Maintaining a dwelling for purposes of keeping or selling drugs

If you have been charged with Maintaining a Dwelling in Charlotte, you need the counsel of a knowledgeable and experienced criminal defense lawyer who is dedicated to achieving the best result possible.  A knowledgeable and experienced criminal defense attorney knows what the State must prove and the consequences of a conviction of Maintaining a Dwelling.  David Q. Burgess, who is available for a free consultation at (704) 377-9800 in Charlotte, is a dedicated, knowledgeable, and experienced criminal defense lawyer who knows what the State must prove and the consequences of a conviction of Maintaining a Dwelling.

Maintaining a Dwelling may be a misdemeanor or a felony.  It is a misdemeanor when the dwelling is knowingly maintained and a felony when it is intentionally maintained.

In order to prove Maintaining a Dwelling, the prosecution must show that the defendant maintained a dwelling for the purpose of keeping or selling drugs.  A “dwelling” includes “any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever.”

To prove that the defendant maintained the dwelling, a pivotal factor is whether there is evidence that defendant owned, leased, maintained, or was otherwise responsible for the premises.  Whether a person maintains a dwelling requires the consideration of several factors, none of which are dispositive.  Those factors include: ownership of the property; occupancy of the property; repairs to the property; payment of taxes; payment of utility expenses; payment of repair expenses; and payment of rent.  Occupancy, without more, will not support the element of maintaining a dwelling

Examples of cases where the court found the evidence was insufficient to support the finding that the defendant maintained a dwelling include the following.  The evidence was found insufficient where the defendant was seen at the house several times over a period of two months, an officer had spoken to defendant there twice during that time, and personal property of defendant was found in a bedroom but there was no evidence that defendant owned the property, bore any expense of renting or maintain the property, or took any other responsibility for the property. In another case, the evidence was found insufficient where the sole evidence tying defendant to address was a traffic citation with defendants name on it, listing his address as the address in question.  Finally, the evidence was found insufficient where the defendant had been seen frequenting a residence and that a closet in the residence contained men’s clothing because no evidence indicated that defendants name was on lease or utility bills, or that he was in any way responsible for dwelling’s upkeep.

To prove that the defendant was keeping drugs in the dwelling the prosecution must show more than just possession.  Instead, the prosecution must prove that the possession occurred over a duration of time.  Thus, for example, the fact that an individual within a vehicle possesses marijuana on one occasion cannot establish the vehicle is used for keeping marijuana nor can one marijuana cigarette found within the car establish that element.

Possession may be either actual or constructive.  Actual possession is where a person has it on his person.  Constructive possession exists where the person does not have it on his person but is aware of its presence and has both the power and intent to control its disposition or use.  More than one person may have the power and intent to control its disposition so that one or more persons may have constructive possession of the drugs.

A person’s awareness of the presence of the drugs and his power and intent to control its disposition or use may be shown by circumstantial evidence alone.  However, that the drugs were found in close physical proximity to the person is not, by itself, enough to show that the person was aware of its presence or had the power or intent to control its disposition or use.  Instead, there must be additional circumstances to show that the person was aware of its presence or had the power or intent to control its disposition or use.  For example, if the drugs were found in a house or a vehicle and that the person exercised control over the house or the car, that would be an additional circumstance from which it could be shown that he was aware of the presence of the methamphetamine and had the power and intent to control its disposition or use.

To prove that the defendant was selling drugs from the dwelling, the fact that the 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.  Instead, the selling must occur over a duration of time.

If you have been charged with Maintaining a Dwelling in Charlotte, call David Q. Burgess for a free consultation at (704) 377-9800 in Charlotte.