Appeal by defendant from judgment dated 28 February 2001 by
Judge Michael E. Helms in Superior Court, Forsyth County. Heard in
the Court of Appeals 27 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Jill F. Cramer, for the State.
Robert W. Ewing for defendant-appellant.
Ishmon Myers (defendant) was indicted for possession of a
firearm by a convicted felon in violation of N.C. Gen. Stat. § 14-
415.1 and for being an habitual felon in violation of N.C. Gen.
Stat. § 14-7.1.
At trial, Officer W.A. Polk (Officer Polk) of the Winston-
Salem Police Department testified that on the night of 8 September
2000 he received a dispatch call at 1:27 a.m. concerning a shooting
in the 600 block of Gill Street, where public housing units and
Alder Park are located. When Officer Polk arrived, he saw six or
more people standing around a man, "who was laying partially on the
sidewalk with his legs in the street and his left foot propped on
a pillow." Officer Polk testified defendant had "a small hole withblood coming from it on the top of his foot with what appeared to
be [a] burned area of the skin near the wound -- around the wound."
Officer Polk spoke with two people at the scene and following
those conversations he went to Alder Park to "look for a
handgun." He testified that he searched the park for about twenty
minutes but did not locate anything in the park. Officer Polk
visited defendant at Baptist Hospital and asked him what happened.
Officer Polk testified that defendant responded that he was using
a pay phone located around the corner from the park, and
that three subjects in a black Taurus pulled
into the parking lot where he was using the
telephone and asked him if he had any
"green[,]" and he said that meant marijuana,
and he told them no. He said they called him
over to the car and he told them no and he
asked them what -- he said when he walked up
to the car the subject in the back seat had a
gun and he began running and heard three
Officer Polk testified that he did not believe defendant's
explanation due to "[i]nformation [he] had received and also [the]
location of the wound." Officer Polk asked defendant how, if he
was running away, he received the wound in the top of his foot.
Defendant replied that "the subject in the back seat pointed the
gun like this (witness indicating) and fired a shot and [defendant]
ran away and then heard two more shots." Officer Polk testified
that defendant said he believed the first shot was the one that hit
him in the foot.
Officer Polk told defendant that he did not believe his story
and offered a gunshot residue test to defendant. Defendant then
told Officer Polk that he had shot himself with a "twenty-fivecaliber semi-automatic pistol." Defendant indicated to Officer
Polk that he was not shot near the pay phone but in a different
location about 350 feet away from the pay phone. Officer Polk
testified that defendant told him "that he dropped the gun because
he ran to get help because he felt like he was going to pass out."
Officer Polk testified that he had received specific training
as a police officer concerning firearms and he described what a
twenty-five caliber gun looked like. The State asked Officer Polk
if, "[o]ther than this case, have you ever seen an injury on
someone that resulted from a .25 caliber handgun?" Officer Polk
replied that he had. The State then asked Officer Polk if, in his
opinion, the injury he saw on defendant was consistent with an
injury "that someone could sustain with a .25 caliber handgun."
The defense objected for lack of foundation and because the
question asked for speculation by Officer Polk. The trial court
stated that, "I think this officer  by training and/or experience
probably has the necessary degree of expertise to be allowed to
give an opinion on it." Officer Polk stated that the wound on
defendant's foot could have resulted from a twenty-five caliber
On cross-examination, Officer Polk testified that on two later
occasions he searched the area where defendant said he was shot.
On the second occasion, he and other officers searched for about
forty minutes and then called for a canine to assist "because the
area there is real thick. The kudzu area is real thick." No
weapon was recovered from the second search. In the third search,a canine also assisted but the canine handler would not allow the
dog into the area of thick kudzu. Again, no weapon was recovered.
At the close of the State's evidence, defendant moved to
dismiss the charge of possession of a firearm by a convicted felon.
The trial court denied defendant's motion. Defendant did not
present evidence. At the close of all evidence, defendant again
moved to dismiss the charge against him, which was denied.
The jury found defendant guilty of possession of a handgun by
a felon and defendant thereafter pled guilty to habitual felon
status. The trial court sentenced defendant to 100 to 129 months
in prison. Defendant appeals.
Defendant raised six assignments of error on appeal but, in
his brief to our Court, did not address assignment of error number
six, which is therefore deemed abandoned. N.C.R. App. P. 28(a)
("Questions raised by assignments of error in appeals from trial
tribunals but not then presented and discussed in a party's brief,
are deemed abandoned.").
By his first two assignments of error, defendant argues the
trial court erred in denying his motion to dismiss the charge of
possession of a firearm by a felon because there was insufficient
evidence to submit the charge to the jury.
A motion to dismiss is properly denied if there is substantial
evidence (1) of each essential element of the offense charged and
(2) that the defendant is the perpetrator of the offense. State v.
, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994) (citingState v. McAvoy
, 331 N.C. 583, 589, 417 S.E.2d 489, 493 (1992)).
Substantial evidence is such relevant evidence as a reasonable
juror might accept as adequate to support a conclusion. Id.
consideration of a motion to dismiss, "all of the evidence should
be considered in the light most favorable to the State, and the
State is entitled to all reasonable inferences which may be drawn
from the evidence." State v. Davis
, 130 N.C. App. 675, 679, 505
S.E.2d 138, 141 (1998).
The essential elements of the crime of
"possession of a firearm by a felon" are: (1)
the purchase, owning, possession, custody,
care, or control; (2) of a "handgun or other
firearm with a barrel length of less than 18
inches or an overall length of less than 26
inches, or any weapon of mass death and
destruction as defined in G.S. 14-288.8(c)";
(3) by any person having a previous conviction
of any crime defined in N.C. Gen. Stat. §
14-415.1(b); and (4) provided the owning,
. occurs "within five years
from the date of [the previous] conviction, or
the unconditional discharge from a
correctional institution, or termination of a
suspended sentence, probation, or parole upon
such conviction, whichever is later."
State v. Alston
, 131 N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998)
(quoting N.C.G.S. § 14-415.1(a) (Supp. 1997)). See also
Stat. § 14-415.1 (1999).
Defendant concedes the third and fourth elements of the
offense were proven by the State. However, defendant argues that
his alleged confession to possession of the twenty-five caliber
handgun was not sufficient to prove the first two elements of the
offense. As support for his argument, defendant relies on State v.
, 281 N.C. 81, 85-86, 187 S.E.2d 735, 738 (1972), in whichour Supreme Court reiterated the long-standing rule that "a felony
conviction may not be based upon or sustained by a naked
extrajudicial confession of guilt uncorroborated by any other
Defendant contends "[t]here must be independent proof,
either direct or circumstantial, of the corpus delicti
in order for
the conviction to be sustained." State v Green
, 295 N.C. 244, 248,
244 S.E.2d 369, 371 (1978).
Defendant argues that because no
weapon or bullet was produced, there is no evidence, independent of
his alleged confession, to show that defendant shot himself and
used a twenty-five caliber handgun. We disagree.
Our Supreme Court's decision in Jenerett
has been modified
State v. Parker
, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985),
when the State relies upon the defendant's
confession to obtain a conviction, it is no
longer necessary that there be independent
proof tending to establish the corpus delicti
of the crime charged if the accused's
confession is supported by substantial
independent evidence tending to establish its
trustworthiness, including facts that tend to
show the defendant had the opportunity to
commit the crime. . . . [H]owever, . . . when
independent proof of loss or injury is
lacking, there must be strong
facts and circumstances embraced in
the defendant's confession. Corroboration of
insignificant facts or those unrelated to the
commission of the crime will not suffice . . .
because although we have relaxed our
corroboration rule somewhat, we remain
advertent to the reason for its existence,
that is, to protect against convictions for
crimes that have not in fact occurred.
In the case before us, considering the evidence in a light
most favorable to the State, there is sufficient evidence thatclosely parallels defendant's confession and further establishes
its trustworthiness. See State v. Shook
, 327 N.C. 74, 80, 393
S.E.2d 819, 822-23 (1990). Officer Polk testified that defendant
confessed that he shot himself in the foot with a twenty-five
caliber semi-automatic pistol at a specified location inside Alder
Park. Defendant also told Officer Polk that after shooting
himself, he dropped the handgun and went to look for help.
Sufficient evidence was presented at trial which closely parallels
this confession. Defendant was found lying on the ground with his
foot propped up approximately 350 feet from the location where he
said he dropped the gun and then went to get help because he was
about to pass out.
After looking at defendant's wound, Officer Polk testified
that in his opinion defendant used a twenty-five caliber handgun to
shoot himself. The gunpowder residue showed defendant was shot at
close range and defendant's wound was on the top of his foot and
fired at close enough range to cause a burn mark around the wound.
This independent evidence as testified to by Officer Polk closely
parallels defendant's confession and is sufficient to further
establish its trustworthiness.
The trial court did not err in denying defendant's motion to
dismiss. Defendant's first two assignments of error are overruled.
Defendant contends by his third, fourth and fifth assignments
of error that the trial court erred in allowing Officer Polk to
testify as to his opinion that defendant's injury was consistentwith an injury caused by a twenty-five caliber handgun because (1)
an insufficient foundation was laid for said testimony, (2) Officer
Polk was not qualified to render this opinion, and (3) the
testimony was inadmissible speculation by a lay witness.
"If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in
the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702(a)
"Whether the witness has the requisite
skill to qualify him as an expert is chiefly a
question of fact, the determination of which
is ordinarily within the exclusive province of
the trial judge. . . .
"A finding by the trial judge that the
witness possesses the requisite skill will not
be reversed on appeal unless there is no
evidence to support it. . . ."
State v. King
, 287 N.C. 645, 658, 215 S.E.2d 540, 548-49 (1975)
(quoting 1 Stansbury's N.C. Evidence § 133 (Brandis Rev. 1973)),
judgment vacated in part
, 428 U.S. 903, 49 L. Ed. 2d 1209 (1976).
Defendant argues a proper foundation was not laid for Officer
Polk to qualify as an expert witness because Officer Polk's "one
time experience" in viewing an injury caused by a twenty-five
caliber handgun does "not make him better qualified than the jury
to form an opinion as to  defendant's injury." Further,
defendant argues there was no evidence of Officer Polk's training
or background in the area of ballistics, nor did the trial court
inquire as to whether Officer Polk had testified as a ballisticsexpert in other cases. Finally, defendant argues no evidence was
presented as to how many gunshot wounds Officer Polk "had actually
We disagree that there is no evidence to support the trial
court's qualification of Officer Polk as an expert witness and his
subsequent testimony. Officer Polk testified under oath that he
had specific training in the area of firearms. He testified as to
what a twenty-five caliber gun looked like and that he had
previously seen an injury on someone who had been shot with a
twenty-five caliber gun. Therefore, the trial court did not err in
qualifying Officer Polk as an expert witness in the area of
ballistics because there is evidence to support the trial court's
Defendant's third, fourth and fifth assignments of
error are overruled.
Judges WALKER and CAMPBELL concur.
Report per Rule 30(e).
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