STATE OF NORTH CAROLINA
v. Lenoir County
Nos. 99 CRS 4924
MICHAEL CAPELL JOHNSON, 99 CRS 4925
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Judith R. Bullock, for the State.
Nicholas E. Harvey, Sr., for defendant-appellant.
BRYANT, Judge.
By criminal citations issued on 16 May 1999, Michael Capell
Johnson (defendant) was charged with two counts of carrying a
concealed weapon and one count of displaying a fictitious
inspection sticker. Upon entry of verdicts and judgments by the
district court, defendant gave notice of appeal in open court to
superior court. On 9 August 2000, a jury heard the charges against
defendant.
The State presented evidence at trial tending to show the
following: At approximately 2:00 a.m. on 16 May 1999, Officer
Kevin Canady saw a taxi cross the center line two or three times in
three blocks. He followed the taxi for another block, thenactivated his blue lights to stop the taxi after it crossed the
center line again. Officer Canady called in the stopped taxi and
reported his location to the communication center. Officer John
Hewitt stated on the radio that he was en route to back up Officer
Canady.
Officer Canady approached the taxi and asked defendant for his
driver's license. As he finished checking on the validity of the
driver's license number, Officer Hewitt arrived and approached the
passenger side of the taxi. Officer Canady next asked to see the
vehicle registration and paperwork for the taxi. Defendant first
reached under a stack of newspapers, then lifted the stack and
moved it. Officer Hewitt noticed “something silver like a gun[,]”
and yelled “possible gun, Officer Canady.” Defendant then said,
“Officers, officers, I'm sorry -- I'm sorry -- I forgot I had this
in the car. I thought I took it out.” Officer Canady placed
defendant under arrest for carrying a concealed weapon. Defendant
did not have a concealed handgun permit, and he did not tell the
officers that a second gun was in the taxi.
The officers had defendant and his two passengers exit the
taxi. During a search of the taxi incident to defendant's arrest,
the officers located a second gun under another stack of
newspapers. Officer Canady stated he did not see the guns when he
approached the taxi despite a street light, his vehicle spotlight,
and both officers' flashlights. After being informed that the
officers had found a second gun, defendant kept inquiring whether
he was going to get the guns back. Defendant made a motion todismiss the charges at the close of the State's evidence, which the
trial court denied.
One of the taxi's passengers, Chaquita Croom, testified that
defendant did not cross the center line at any time. She related
that one of the guns was on the front seat when defendant stopped
the taxi. Ms. Croom saw defendant remove another gun from the
glove compartment and place it on the front seat also. She
described the taxi's windows as “not tinted to the point that they
can see in there.” Although she described the taxi as “junky,” Ms.
Croom stated there were not “enough papers where you can't see the
guns in the front seat.” During cross-examination Ms. Croom
conceded that she had known defendant for eight or nine years, that
he had once been her boyfriend, and that she had an ongoing
intimate relationship with him.
In his testimony, defendant denied crossing the center line.
He asserted that one gun was on the front seat initially, and that
he removed the second gun from the glove compartment and placed it
on the front seat before he stopped. Defendant asserted his
windows had “enough tint so that you can't see inside of my cab.”
As Officer Canady walked up to the taxi, defendant “cracked [his]
window” and “quickly handed him [his] registration and [his]
driver's license.” Defendant had eye to eye contact with Officer
Canady, and defendant said the officer “wasn't even looking in the
car or anything of that nature.”
As Officer Canady was questioning him about swerving,
defendant heard “Hey, hey, they got guns, they got big guns. Getback. Get back.” The officers ordered defendant and his
passengers out of the taxi, then reached into the taxi and removed
the two guns. Defendant claimed both guns were in plain view at
the time of the stop. At the close of all the evidence, defendant
renewed his motion to dismiss the charges. The trial court denied
the motion and submitted the charges to the jury.
The jury found defendant guilty of both counts of carrying a
concealed weapon and not guilty of the charge of displaying a
fictitious inspection sticker. The trial court consolidated the
convictions for judgment. After sentencing defendant to a term of
sixty days imprisonment, the trial court suspended the sentence and
placed defendant on unsupervised probation for twelve months. From
the trial court's judgment, defendant appeals.
Defendant contends the trial court erred by denying his
motions to dismiss the charges for insufficiency of the evidence
which he made at the close of the State's evidence and at the close
of all the evidence. He argues the evidence was insufficient to
prove that he concealed the guns prior to being stopped. We are
not persuaded by defendant's argument.
By introducing evidence, defendant waived his motion to
dismiss which he made at the close of the State's evidence.
If a defendant makes such a motion after the
State has presented all its evidence and has
rested its case and that motion is denied and
the defendant then introduces evidence, his
motion for dismissal . . . made at the close
of State's evidence is waived. Such a waiver
precludes the defendant from urging the denial
of such motion as a ground for appeal.
N.C. R. App. P. 10(b)(3). As for defendant's motion to dismiss which he made at the
close of all the evidence, the trial court had to determine whether
there was substantial evidence of each element of the offense.
State v. Vines, 317 N.C. 242, 253, 345 S.E.2d 169, 175 (1986). In
doing so a trial court must consider the evidence in the light most
favorable to the State and give the State the benefit of every
reasonable inference to be drawn therefrom. State v. Robbins, 309
N.C. 771, 775, 309 S.E.2d 188, 190 (1983). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980). “[I]f the State has offered
substantial evidence against defendant of every essential element
of the crime charged,” defendant's motion to dismiss must be
denied. State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381
(1981).
The misdemeanor offense of carrying a concealed weapon is
defined in N.C.G.S. § 14-269(a) (1999): “It shall be unlawful for
any person willfully and intentionally to carry concealed about his
person any . . . deadly weapon . . . except when the person is on
the person's own premises.” Defendant concedes that the two guns
were deadly weapons and that he was not on his premises. He
contests only the element of concealment.
While defendant presented evidence in the form of his and Ms.
Croom's testimony that the two guns were in plain view at the time
of the stop, the State presented testimony by Officer Canady and
Officer Hewitt that neither of the guns were visible beforedefendant moved a stack of newspapers. After the presence of the
first gun was discovered, defendant apologized and told the
officers that he thought he had removed the gun. The officers
further testified that defendant did not inform them of the second
gun prior to its discovery under a stack of newspapers during the
search of the taxi. When viewed in the light most favorable to the
State, this evidence of the element of concealment was sufficient
to support the trial court's denial of defendant's motion to
dismiss. Once sufficient evidence is adduced at trial, it becomes
a question for the jury. State v. Styles, 93 N.C. App. 596, 603,
379 S.E.2d 255, 260 (1989). Accordingly, we find no error.
No error.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
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