A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-610


Filed: 2 April 2002


         v.                        Lenoir County
                                Nos. 99 CRS 4924
MICHAEL CAPELL JOHNSON,                    99 CRS 4925

    Appeal by defendant from judgment entered 9 August 2000 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 11 March 2002.

    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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