IN THE SUPREME COURT OF NORTH CAROLINA
No. 329A24
Filed 14 August 2026
STATE OF NORTH CAROLINA
v.
CHARLES LEON GARMON
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 296 N.C. App. 725 (2024), finding no error in part and vacating
in part judgments entered on 4 August 2022 by Judge Keith O. Gregory in Superior
Court, Union County, and remanding the case for resentencing. On 21 March 2025,
the Supreme Court allowed the State’s petition for discretionary review. Heard in
the Supreme Court on 4 November 2025.
Jeff Jackson, Attorney General, by Zachary K. Dunn, Special Deputy Attorney
General, for the State-appellant.
Jarvis John Edgerton IV for defendant-appellee.
RIGGS, Justice.
During a traffic stop, officers found, inter alia, a bookbag with drug
paraphernalia and trafficking weights of controlled substances in Charles Garmon’s
vehicle. On 14 January 2021, Mr. Garmon was indicted for various crimes, including
keeping or maintaining a vehicle for the purpose of keeping or selling controlled
substances (“keeping or maintaining a vehicle charge”). Exactly one year prior, Mr.
STATE V. GARMON
Opinion of the Court
Garmon had been indicted for attaining habitual felon status, stemming from three
felony convictions in 2001, 2009, and 2013. Mr. Garmon moved to dismiss the keeping
or maintaining a vehicle charge, but the trial court denied his motion, and he was
convicted of trafficking in opioids by possession, trafficking in opioids by
transportation, possessing drug paraphernalia, and keeping or maintaining a vehicle
for the keeping or selling of controlled substances. He then pleaded guilty to attaining
habitual felon status.
On appeal, Mr. Garmon filed a motion for appropriate relief, claiming that his
habitual felon indictment was untimely because it was filed before he committed the
principal felonies at issue here. The Court of Appeals, bound by precedent, granted
his motion for appropriate relief. State v. Garmon, 296 N.C. App. 725, 726 (2024).
Mr. Garmon also challenged the trial court’s denial of his motion to dismiss the
keeping or maintaining a vehicle charge. The Court of Appeals’ majority held that
the trial court did not err by denying his motion to dismiss. Id. at 734. Judge
Hampson dissented, claiming that the State failed to meet its burden on whether Mr.
Garmon used the vehicle for the purpose of keeping controlled substances. Id. at 739
(Hampson, J., dissenting).
We hold that the Court of Appeals erred by granting Mr. Garmon’s motion for
appropriate relief. The plain language of the Habitual Felon Act does not prohibit
the filing of habitual felon indictments before the principal felony indictment, so Mr.
Garmon’s habitual felon indictment was not improper. We also hold that the State
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Opinion of the Court
did not present more than a scintilla of evidence that Mr. Garmon used the vehicle to
keep controlled substances, but we remand for further proceedings to determine
whether he used the vehicle to sell controlled substances. Therefore, we reverse in
part the Court of Appeals’ judgment and remand the case.
I. Factual and Procedural Background
On 12 October 2020, after receiving information from a confidential informant,
officers conducted an interdiction operation to search for a small, silver car with body
damage. An officer identified Mr. Garmon’s small, silver Hyundai car with body
damage, recognized Mr. Garmon, and initiated a traffic stop because he knew Mr.
Garmon did not have a valid driver’s license. When Mr. Garmon admitted that he
did not have a license, the officer asked Mr. Garmon to step out of the vehicle and
conducted a Terry frisk. The officer did not find any weapons but detained Mr.
Garmon while he ran a search of the vehicle’s registration1 and another officer
conducted a K9 search of the vehicle.
During the K9 search, a police dog circled the exterior of Mr. Garmon’s vehicle
and alerted at the lowered driver’s side window. The handling officer searched Mr.
Garmon’s car and found a black bookbag in the front passenger floorboard area
containing a digital scale, plastic bags (including some with the corners cut), a bag
with a leafy green substance, a bag with a crystallized substance, a bag with a white
1 The officer who stopped Mr. Garmon testified that he could not recall whether Mr.
Garmon was registered as the owner of the vehicle.
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Opinion of the Court
powdery substance, pills, a marijuana grinder, and eye drops. The officer also found
a handgun under the passenger seat, ammunition in the car, and a folded, brown
piece of paper with a white powdery substance in the center console cup holders.
While the bookbag did not contain any identifying information, several items in the
car had Mr. Garmon’s name on them, including a Social Security card, Bank of
America letter, package, and hotel receipt from the day of the search. While officers
conducted the K9 search, Mr. Garmon stated, “I got to make money somehow. That’s
all I know how to do. I know it ain’t right, but I just do it for my kids.”
Mr. Garmon was indicted for attaining habitual felon status on 14 January
2020, several months before the traffic stop. The three felonies supporting his
habitual felon indictment occurred on 23 June 2000, 21 November 2007, and 25
March 2012. He was convicted of the three felonies in 2001, 2009, and 2013.
One year later, on 14 January 2021, Mr. Garmon was indicted for trafficking
in opioids by possession in violation of N.C.G.S. § 90-95(h), trafficking in opioids by
transportation in violation of N.C.G.S. § 90-95(h), possession of drug paraphernalia
in violation of N.C.G.S. § 90-113.22, and maintaining a vehicle that was used for
keeping or selling a controlled substance in violation of N.C.G.S. § 90-108(a)(7).2 Mr.
Garmon’s trial began on 1 August 2022.
2 Mr. Garmon was also indicted for possession of a firearm by a felon, possession of
methamphetamine, and possession with intent to sell or deliver (PWISD) oxycodone on 14 January 2021. The State voluntarily dismissed the possession of methamphetamine and PWISD oxycodone charges, and the jury found Mr. Garmon not guilty of possession of a firearm by a felon.
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At trial, an expert witness from the State Crime Lab testified that the pills in
the bookbag contained fentanyl and heroin and that the powder contained fentanyl.
The crystal substance from the bookbag and the powder on the brown piece of paper
were not tested because the crime lab did not test beyond the “highest charge,” and
the other substances had already reached trafficking weight. Mr. Garmon moved to
dismiss the keeping or maintaining a vehicle charge, but the trial court denied his
motion.
The jury found Mr. Garmon guilty of trafficking in opioids by possession,
trafficking in opioids by transportation, possession of drug paraphernalia, and
keeping or maintaining a vehicle for the keeping or selling of controlled substances.
At sentencing, Mr. Garmon pleaded guilty to attaining habitual felon status. The
trial court sentenced him to seventy to ninety-three months for the trafficking in
opioids by possession, trafficking in opioids by transportation, and possession of drug
paraphernalia charges, and forty-four to sixty-five months for the keeping or
maintaining a vehicle charge, to run consecutively. Mr. Garmon entered a written
notice of appeal on 11 August 2022. He also filed a motion for appropriate relief in
the Court of Appeals on 9 February 2024, claiming that the trial court did not have
subject matter jurisdiction to enter his guilty plea to attaining habitual felon status
because his habitual felon indictment predated the traffic stop and the resulting
charges. See Garmon, 296 N.C. App. at 732–33.
The Court of Appeals held that the trial court did not err by denying Mr.
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Garmon’s motion to dismiss the keeping or maintaining a vehicle charge but held
that it was “bound by precedent” to grant Mr. Garmon’s motion for appropriate relief.
Id. at 726. The Court of Appeals thus vacated and remanded to the trial court for
resentencing. Id. at 733–35. Judge Hampson dissented and would have held that
the trial court erred in denying Mr. Garmon’s motion to dismiss because the State
failed to meet its burden that Mr. Garmon used the vehicle for the keeping of drugs.
Id. at 739 (Hampson, J., dissenting). He would have reversed Mr. Garmon’s
conviction on the keeping or maintaining a vehicle charge. Id. Mr. Garmon filed a
notice of appeal based on Judge Hampson’s dissent on 7 January 2025. The State
filed a petition for discretionary review, which we allowed on 21 March 2025.
II. Standard of Review
This Court reviews the denial of a motion to dismiss de novo and “must view
the evidence in the light most favorable to the State, giving the State the benefit of
all reasonable inferences.” State v. Calderon, 388 N.C. 700, 706 (2025) (quoting State
v. Barnes, 334 N.C. 67, 75 (1993)). When deciding a motion to dismiss, “ ‘the trial
court need determine only whether there is substantial evidence of each essential
element of the crime and that the defendant is the perpetrator.’ Substantial evidence
is that amount of relevant evidence necessary to persuade a rational juror to accept
a conclusion.” State v. Mann, 355 N.C. 294, 301 (2002) (citation omitted) (quoting
State v. Call, 349 N.C. 382, 417 (1998)). “If there is more than a scintilla of competent
evidence to support the allegations in the warrant or indictment, it is the court’s duty
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to submit the case to the jury.” State v. Horner, 248 N.C. 342, 344–45 (1958);
see also State v. Powell, 299 N.C. 95, 99 (1980).
The sufficiency of an indictment is also reviewed de novo. State v. Applewhite,
386 N.C. 431, 434 (2024); State v. Stewart, 386 N.C. 237, 240 (2024).
III. Analysis
Mr. Garmon challenged his habitual felon indictment as untimely and claimed
that the trial court erred by denying his motion to dismiss. The Court of Appeals
granted Mr. Garmon’s motion for appropriate relief and vacated his guilty plea to
attaining habitual felon status. Garmon, 296 N.C. App. at 734. We hold that the
Court of Appeals erred by granting his motion for appropriate relief and that habitual
felon indictments may be filed before principal felony indictments. The Court of
Appeals also held that the trial court did not err by denying Mr. Garmon’s motion to
dismiss the keeping or maintaining a vehicle charge. Id. at 732. We hold that the
State failed to present more than a scintilla of evidence that Mr. Garmon kept
controlled substances in the vehicle under the subsection 90-108(a)(7) definition but,
because the State may have sufficiently proved that he kept or maintained the vehicle
for the purpose of selling controlled substances, we remand for further proceedings
on the issue of whether the trial court erred in denying Mr. Garmon’s motion to
dismiss.
A. The Court of Appeals erred by granting Mr. Garmon’s motion for
appropriate relief because North Carolina statutes do not prohibit the
filing of a habitual felon indictment before the principal felony
indictment.
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If a person has been convicted of or pleaded guilty to three separate felonies,
district attorneys may, in their discretion, charge defendants with attaining habitual
felon status by filing an indictment. N.C.G.S. §§ 14-7.1, -7.3 (2025). The habitual
felon indictment must be “separate from the indictment charging him with the
principal felony” and should include the dates the prior felonies were committed, the
dates the defendant pleaded guilty to or was convicted of the prior felonies, the name
of the state in which the felonies were committed, and the court where the prior felony
proceedings occurred.3 Id. § 14-7.3. If a defendant has attained habitual felon status
and is convicted of a principal felony, he is sentenced four record levels higher than
the classification of the principal felony. N.C.G.S. § 14-7.6 (2025).
Habitual felon status is not itself a separate crime, though, and “[t]he status
itself, standing alone, will not support a criminal sentence.” State v. Allen, 292 N.C.
431, 435 (1977); see also State v. Patton, 342 N.C. 633, 635 (1996). Instead, “[t]he only
reason for establishing” habitual felon status “is to enhance the punishment which
would otherwise be appropriate for the substantive felony which he has allegedly
committed while in such a status.” Allen, 292 N.C. at 435. Because attaining
habitual felon status is not a separate crime with its own independent sentence, the
proceeding to determine whether a defendant has attained habitual felon status must
be connected to the proceeding for the principal felony, and the “habitual felon
3 “Prior felonies” refer to the three felonies required for a defendant to be indicted as
a habitual felon. “Principal felony” refers to a subsequent felony committed after the three prior felonies to which the habitual felon indictment may attach.
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[indictment] is necessarily ancillary to” the principal felony indictment. Id. at 433–
34; see also State v. Cheek, 339 N.C. 725, 727 (1995). On its own, the habitual felon
indictment imposes no independent criminal sanctions—for the defendant to be
convicted of attaining habitual felon status, proceedings must occur ancillary to
proceedings on a principal felony. There is an important distinction between a
habitual felon indictment being filed and a defendant being convicted and punished
accordingly. The only practical effect of filing the habitual felon indictment before
the defendant has committed a principal felony is to put the defendant on notice that,
if he or she commits a principal felony, the State intends to proceed on the habitual
felon enhancement.
Mr. Garmon challenged his habitual felon indictment because it was filed
exactly one year before he was indicted on any charges stemming from the traffic stop
and nearly ten months before the traffic stop occurred. The Court of Appeals, bound
by the decision of a prior panel in State v. Ross, 221 N.C. App. 185 (2012), granted his
motion for appropriate relief and vacated his habitual felon plea. Garmon, 296 N.C.
App. at 733–34.
In Ross, the defendant was indicted for attaining habitual felon status on 22
September 2008, with a superseding habitual felon indictment filed on 11 May 2009.
221 N.C. App. at 186. The indictment was explicitly connected to pending charges
for possession of a firearm by a felon. Id. (charging that defendant “did commit the
felony of Possession of a Firearm by Felon . . . while being an habitual felon”
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(alteration in original)). Then, on 20 June 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. The charges stemmed from the defendant’s 17 and 18 June 2009
trial on drug charges unrelated to either indictment. Id. at 186–87. At trial, his
attorney moved to dismiss all pending uncalendared charges and “the prosecutor
admitted that the habitual felon indictment was not calendared.” Id. at 187 (cleaned
up). However, while the trial court initially decided not to proceed on the habitual
felon indictment, it ultimately determined the habitual felon indictment was
ancillary to the bribery charges. Id. The defendant pleaded guilty to attaining
habitual felon status, and the trial court sentenced him as a habitual felon. Id.
The Ross defendant argued that because the habitual felon indictment was
filed before the bribery crimes occurred, the trial court lacked jurisdiction to accept
his guilty plea to attaining habitual felon status. Id. at 188. The Court of Appeals
agreed and held that the habitual felon indictment could not have been ancillary to
the bribery indictments because they “had not yet occurred when the habitual felon
indictment was returned.” Id. at 192 (citing State v. Flint, 199 N.C. App. 709, 718
(2009)). The Court of Appeals vacated the defendant’s habitual felon guilty plea and
remanded for resentencing. Id.
However, the plain text of the Habitual Felon Act, N.C.G.S. §§ 14-7.1 to -7.6
(2025), does not support a requirement that the habitual felon indictment must follow
an indictment for a principal felony. “Where the language of a statute is clear and
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unambiguous, there is no room for judicial construction and the courts must construe
the statute using its plain meaning.” Burgess v. Your House of Raleigh, 326 N.C. 205,
209 (1990). This Court has “consistent[ly] refus[ed] to engraft additional unnecessary
burdens upon the due administration of justice.” State v. Langley, 371 N.C. 389, 392–
93 (2018) (cleaned up) (citing State v. Freeman, 314 N.C. 432, 436 (1985)).
The provision of the Habitual Felon Act describing indictment requirements
states:
The district attorney, in his or her discretion, may
charge a person as a habitual felon pursuant to this Article.
An indictment which charges a person who is an habitual
felon within the meaning of G.S. 14-7.1 with the
commission of any felony under the laws of the State of
North Carolina must, in order to sustain a conviction of
habitual felon, also charge that said person is an habitual
felon. The indictment charging the defendant as an
habitual felon shall be separate from the indictment
charging him with the principal felony.
N.C.G.S. § 14-7.3. Nothing in the statute requires specific timing for either the
habitual felon indictment or the principal felony indictment. The two indictments
must be separate, but the State need not wait for a principal felony indictment to file
a habitual felon indictment. In fact, since all that is required to indict a defendant
for attaining habitual felon status is his or her conviction for three separate felony
offenses, the indictment could logically come at any time after the third felony
conviction and is not dependent on when the fourth felony offense is charged. The
plain language of the Habitual Felon Act does not prohibit the filing of a habitual
felon indictment before a defendant is indicted for a principal felony.
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Further, since “[n]othing in the plain wording of N.C.G.S. § 14-7.3 requires a
specific reference to the predicate substantive felony in the habitual felon
indictment,” the habitual felon indictment does not need to follow the principal felony
indictment in order to meet all statutory requirements. Cheek, 339 N.C. at 728; see
also Patton, 342 N.C. at 636. The habitual felon indictment need only include (1) the
dates of the prior felony offenses, (2) the state of the prior felonies, (3) the dates
defendant pleaded guilty to or was convicted of the prior felonies, and (4) the court
where the convictions occurred. N.C.G.S. § 14-7.3. All the statutory requirements of
the habitual felon indictment depend on the prior felonies, not the principal felony.
The plain language of the statute does not indicate that the habitual felon indictment
must follow the principal felony indictment. In the absence of such a statutory
indication, it would be improper to impose an atextual requirement that the habitual
felon indictment follow the principal felony indictment. See Burgess, 326 N.C. at 209;
Langley, 371 N.C. at 392–93.
Our caselaw imposes procedural safeguards against problematic habitual felon
proceedings detached from a principal felony, whether the indictment is filed before
or after the principal felony indictment.4 Since attaining habitual felon status is not
a separate crime, even if a habitual felon indictment is filed before a principal felony
indictment, the State cannot independently proceed on the habitual felon indictment
4 From the record, we do not discern any suggestion that the filing of the habitual
felon indictment here or in any other case is intended as or represents an abuse of process.
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until the defendant is prosecuted for a principal felony. See Cheek, 339 N.C. at 727;
Allen, 292 N.C. at 433–34. And if a habitual felon indictment is filed before a
defendant has committed a principal felony, the defense attorney may move to
dismiss the indictment. See N.C.G.S. § 15A-954(a) (2025). If a defendant who has
been indicted for attaining habitual felon status does not commit subsequent felonies,
or if the indictment is dismissed, filing a habitual felon indictment does not
independently create a criminal cause of action or impose criminal sanctions.
See Cheek, 339 N.C. at 727; Allen, 292 N.C. at 433–34; Patton, 342 N.C. at 635. The
habitual felon indictment does not establish an independent cause of action to try a
defendant for attaining habitual felon status. Instead, the indictment puts the
defendant on notice that, if they commit a fourth felony offense, the State will proceed
on the habitual felon indictment and, if convicted, the defendant could be sentenced
as a habitual felon.
A “basic purpose behind our Habitual Felons Act is to provide notice to
defendant that he is being prosecuted for some substantive felony as a recidivist.”
Allen, 292 N.C. at 436 (emphasis omitted); see also Patton, 342 N.C. at 636. The
notice required for a habitual felon charge is not necessarily the same as for other
charges. “[A] defendant charged as a habitual felon is not defending himself against
the predicate substantive felony, but against a charge that he has at least three prior
felony convictions,” so the indictment must give notice that “he is being tried as a
recidivist to enable him to prepare an adequate defense to that charge.” Cheek, 339
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N.C. at 729. While the State may file a superseding habitual felon indictment after
the principal felony indictment to link the ancillary habitual felon charge to the
principal felony, nothing in the plain language of the Habitual Felon Act prohibits
the State from filing the habitual felon indictment before the principal felony
indictment or requires that the habitual felon indictment be filed after the principal
felony indictment.
Here, Mr. Garmon’s habitual felon indictment was filed on 14 January 2020,
ten months before the traffic stop and one year before he was indicted on the principal
felony charges. Mr. Garmon’s habitual felon indictment was not defective because it
satisfied the four requirements in N.C.G.S. § 14-7.3 and the Habitual Felon Act does
not require habitual felon indictments to follow principal felony indictments.
Further, Mr. Garmon pleaded guilty to attaining habitual felon status in the same
proceeding as the principal felony, so the fact that the indictment was filed before the
principal felony occurred did not impose an improper independent sanction on Mr.
Garmon. The Court of Appeals erred in holding that a habitual felon indictment must
be filed after a principal felony has occurred and therefore erred in granting Mr.
Garmon’s motion for appropriate relief.
B. The State failed to provide sufficient evidence that Mr. Garmon kept or
maintained the vehicle for the keeping of controlled substances, but we
remand to the Court of Appeals to consider whether the State provided
sufficient evidence that he used the vehicle for the selling of controlled
substances.
In North Carolina, it is a crime to “knowingly keep or maintain any . . .
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vehicle . . . which is used for the keeping or selling of [controlled substances].”
N.C.G.S. § 90-108(a)(7) (2025). The State must prove that the defendant
“(1) knowingly (2) kept or maintained (3) a vehicle (4) which was used for the keeping
or selling (5) of controlled substances.” State v. Rogers, 371 N.C. 397, 401 (2018)
(cleaned up). Mr. Garmon challenges whether the State adequately proved element
four: that he used the vehicle to keep or sell controlled substances.5
The word “keep” in N.C.G.S. § 90-108(a)(7) has different definitions under
elements two and four. Under element two, it may be defined as “possessing
something for at least a short period of time—or intending to retain possession of
something in the future—for a certain use.” Id. at 402. We have previously held that
a defendant “kept” a vehicle under element two where officers observed the defendant
as the only person in the vehicle and evidence was recovered from the vehicle with a
date and the defendant’s name. See id. at 402–03.
However, as applied to element four, keeping controlled substances, “[w]hen
someone ‘keep[s]’ an object in his car, that word does not refer to possessing
something for a designated use; it refers to storing that object in his car. That is the
‘common and ordinary meaning’ of the word ‘keeping’ in this context.” Id. (alteration
in original) (quoting In re Clayton-Marcus Co., 286 N.C. 215, 219 (1974)). “When
subsection 90-108(a)(7) speaks of ‘the keeping . . . of’ drugs, it is referring to the
5 Both elements two and four were at issue at the Court of Appeals, but because the
dissent only addressed element four, Mr. Garmon’s notice of appeal does not extend to reach element two. Garmon, 296 N.C. App. at 735 (Hampson, J., dissenting).
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storing of drugs.” Id. The defendant does not need to store drugs for a minimum time
period, but it is also not sufficient for him to “merely hav[e] drugs in a car.” Id. at
406.
The keeping or maintaining a vehicle charge is distinct from a possession
charge; “we do not believe that our legislature intended to create a separate crime
simply because the controlled substance was temporarily in a vehicle.” State v.
Mitchell, 336 N.C. 22, 33 (1994). Possessing a controlled substance on one occasion
in the vehicle does not prove that the vehicle is used to keep that controlled substance.
Id. Instead, the “focus of the inquiry is on the use, not the contents, of the vehicle,”
with the use determined based on the totality of the circumstances. Id. at 34
(emphasis omitted). Therefore, the key question is, under the totality of the
circumstances, “whether the defendant was using that vehicle . . . for the storing of
drugs.” Rogers, 371 N.C. at 406.
In Rogers, the defendant was convicted of keeping or maintaining a vehicle for
the purpose of keeping or selling a controlled substance when officers found two bags
of crack cocaine concealed behind the door to the car’s gas cap compartment. Id. at
399–401. This Court held that the State provided sufficient evidence that the
defendant used the vehicle to store the drugs. Id. at 403. There, officers observed
the defendant stop the car, enter a hotel, and remain there for forty-five minutes
without accessing the drugs, which indicated that he used the vehicle for more than
merely transporting the drugs. Id. at 403–04. Further, the gas cap compartment
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was accessible only with a switch inside of the car, and officers did not observe any
other person access the compartment or vehicle. Id. at 403. And while it was not
determinative, this Court found it persuasive that the drugs were concealed and “in
a place that is somewhat hard to access—and that is not inside the passenger
compartment of the car at all” because “a defendant who wants to store contraband
will, all other things equal, want to store it in a hidden place.” Id. at 404. Under the
totality of the circumstances, the evidence was sufficient to support the defendant’s
conviction. Id. at 406.
In contrast, in Mitchell, evidence at trial tended to prove that the defendant
had possessed marijuana in his vehicle but not that his vehicle was used to keep or
sell a controlled substance under subsection 90-108(a)(7). 336 N.C. at 32–33. There,
police found a marijuana cigarette in the defendant’s car, knew the defendant
possessed two bags of marijuana while in the car, and subsequently found drug
paraphernalia in his home. Id. at 25–26. This Court held that the evidence of drugs
in his car was sufficient “for a jury reasonably to infer that defendant possessed the
marijuana while he was in his vehicle,” but was insufficient to prove that the
defendant used his vehicle to keep or sell a controlled substance. Id. at 32–33. “At
most, the State ha[d] shown that . . . defendant possessed marijuana while in his car
and that on the following day his car contained a marijuana cigarette.” Id. at 33.
“This evidence raise[d] at most only a suspicion that defendant’s car was used for
either keeping or selling marijuana.” Id. Because “[t]he focus of the inquiry is on the
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use, not the contents, of the vehicle,” the mere possession of controlled substances in
the vehicle was not enough for the State to meet its burden to prove that the
defendant used his vehicle to keep or sell controlled substances. Id. at 34 (emphasis
in original).
Here, the totality of the circumstances surrounding Mr. Garmon’s possession
of the drugs more closely tracks those in Mitchell than those in Rogers. Mr. Garmon
clearly possessed controlled substances in his vehicle but, like the defendant in
Mitchell, the State failed to produce evidence that he used the vehicle to store the
drugs. See 336 N.C. at 32–33. In Rogers, this Court determined that the drugs’
inaccessibility and concealment indicated more than mere possession. 371 N.C. at
403–04. Here, though, the drugs and paraphernalia were accessible in a bookbag in
the passenger compartment of the vehicle, not concealed or otherwise made
inaccessible. The bookbag was by nature entirely self-contained and meant to
facilitate transportation—the opposite of the definition of “keeping” under subsection
90-108(a)(7). See id. at 403. Mr. Garmon’s bookbag was like the defendant’s pocket
in Mitchell, not the gas cap compartment in Rogers. While concealment and
inaccessibility are not necessarily determinative, the facts here indicate only
possession and do not establish that Mr. Garmon kept controlled substances in the
vehicle under the subsection 90-108(a)(7) definition. Mr. Garmon clearly possessed
drugs in the vehicle, but the transitory nature of the bookbag and its location in the
easily-accessible passenger compartment of the vehicle are inconsistent under our
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caselaw with a conclusion that he stored the drugs in the car.
Instead, the drugs in the bookbag, in plain view and within arm’s reach of Mr.
Garmon, indicate only possession. Like in Mitchell, mere possession in the vehicle
does not satisfy the State’s burden. See 336 N.C. at 32–33. The State failed to present
more than a scintilla of evidence to prove that Mr. Garmon kept or maintained the
vehicle for the purpose of keeping controlled substances. Although the standard for
the State to survive a motion to dismiss represents a low bar, the requirement to put
on substantial evidence is not so low as to negate any meaningful review. Even with
all reasonable inferences made in favor of the State, the evidence here cannot
reasonably support that Mr. Garmon kept his vehicle to store drugs.
However, element four asks whether the defendant kept or maintained the
vehicle for the keeping or selling of controlled substances. Rogers, 371 N.C. at 401.
Even though there is insufficient evidence to prove that Mr. Garmon kept his vehicle
for the purpose of keeping controlled substances, taking all facts in the light most
favorable to the State, there may be adequate evidence to support that Mr. Garmon
kept or maintained his vehicle for the purpose of selling controlled substances.
Because we are limited to review this issue only as an appeal of right based on dissent
under N.C.G.S. § 7A-30(2), and the dissent discussed only whether the State satisfied
its burden that Mr. Garmon used the vehicle to keep controlled substances, not to sell
them, we remand to the Court of Appeals for consideration of whether the State met
its burden to prove that Mr. Garmon used his vehicle to sell controlled substances
-19-STATE V. GARMON
Opinion of the Court
under N.C.G.S. § 90-108(a)(7).
IV. Conclusion
The Court of Appeals erred in granting Mr. Garmon’s motion for appropriate
relief. Therefore, we reverse the Court of Appeals’ judgment as to Mr. Garmon’s
habitual felon indictment. The State failed to present more than a scintilla of
evidence that Mr. Garmon used his vehicle to keep controlled substances, but it is not
clear whether the State met its burden as to whether Mr. Garmon used the vehicle to
sell controlled substances. Therefore, we remand to the Court of Appeals for further
proceedings on whether the trial court erred in denying Mr. Garmon’s motion to
dismiss.
REVERSED IN PART AND REMANDED.
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Newby, C.J., concurring in part and dissenting in part
Chief Justice NEWBY concurring in part and dissenting in part.
I join the majority in concluding that the timing of the indictment did not affect
the trial court’s subject matter jurisdiction to sentence defendant as a habitual felon.
I disagree, however, with the majority’s decision to remand the
sufficiency-of-the-evidence question regarding whether defendant kept or maintained
the vehicle to sell drugs. In my view, that question is properly before us and easily
resolved. I respectfully concur in part and dissent in part.
“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. Garmon, 296 N.C. App. 725, 728, 909 S.E.2d 768, 772 (2024)
(emphasis added) (citing State v. Rogers, 371 N.C. 397, 401, 817 S.E.2d 150, 153
(2018)). Here, as the majority points out, only the fourth element is before this Court.
The trial court instructed the jury, albeit erroneously, that it should find that
defendant violated N.C.G.S. § 90-108(a)(7) if the State proved “beyond a reasonable
doubt that . . . defendant knowingly kept and maintained a vehicle . . . which was
used for the purpose of unlawfully keeping and selling a controlled substance.”
(Emphasis added.) This instruction was erroneous because the trial court replaced
“keeping or selling controlled substances” in subsection 90-108(a)(7) with “keeping
and selling controlled substances.” Neither defendant nor the State objected to this
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Newby, C.J., concurring in part and dissenting in part
mistake despite having ample opportunity to do so. Indeed, when the trial court read
its proposed instructions to the parties during the charge conference, it used the
phrase “keeping and selling” eight times. After evaluating the facts under these
erroneously stringent instructions, the jury found defendant guilty of violating
subsection 90-108(a)(7).
“A jury is presumed to follow the instructions given by the trial court.” State v.
Chambers, 387 N.C. 521, 527, 915 S.E.2d 96, 100 (2025) (citing State v. Prevatte, 356
N.C. 178, 254, 570 S.E.2d 440, 482 (2002)). Necessarily, then, the jury must have
found beyond a reasonable doubt that defendant kept or maintained the car to sell
drugs. The question becomes whether the record contains substantial evidence to
support that finding.
“For a criminal prosecution to survive a motion to dismiss, the State must
present ‘substantial evidence of all the material elements of the offense
charged . . . .’ ” Rogers, 371 N.C. at 401, 817 S.E.2d at 153 (quoting State v. Campbell,
368 N.C. 83, 87, 772 S.E.2d 440, 444 (2015)). Substantial evidence is “the amount [of
evidence] necessary to persuade a rational juror to accept a conclusion.” State v.
Golder, 374 N.C. 238, 249, 839 S.E.2d 782, 790 (2020). “[E]vidence is deemed less
than substantial [only] if it raises no more than mere suspicion or conjecture as to the
defendant’s guilt.” State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139–40 (2002).
“In reviewing challenges to the sufficiency of evidence, we must view the
evidence in the light most favorable to the State, giving the State the benefit of all
-22-STATE V. GARMON
Newby, C.J., concurring in part and dissenting in part
reasonable inferences.” State v. Fritsch, 351 N.C. 373, 378–79, 526 S.E.2d 451, 455
(2000). As a “general rule,” if “any evidence tends to prove the fact in issue” or
“reasonably conduces to its conclusion as a fairly logical and legitimate
deduction, . . . the case should be submitted to the jury.” State v. Blagg, 377 N.C. 482,
488, 858 S.E.2d 268, 273 (2021) (citation modified). “[I]n borderline or close cases, our
courts have consistently expressed a preference for submitting issues to the jury.”
State v. Weldy, 271 N.C. App. 788, 803, 844 S.E.2d 357, 368 (2020) (Berger, J.,
dissenting) (quoting State v. Coley, 257 N.C. App. 780, 789, 810 S.E.2d 359, 365
(2018)).
Here, based facially on the record and the facts presented in the majority
opinion, the sufficiency-of-the-evidence standard is easily met as to whether
defendant kept or maintained a vehicle to sell drugs. The evidence presented at trial
tended to show that pursuant to a lawful search of a car driven by defendant, law
enforcement found a backpack on the passenger-side floorboard. The bag contained,
inter alia, a digital scale, a marijuana grinder, plastic bags, and several plastic
baggies filled with different substances, later determined to be fentanyl, heroin, and
marijuana. Elsewhere in the car, officers recovered a handgun and ammunition, and
multiple documents—like a hotel receipt and Social Security card—bearing
defendant’s name. During the search, defendant told officers: “I got to make money
somehow. That’s all I know how to do. I know it ain’t right, but I just do it for my
kids.” This is more than enough evidence to survive a motion to dismiss and permitted
-23-STATE V. GARMON
Newby, C.J., concurring in part and dissenting in part
the jury to unanimously find that defendant kept or maintained the car to sell
controlled substances.
Thus, the matter is easily resolved. The trial court was correct in denying the
motion to dismiss the subsection 90-108(a)(7) charge. The Court of Appeals decision
upholding the trial court’s order should be affirmed. I respectfully concur in part and
dissent in part.
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