STATE OF NORTH CAROLINA
v. Cabarrus County
No. 00 CRS 50763
KAREEM ANDRE DUDLEY,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General M.
Janette Soles, for the State.
Amy S. Davis, for defendant-appellant.
HUDSON, Judge.
Defendant was convicted by a jury of possession of a firearm
by a convicted felon and carrying a concealed weapon. The trial
court sentenced defendant to a consolidated term of fifteen to
eighteen months imprisonment. Defendant asserts the trial court
erred in denying his motion to dismiss at the conclusion of the
evidence. We reverse.
On 31 May 2000, Concord Police Officer Keith Childers stopped
defendant for running a red traffic light at the intersection of
Cabarrus Avenue and White Street. Defendant was alone and was
driving a rental car registered to a third person. After learning
of an outstanding warrant for defendant's arrest in MecklenburgCounty, Childers took defendant into custody. During a search of
the rental car, police found a loaded forty caliber handgun in a
console next to the driver's seat. The console was closed but
unlocked. No fingerprints were taken from the gun. Defendant
stipulated to a prior felony conviction.
On appeal, defendant claims the State failed to prove that he
possessed the handgun found in the console of the rental car. He
asserts that his mere proximity to the gun is insufficient to
create an inference that he knew the gun was in the car or placed
it there. Absent additional evidence linking him to the weapon,
defendant claims the trial court erred in denying his motion to
dismiss. He has cited no cases or other authority in support of
this portion of his argument.
In reviewing the denial of defendant's motion to dismiss, this
Court must determine whether the evidence, taken in the light most
favorable to the State, is sufficient to allow a reasonable juror
to find defendant guilty of the offense beyond a reasonable doubt.
See State v. Jones, __ N.C. App. __, __, 556 S.E.2d 644, 655
(2001), appeal dismissed and disc. review denied, 355 N.C. 351, 562
S.E.2d 427 (2002). The State is entitled to all favorable
inferences reasonably drawn from the evidence. State v. Tucker,
347 N.C. 235, 243, 490 S.E.2d 559, 563 (1997), cert. denied, 523
U.S. 1061, 140 L. Ed. 2d 649 (1998). Our Supreme Court has stated
that “[t]he defendant's evidence is not considered unless favorable
to the State,” State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712,
721 (2001), or unless “it explains or clarifies evidence offered bythe State or is not inconsistent with the State's evidence,” State
v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994).
It is well established that possession of an object “may be
either actual or constructive.” State v. Frazier, 142 N.C. App.
361, 367, 542 S.E.2d 682, 687 (2001) (citing State v. Broome, 136
N.C. App. 82, 87, 523 S.E.2d 448, 452 (1999), disc. review denied,
351 N.C. 362, 543 S.E.2d 136 (2000)). “Evidence of constructive
possession is sufficient if it would allow a reasonable mind to
conclude that the defendant had the intent and capability to
maintain control and dominion over the contraband.” State v.
Earhart, 134 N.C. App. 130, 136, 516 S.E.2d 883, 888 (citing State
v. Beaver, 317 N.C. 643, 346 S.E.2d 476 (1986)), appeal dismissed,
351 N.C. 112, 540 S.E.2d 372 (1999).
In addition, “[p]ossession of an item may be either sole or
joint; however, joint or shared possession exists only upon a
showing of some independent and incriminating circumstance, beyond
mere association or presence, linking the person(s) to the item.”
State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998)
(citation omitted). Here, the defendant's evidence, which was not
inconsistent with the State's, consisted of testimony from Patrick
Jerrod Harrington. Harrington testified that, at the time of
defendant's arrest, defendant was driving a vehicle which had been
rented for him (Harrington). On the evening of defendant's arrest,
Harrington had asked defendant to drive the car to retrieve some
fast food for them. Harrington further testified that he owned the
hand gun and cell phone found in the closed console of the car, andhe produced a receipt for the purchase of the gun. He explained
further that after he picked up defendant, Harrington did not open
the console or tell defendant there was a gun inside and that
defendant did not know it was there.
In Alston, this Court held that the evidence did not support
constructive possession of a gun where defendant was a passenger in
a car driven by his wife, and a handgun owned by her was in plain
view on the console between them. We reversed the conviction for
possession of a firearm by a felon noting that these circumstances
did not provide sufficient independent and incriminating evidence
connecting defendant and the gun. See id., 508 S.E.2d at 319.
We do not believe that the evidence here supports a reasonable
inference that defendant had the knowledge of or intent to control
the handgun found in the console of the rental car. Childers
testified that defendant was the driver and lone occupant of the
car in which the gun was found. This Court has previously stated:
An inference of constructive possession can
. . . arise from evidence which tends to show
that a defendant was the custodian of the
vehicle where the controlled substance was
found. In fact, the courts in this State have
held consistently that the “driver of a
borrowed car, like the owner of the car, has
the power to control the contents of the car.”
Moreover, power to control the automobile
where a controlled substance was found is
sufficient, in and of itself, to give rise to
the inference of knowledge and possession
sufficient to go to the jury.
State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984)
(defendant had sole custody of the vehicle, which belonged to his
daughter, for three days prior to offenses) (quoting State v.Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974)); see also
Earhart, 134 N.C. App. at 137, 516 S.E.2d at 888 (vehicle belonged
to defendant and cocaine was hidden in same location as gun, which
he admitted placing there); State v. Hunter, 107 N.C. App. 402, 420
S.E.2d 700 (1992), cert. denied, 333 N.C. 347, 426 S.E.2d 711
(1993), overruled on other grounds by State v. Pipkins, 337 N.C.
431, 446 S.E.2d 360 (1994). However, the cases cited above all
involve considerably more incriminating circumstances than here,
and are thus not controlling. Rather, we believe Alston compels
the conclusion that the evidence of constructive possession here is
insufficient.
Because possession, actual or constructive, denotes a present
intent and ability to control the object, and there was no evidence
here that defendant knew of the handgun found in the console, we
hold that the evidence was insufficient to support his conviction
for either possession of a handgun by a felon or for carrying a
concealed weapon under N.C. Gen. Stat. § 14-269 (2001). Cf. State
v. Jordan, 75 N.C. App. 637, 640, 331 S.E.2d 232, 234 (gun under
driver's seat of car), disc. review denied, 314 N.C. 544, 335
S.E.2d 23 (1985).
Reversed.
Judges GREENE and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***