North Carolina Criminal Law: Two Marijuana-related Convictions Reversed by Court of Appeals

Posted by Sean P. CecilJan 20, 20160 Comments

Criminal convictions make for difficult appeals. Whereas at trial a criminal defendant is supposed to receive the benefit of the doubt, after conviction many of those presumptions evaporate. Drug conviction appeals typically focus on 4th Amendment privacy protections, challenging convictions that were based on evidence the defendant unsuccessfully moved to suppressed because it was discovered by law enforcement only through an unconstitutional intrusion. Criminal appeals challenging the sufficiency of evidence used to convict are even more difficult- basically asking a court to overrule a finding of guilt by the jury by ruling that the evidence presented at trial was not enough to support the conviction, even when viewed in the light most favorable to the state. 

This week the NC Court of Appeals made just that sort of ruling, finding that various evidence was insufficient to support convictions for separate counts of maintaining a dwelling and maintaining a vehicle for drug activity, and reversing the convictions. The case, North Carolina v. McKinnon, involved a fairly significant amount of cannabis (marijuana) discovered in a vehicle driven by Mr. McKinnon's alleged accomplice, Evers, during a traffic stop following a snitch's tip. McKinnon was pulled over during the same stop in a different vehicle. After the arrest, law enforcement took the two back to the house Evers had left prior to the traffic stop. Officers entered the home (details of this warrantless entry were not discussed in the Court's opinion) and exited to get a search warrant after discovering two large black duffel bags that smelled strongly of marijuana. While executing the search warrant the cops found a community college enrollment application with McKinnon's name on it and a W-2 tax form in the kitchen, both of which listed McKinnon's address as elsewhere. In addition to other controlled substance related crimes, McKinnon was accused of two counts of violating N.C.G.S. 90-108(7) which generally prohibits maintaining a vehicle or building for the illicit use or sales of controlled substances.

 To prove the crime of maintaining, the state must establish (beyond a reasonable doubt) that the defendant:

(1)  knowingly

(2)  kept or maintained

(3)  a store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or other place

   (a) being resorted to by persons unlawfully using controlled substances or

   (b) being used for unlawfully keeping or selling controlled substances.

He was convicted of both counts, one for the vehicle Evers was driving, and the other for the house where most of the weed was found. He appealed the trial court's denial of his motion to dismiss the maintaining a vehicle and dwelling charges and the court's written sentence that was different from the one announced in his presence.

The Court first dealt with the maintaining a vehicle charge, citing case law that requires proof a vehicle's use for drug purposes occurred over a duration of time or that the defendant had used the vehicle on a prior occasion to sell drugs. The Court noted that the only evidence supporting the conviction was that McKinnon placed a bag in the vehicle and a short time later the bag was found to contain marijuana. Even in the light most favorable to the State, the Court ruled that the evidence only showed MCkinnon possessed marijuana in the vehicle on a single occasion, and vacated the judgment of guilt. (When an appellate court rules that trial evidence is insufficient and reverses a conviction, the reversal is final and the State does not get to retry the defendant with more evidence, because Double Jeopardy prohibits a retrial.)

The Appellate Court then turned to the maintaining a dwelling conviction, citing the following as the entire evidence in support of the conviction: 

(1) his presence in the home on a single day, 24 September 2011;

(2) the presence in the home of a W-2 and a college application belonging to McKinnon, both of which listed his address at another location;

(3) McKinnon's possession of a key which unlocked the front door of the home; and

(4) the presence in the home of a man's clothing and a laptop computer, neither of which was linked to McKinnon. 

The evidence at trial was that the home was rented in the name of a third party, and no evidence was offered to establish who was responsible for the payment of utility costs, taxes, repairs, or maintenance of the home.  Although the jury did receive an instruction regarding the State's theory that McKinnon was acting in concert with Evers, the Appellate Court found that the trial evidence linking Evers to the home was also insufficient to support the charge. Again, the court found the evidence insufficient to support the jury's finding of guilt, and reversed the judgment, effectively dismissing the charge of maintaining a dwelling. 

 I have written many times that the so-called "War on Drugs" is an abject failure. It treats as criminal conditions that should be treated medically, costs boatloads of money for enforcement and incarceration, and destroys communities. I have a particular interest in defending drug-related criminal allegations throughout the State of North Carolina, and provide free consultations for any criminal defendant or subject of a criminal investigation.