{ "id": 11239742, "name": "STATE OF NORTH CAROLINA v. REGINALD SHERWOOD GRADY", "name_abbreviation": "State v. Grady", "decision_date": "2000-01-18", "docket_number": "No. COA98-1192", "first_page": "394", "last_page": "400", "citations": [ { "type": "official", "cite": "136 N.C. App. 394" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "740 A.2d 81", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 211968 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/md-app/129/0051-01" ] }, { "cite": "82 Cal. Rptr. 2d 128", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "894 P.2d 672", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10346678 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/p2d/894/0672-01" ] }, { "cite": "375 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "conspiracy continues until conspiracy is accomplished or abandoned" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527326 ], "year": 1989, "pin_cites": [ { "parenthetical": "conspiracy continues until conspiracy is accomplished or abandoned" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0523-01" ] }, { "cite": "492 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "kid-naping is single continuing offense, lasting from time of initial confinement until victim regains free will" }, { "page": "51" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798773 ], "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "kid-naping is single continuing offense, lasting from time of initial confinement until victim regains free will" }, { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0565-01" ] }, { "cite": "194 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "illegal possession is a continuing offense beginning at receipt and continuing until divestment" } ], "opinion_index": 0 }, { "cite": "302 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565719 ], "year": 1981, "pin_cites": [ { "parenthetical": "illegal possession is a continuing offense beginning at receipt and continuing until divestment" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0370-01" ] }, { "cite": "194 S.E. 319", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "212 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615300 ], "weight": 2, "year": 1937, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0566-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "400 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542714 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0139-01" ] }, { "cite": "388 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "629" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521158 ], "year": 1990, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0363-01" ] }, { "cite": "381 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "95 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519444 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/95/0056-01" ] }, { "cite": "442 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "29-30" } ], "opinion_index": 0 }, { "cite": "336 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538166 ], "year": 1994, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0022-01" ] }, { "cite": "331 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "666", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "314 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4688200 ], "year": 1985, "pin_cites": [ { "page": "102", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0099-01" ] }, { "cite": "607 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 3762197 ], "year": 1998, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/ga/278/0823-01" ] }, { "cite": "131 N.C. App. 406", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200547 ], "year": 1998, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0406-01" ] }, { "cite": "374 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "875-76" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527052 ], "year": 1988, "pin_cites": [ { "page": "401-02" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0398-01" ] }, { "cite": "389 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521736 ], "year": 1990, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0472-01" ] }, { "cite": "483 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54143 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0749-01" ] }, { "cite": "473 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913311 ], "year": 1996, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0361-01" ] }, { "cite": "370 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "276", "parenthetical": "holding that \" 'variance between the allegations in the indictment and [the] proof at trial,' [is] not fatal[] so long as the location of the offense is not an element of the crime\"" }, { "page": "277", "parenthetical": "stating that although the breaking and entering of a dwelling house constitute elements of first-degree burglary, \"location of the offense\" is not an element of that crime" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526020 ], "year": 1988, "pin_cites": [ { "page": "708", "parenthetical": "holding that \" 'variance between the allegations in the indictment and [the] proof at trial,' [is] not fatal[] so long as the location of the offense is not an element of the crime\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0705-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-108", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "(a)(7)", "parenthetical": "emphasis added" }, { "page": "(a)(7)" } ], "opinion_index": 0 }, { "cite": "293 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "642" }, { "page": "642" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524975 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "354" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0348-01" ] }, { "cite": "510 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132189 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0056-01" ] }, { "cite": "502 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11464900 ], "year": 1998, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0001-01" ] }, { "cite": "291 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "817", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525186 ], "year": 1982, "pin_cites": [ { "page": "551", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0548-01" ] }, { "cite": "240 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "478", "parenthetical": "emphasis added" }, { "page": "478" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547131 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "58", "parenthetical": "emphasis added" }, { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0053-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "weight": 4, "year": 1967, "pin_cites": [ { "page": "744" }, { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] } ], "analysis": { "cardinality": 823, "char_count": 15908, "ocr_confidence": 0.765, "pagerank": { "raw": 3.5382615187709346e-07, "percentile": 0.8846674072503841 }, "sha256": "993bd019125a25409e1f19c6eb1fbab5813bc0fac56efe89e3e875a166ccea81", "simhash": "1:8179d1ea6e4dbe5d", "word_count": 2595 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. REGINALD SHERWOOD GRADY" ], "opinions": [ { "text": "EDMUNDS, Judge.\nDefendant appeals judgments entered upon convictions by a jury of trafficking in cocaine by possession; trafficking in cocaine by selling; and two counts respectively of possession with intent to sell and deliver a controlled substance, sale of a controlled substance, and keeping and maintaining a dwelling for the use of a controlled substance (maintaining a dwelling). While the record on appeal contains nine assignments of error, defendant\u2019s counsel has advanced but one in his appellate brief, see N.C. R. App. R 28(a), (b)(5) (assignments of error not set forth in appellant\u2019s brief deemed abandoned), requesting this Court to otherwise conduct an independent review pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), for possible prejudicial error. For reasons set out in detail below, we elect to exercise our discretion and consider this appeal pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. N.C. R. App. P. 2 (\u201c[t]o prevent manifest injustice to a party . . . appellate [court] may . . . suspend or vary the requirements ... of any of [the appellate] rules\u201d).\nThe State\u2019s evidence at trial showed the following: On 22 July 1997, Officer Donald Richard-Smith (Officer Richard-Smith) of the Wilson Police Department, was assigned to work undercover operations with the Goldsboro-Wayne County Drug Squad. Officer Richard-Smith accompanied a confidential informant to a trailer at 929 Dollard Town Road in Goldsboro and purchased eight pieces of crack cocaine from a man named \u201cReggie,\u201d identified as defendant, for $200.00. Officer Richard-Smith subsequently purchased crack cocaine from defendant at the same address on 14 August 1997 and 22 August 1997. A certified forensic chemist determined the weight of the cocaine purchased on the three occasions respectively to be 1.8 grams, 12.7 grams, and 37.6 grams.\nDefendant was convicted on all charges and sentenced to consecutive prison terms of thirty-five to forty-two months on each trafficking offense, eleven to fourteen months on each possession and sale offense, and eight to ten months on each maintaining a dwelling offense. Defendant timely appealed.\nIn his single argument asserting error, counsel for defendant contends the trial court improperly allowed the State to amend Count III of the indictment. The indictment erroneously alleged in Count III that the address of the dwelling where controlled substances were maintained was \u201c919 Dollard Town Road,\u201d when the correct address was \u201c929 Dollard Town Road,\u201d as recited in Count VIII of the indictment. Over defendant\u2019s objection, the trial court permitted Count III to be amended to reflect the correct address of 929 Dollard Town Road. We conclude the trial court committed no prejudicial error in its ruling.\n\u201cA bill of indictment may not be amended,\u201d N.C. Gen. Stat. \u00a7 15A-923(e) (1999), and is considered to have been amended if there is \u201cany change in the indictment which would substantially alter the charge set forth in the indictment,\u201d State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478 (1978) (emphasis added). Thus, while \u201c \u2018the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense,\u2019 \u201d State v. Simmons, 57 N.C. App. 548, 551, 291 S.E.2d 815, 817 (1982) (citation omitted), a non-essential variance is not fatal to the charged offense, see State v. Qualls, 130 N.C. App. 1, 8, 502 S.E.2d 31, 36 (1998), aff\u2019d, 350 N.C. 56, 510 S.E.2d 376 (1999). Moreover, if an indictment contains an averment unnecessary to charge the offense, such averment may be disregarded as inconsequential sur-plusage. See State v. Lewis, 58 N.C. App. 348, 354, 293 S.E.2d 638, 642 (1982).\nSection 90-108 provides that it shall be unlawful for any person\n[t]o knowingly keep or maintain any store, shop, warehouse, dwelling house, building ... or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article [.]\nN.C. Gen. Stat. \u00a7 90-108(a)(7) (1997) (emphasis added).\nWe first observe that specific designation of the address of the dwelling at issue was unnecessary to set out the offense of maintaining a dwelling in either Count III or Count VIII of the instant indictment. See State v. Ruffin, 90 N.C. App. 705, 708, 370 S.E.2d 275, 276 (1988) (holding that \u201c \u2018variance between the allegations in the indictment and [the] proof at trial,\u2019 [is] not fatal[] so long as the location of the offense is not an element of the crime\u201d) (citation omitted). The statutory recitation of the elements of maintaining a dwelling contains no provision requiring delineation of the location of the dwelling as an element of the offense. See id. at 708, 370 S.E.2d at 277 (stating that although the breaking and entering of a dwelling house constitute elements of first-degree burglary, \u201clocation of the offense\u201d is not an element of that crime). The amendment allowed by the trial court thus did not affect an averment necessary to charge the offense of maintaining a dwelling, see Lewis, 58 N.C. App. at 354, 293 S.E.2d at 642, and did not \u201csubstantially alter the charge set forth in the indictment,\u201d Carrington, 35 N.C. App. at 58, 240 S.E.2d at 478.\nFurther, defendant could not have been misled or surprised as to the nature of the charges against him by substitution in Count III of the indictment of 929 Dollard Town Road for 919 Dollard Town Road where Count VIII in the same indictment correctly designated 929 Dollard Town Road. By means of the amendment prior to the presentation of any evidence, defendant was accorded sufficient notice of the typographical error in Count III and of the proper address to be alleged therein. See State v. Sisk, 123 N.C. App. 361, 365, 473 S.E.2d 348, 351 (1996), aff\u2019d in part, review dismissed in part, 345 N.C. 749, 483 S.E.2d 440 (1997); State v. Bailey, 97 N.C. App. 472, 475-76, 389 S.E.2d 131, 133 (1990); State v. Marshall, 92 N.C. App. 398, 401-02, 374 S.E.2d 874, 875-76 (1988).\nIn sum, the amendment in the case at bar did not substantially alter the charge; defendant was not surprised or deprived of notice of the offense. Therefore, the trial court did not err in allowing the State\u2019s pre-evidentiary motion to amend Count III of the indictment to read 929 Dollard Town Road rather than 919 Dollard Town Road.\nAs noted above, although defendant\u2019s counsel presented argument on a single assignment of error, he also requested this Court to conduct, pursuant to Anders, a \u201cfull examination of the record on appeal for possible prejudicial error... to determine whether any justiciable issue has been overlooked.\u201d Counsel acknowledged he was \u201cunable to identify any additional issues with sufficient merit to support meaningful argument for relief on appeal.\u201d Anders applies only where \u201ccounsel finds his case to be wholly frivolous, after a conscientious examination,\u201d and submits to the appellate court a brief, \u201creferring to anything in the record that might arguably support the appeal,\u201d with the request that the court conduct an independent review to ascertain possible prejudice. Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498. In addition, counsel must advise the defendant that he or she has the right- to file written arguments with the appeals court, and counsel must provide the defendant with any necessary documents. See State v. Dayberry, 131 N.C. App. 406, 408, 607 S.E.2d 587, 589 (1998).\nThe combination of an argued assignment of error coupled with a request for review pursuant to Anders presents an inconsistent and effectively hybrid appeal that is improper and subject to dismissal by this Court. An Anders brief is based on the \u201cconclusion that the appeal is wholly frivolous,\u201d State v. Kinch, 314 N.C. 99, 102, 331 S.E.2d 665, 666 (1985) (emphasis added), and that there are no issues suitable to assign as error. Accordingly, assignments of error may not be argued and then supplemented with a request for \u201cpartial\u201d Anders review. Such a procedure is improper and fails to provide a basis for this Court to conduct an independent examination pursuant to Anders. A case may be presented either under the purview of Anders as containing no apparent issue for appeal or as a case involving one or more issues suitable for appellate review; logically and procedurally, it cannot be brought forward on appeal as both. Although defendant\u2019s appeal is thus subject to dismissal, we have elected to exercise our discretion and consider it pursuant to Rule 2.\nIn the case sub judice, defendant\u2019s counsel informed defendant by letter dated 17 November 1998 that in counsel\u2019s opinion, save for the amendment to Count III of the indictment, there was no error in defendant\u2019s trial and that defendant had the right to file his own arguments with this Court pursuant to Anders. Enclosed in the letter were copies of the transcript, the record on appeal, defense counsel\u2019s brief, and the State\u2019s brief. On 19 February 1999, defendant filed written pro se arguments with this Court.\nDefendant had no reason to know that the appeal procedure followed by his counsel would be disapproved of by this Court. In accordance with the letter counsel sent him, defendant submitted a pro se brief to this Court. We will therefore also consider this pro se brief pursuant to Rule 2. We conclude that defendant has raised a meritorious issue.\nDefendant was convicted of two counts of keeping and maintaining a dwelling for the use of a controlled substance, in violation of N.C. Gen. Stat. \u00a7 90-108(a)(7). Both counts involved undercover purchases made by the same officer at the same dwelling. One offense occurred on 22 July 1997 and the other on 22 August 1997. There was also a third buy for which defendant was not charged. Defendant was convicted of both counts, and consecutive sentences were imposed.\nUse of the words \u201ckeep or maintain any .. . dwelling house ... or any place whatever,\u201d implies a process of indefinite duration, indicating that the General Assembly intended that a violation of this statute be a continuing offense. See State v. Mitchell, 336 N.C. 22, 32, 442 S.E.2d 24, 29-30 (1994). Whether this offense is \u201ccontinuing\u201d or not is an issue of first impression in North Carolina. Although we previously have upheld convictions for multiple counts of maintaining a dwelling to keep or sell a controlled substance, the issue of the propriety of charging multiple counts was never raised. See State v. Sanders, 95 N.C. App. 56, 381 S.E.2d 827 (1989). Because this Court is only bound by decisions actually resolving issues raised by the parties to the appeal, see Smith v. Nationwide Mutual Ins. Co., 97 N.C. App. 363, 370, 388 S.E.2d 624, 629 (1990), rev\u2019d on other grounds, 328 N.C. 139, 400 S.E.2d 44 (1991); cf. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), the duplicitous nature of multiple charges of maintaining a dwelling remains open.\nOur Supreme Court has defined a continuing offense as a \u201cbreach of the criminal law not terminated by a single act or fact, but which subsists for a definite period and is intended to cover or apply to successive similar obligations or occurrences.\u201d State v. Johnson, 212 N.C. 566, 570, 194 S.E. 319, 322 (1937). The evidence presented in this case showed a continuous, ongoing, and uninterrupted course of action involving this particular dwelling.\nNorth Carolina appellate courts have held that analogous activities are continuing offenses. See State v. Davis, 302 N.C. 370, 275 S.E.2d 491 (1981) (illegal possession is a continuing offense beginning at receipt and continuing until divestment); Johnson, 212 N.C. 566, 194 S.E.2d 319 (willful failure to support child constitutes continuing offense); State v. White, 127 N.C. App. 565, 492 S.E.2d 48 (1997) (kid-naping is single continuing offense, lasting from time of initial confinement until victim regains free will); State v. Fink, 92 N.C. App. 523, 375 S.E.2d 303 (1989) (conspiracy continues until conspiracy is accomplished or abandoned). Likewise, other jurisdictions have held that statutes similar to section 90-108(a)(7) imply continuity of action. See Dawson v. State, 894 P.2d 672 (Alaska Ct. App. 1995); People v. Vera, 82 Cal. Rptr. 2d 128 (Cal. Ct. App. 1999); Diaz v. State, 740 A.2d 81 (Md. Ct. App. 1999). Moreover, if maintaining a dwelling were not a continuing offense, the State would be free, as we noted in White, to \u201cdivide a single act. . . into as many counts ... as the prosecutor could devise.\u201d White, 127 N.C. App. at 570, 492 S.E.2d at 51. The dearth of reported North Carolina cases involving more than one count of maintaining a dwelling suggests that district attorneys tacitly recognize that the offense is ongoing and accordingly exercise restraint in drafting indictments.\nThere is no evidence indicating a termination and subsequent resumption of drug trafficking at this dwelling; to the contrary, the evidence shows that drugs were readily available there on request throughout the investigation. Because the offense is a continuing offense, we hold that two convictions of the statute forbidding the keeping and maintaining of a dwelling for purposes related to use, storage, or sale of controlled substances violates the constitutional prohibition against double jeopardy, see U.S. Const, amend. V; N.C. Const, art. 1, \u00a7 19, and remand the case to the trial court with instructions to vacate one of the convictions for maintaining a dwelling and to hold a new sentencing hearing.\nFinally, we note our review of the remaining assignments of error set forth in the record on appeal or asserted in defendant\u2019s pro se brief reveals no other issue comprising prejudicial error.\nAffirmed in part, reversed in part, and remanded.\nJudges WYNN and JOHN concur.", "type": "majority", "author": "EDMUNDS, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Thomas B. Wood, Assistant Attorney General, for the State.", "Adrian M. Lapas for defendant-appellant.", "Reginald S. Grady, defendant-appellant, pro se." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. REGINALD SHERWOOD GRADY\nNo. COA98-1192\n(Filed 18 January 2000)\n1. Indictment and Information\u2014 address \u2014 correction\u2014 unnecessary to set out offense \u2014 no misleading of charge by substitution\nThe trial court did not err by allowing the State\u2019s pre-evidentiary motion to amend a count of the indictment charging keeping and maintaining a dwelling for the use of a controlled substance to the correct address of 929 Dollard Town Road, instead of 919 Dollard Town Road, because: (1) specific designation of the address of the dwelling at issue was unnecessary to set out the offense of maintaining a dwelling under N.C.G.S. \u00a7 90-108(a)(7); (2) the amendment did not substantially alter the charge set forth in the indictment; and (3) defendant could not have been misled or surprised as to the nature of the charges against him by this substitution.\n2. Criminal Law\u2014 controlled substances \u2014 keeping and maintaining a dwelling \u2014 continuous offense \u2014 separate convictions\nAlthough assignment of error may not be argued and then supplemented with a request for \u201cpartial\u201d Anders review, the Court of Appeals exercised its discretionary power pursuant to Rule 2 to consider defendant\u2019s pro se argument concerning undercover purchases of drugs made by the same officer at the same dwelling and concluded this case must be remanded because two convictions of keeping and maintaining a dwelling for purposes related to use, storage, or sale of controlled substances under N.C.G.S. \u00a7 90-108(a)(7) violates the constitutional prohibition against double jeopardy since the offense is a continuing offense.\nAppeal by defendant from judgments entered 16 April 1998 by Judge Quentin T. Sumner in Wayne County Superior Court. Heard in the Court of Appeals 19 August 1999.\nMichael F. Easley, Attorney General, by Thomas B. Wood, Assistant Attorney General, for the State.\nAdrian M. Lapas for defendant-appellant.\nReginald S. Grady, defendant-appellant, pro se." }, "file_name": "0394-01", "first_page_order": 428, "last_page_order": 434 }