. Fuller, 179 N.C. App. 61, 67, 632 S.E.2d 509, 513 (2006). A jury

instruction on aiding and abetting is proper where there is evidence: “(1) that the

crime was committed by another; (2) that the defendant knowingly advised,

instigated, encouraged, procured, or aided the other person; and (3) that the

defendant’s actions or statements caused or contributed to the commission of the

crime by the other person.” State v. Baskin, 190 N.C. App. 102, 111, 660 S.E.2d 566,

573 (2008) (quotation marks omitted).

We conclude that the State presented sufficient evidence of all three elements

here to support the trial court’s instruction on aiding and abetting for the charge of

manufacturing methamphetamine. Defendant told officers at the scene that an

acquaintance of his named Norman Ray Faircloth (“Faircloth”) was running a

methamphetamine lab at a house on Hollandtown Road. Captain Frischmann

testified that defendant was “nervous” during the search of his residence, and every

time Captain Frischmann got near a piece of evidence, defendant “would come

running in and tell [him] that [Faircloth] was cooking methamphetamine.” When

asked about the methamphetamine manufacturing activities at Hollandtown Road,

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defendant told Captain Frischmann that “[t]hey took over my house.” Defendant also

told the officers that he allowed Faircloth’s wife, Monica Dawson (“Dawson”), and her

twelve-year-old daughter to sleep in his house for the previous week because he

feared that they were unsafe at Faircloth’s residence.

Defendant testified that he had witnessed Faircloth cook methamphetamine

in the past, and that he allowed Faircloth to come “in and out” of defendant’s

residence in the week leading up to the search of his home. Defendant claimed that

his relationship with Faircloth was one built on deception, and that his intention

behind allowing Faircloth to spend time in his residence was to gather information

before informing the police about Faircloth’s drug activity. However, Captain

Frischmann testified that police had been investigating Faircloth for over a year

before the search of defendant’s residence, and defendant provided “very limited

information” as to Faircloth’s methamphetamine production. The only information

defendant gave Captain Frischmann before the search was that Faircloth was

cooking methamphetamine, which was “common knowledge” according to Captain

Frischmann. Furthermore, defendant testified that Dawson, his houseguest, actively

assisted Faircloth in the manufacture of methamphetamine by washing out cookware

and plastic dishes and pouring liquid methamphetamine into a filter during the

manufacturing process. A Pyrex dish with methamphetamine residue, 310 grams of

liquid methamphetamine, and blue shop paper towels containing white residue,

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Opinion of the Court

sometimes used as filters in this endeavor, were all found in defendant’s residence.

Defendant also stated that he had been allowing Faircloth and Dawson to use his

vehicle during the week leading up the search, and that defendant had helped

Faircloth unload a blue container with a bag of fertilizer from the trunk of his car.

When asked by Captain Frischmann what materials were inside the blue container,

defendant replied “meth lab items.”

In sum, the State presented substantial evidence that Faircloth and Dawson

were engaged in the manufacture of methamphetamine, and that, at the very least,

defendant allowed them to use his home and his vehicle to carry that crime to fruition.

Therefore, each of the elements needed to support a jury instruction on aiding and

abetting for the crime of manufacturing methamphetamine were satisfied. See

Baskin, 190 N.C. App. at 111-12, 660 S.E.2d at 573. Defendant’s argument is

overruled.

III. Maintaining a Dwelling

Defendant’s final argument on appeal is that the trial court erred by denying

his motion to dismiss the charge of maintaining a dwelling for the purpose of keeping

and using a controlled substance. We disagree.

In ruling on a motion to dismiss based on insufficiency of evidence, the trial

court must determine whether there is substantial evidence of each element of the

offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).

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“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d

164, 169 (1980). When reviewing the evidence, the trial court must consider even

incompetent evidence in the light most favorable to the prosecution, granting the

State the benefit of every reasonable inference. State v. Brown, 310 N.C. 563, 566,

313 S.E.2d 585, 587 (1984). Any contradictions or discrepancies in the evidence

should be resolved by the jury. Id.

Under N.C. Gen. Stat. § 90-108(a)(7) (2013) it is unlawful for any person to

“knowingly keep or maintain any . . . dwelling house, building, . . . or any place

whatever, which is resorted to by persons using controlled substances . . . or for the

purpose of using such substances, or which is used for the keeping or selling of the

same[.]” Payment of rent is sufficient to satisfy the requirement that the defendant

“keep or maintain” the building or house in question. See State v. Bowens, 140 N.C.

App. 217, 221-22, 535 S.E.2d 870, 873 (2000). “The determination of whether a

vehicle, or a building, is used for keeping or selling controlled substances will depend

on the totality of the circumstances.” State v. Mitchell, 336 N.C. 22, 34, 442 S.E.2d

24, 30 (1994). This Court has previously held that

[t]he evidence showing that defendant resided in the house,

that she was cooking dinner, and that she possessed

cocaine and materials related to the use and sale of cocaine,

is sufficient to allow conviction under G.S. 90-108(a)(7) for

maintaining a dwelling used for the keeping or selling of

controlled substances.

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STATE V. WILLIAMS

Opinion of the Court

State v. Rich, 87 N.C. App. 380, 384, 361 S.E.2d 321, 324 (1987).

Here, it is undisputed that: (1) defendant paid rent to reside at the property in

question; and (2) the following were found in defendant’s residence: 310 grams of

liquid methamphetamine; one plastic bag containing an unspecified amount of

methamphetamine; glass, plastic, and tinfoil smoking devices; a marijuana cigarette;

and rolling papers. Considered in the light most favorable to the State, this evidence

was sufficient to show that defendant possessed controlled substances and related

materials in the home for which he was a rent-paying tenant. Therefore, the State

presented substantial evidence satisfying all elements of section 90-108(a)(7), and the

trial court did not err by denying defendant’s motion to dismiss this charge. See, e.g.,

State v. Cowan, 194 N.C. App. 330, 337, 669 S.E.2d 811, 817 (2008).

Conclusion

Because defendant’s independent acts of free will purged his consent to search

from the taint of Captain Frischmann’s unlawful entry into his home, the trial court

did not err by denying defendant’s motion to suppress. Additionally, the trial court’s

instruction on aiding and abetting and denial of defendant’s motion to dismiss the

charge of maintaining a dwelling were free from error.

NO ERROR.

Judges ELMORE and GEER concur.

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STATE V. WILLIAMS

Opinion of the Court

Report per Rule 30(e).

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