State v. HollowayÂ, 250 N.C. App. 674

On Oct. 22, 2013 police responded to a breaking-and-entering at 305 Hardin Rd.; two men (McEntire, defendant Holloway) exited the house and were detained.
Firefighters found ~19.86 pounds of marijuana burning in the oven; they recovered marijuana, digital scales, a firearm, and $4,000 in cash from the residence.
Most items and identifying documents in the house belonged to McEntire; only item tied to Holloway was a single photograph of him found face-down in a plastic storage bin in a bedroom.
Holloway was indicted on trafficking (>10 lbs), possession with intent to sell, maintaining a dwelling for keeping/selling controlled substances, possession of drug paraphernalia, and later indicted as an habitual felon; cocaine counts were dismissed before trial.
At trial the State relied on theories of constructive possession and acting in concert; Holloway moved to dismiss for insufficient evidence (denied), was convicted on the drug-related counts and maintaining a dwelling (acquitted on the firearm), and received consecutive sentences; Holloway appealed.

Issue	State's Argument	Holloway's Argument	Held
Sufficiency of evidence for constructive possession (trafficking, possession with intent, paraphernalia)	Presence in the house while marijuana burned and the photo in the home permit reasonable inference of constructive possession and control	Only presence and one photo; no personal items, no keys, no fingerprints, no proximity to contraband — evidence raises only suspicion	Reversed: insufficient evidence; motion to dismiss should have been granted
Sufficiency of evidence for maintaining a dwelling for keeping/selling drugs	Being at the residence when drugs were found and association with occupant supports maintaining the dwelling theory	No indicia of keeping/maintaining (no ownership/lease, no utility/rent/repairs, no proof he lived there)	Reversed: insufficient evidence to support maintaining-a-dwelling conviction
Jury instruction on acting in concert (no objection at trial; plain error review)	Acting in concert instruction was proper because defendant was present and could be inferred to share control/intent with McEntire	No evidence of a common plan or shared criminal intent — mere presence is insufficient	Plain error: instruction improper; vacated because no evidence of joint plan or purpose
Overall relief / disposition	N/A	N/A	Vacated the convictions and judgments based on errors in denying dismissal and giving acting-in-concert instruction

State v. Miller, 363 N.C. 96 (discusses factors for constructive possession; mere presence insufficient)
State v. Brown, 310 N.C. 563 (constructive possession requires other incriminating circumstances when possession of premises is nonexclusive)
State v. Minor, 290 N.C. 68 (reversal where only proof defendant had been a visitor near drugs)
State v. Moore, 79 N.C. App. 666 (upheld constructive-possession convictions where multiple, concrete links to premises existed)
State v. James, 81 N.C. App. 91 (acting-in-concert requires evidence of a common plan; mere presence not enough)
State v. Bowens, 140 N.C. App. 217 (factors for maintaining a dwelling; presence alone insufficient)
State v. Joyner, 297 N.C. 349 (defines acting in concert doctrine)
State v. McLaurin, 320 N.C. 143 (insufficient evidence of constructive possession despite photographs and admission of residence)
State v. Cameron, 284 N.C. 165 (trial judge should not give jury instructions unsupported by the evidence)
State v. Jordan, 333 N.C. 431 (plain-error standard for unpreserved jury-instruction issues)