STATE OF NORTH CAROLINA
v. Cleveland County
No. 01 CRS 3375
DERRICK ANDRE GOODSON
Attorney General Roy Cooper, by Assistant Attorney General
Jill F. Cramer, for the State.
Michael E. Casterline for defendant-appellant.
BIGGS, Judge.
Defendant appeals his conviction for possession of a firearm
by a felon. We find no error and affirm the judgment of the trial
court.
The State's evidence tended to show the following: Shortly
after midnight on 15 April 2001, Shelby Police Officer Stephen
Seate stopped a 1981 Cadillac car at the interchange of Lafatte
Street and State Highway 74. Defendant was driving the car, and a
male identified as Mr. Glover was in the front passenger's seat.
Defendant told Seate that he did not have a driver's license.
After running the Cadillac's tag number through the computer
system, Seate told defendant to exit the vehicle and arrested him
for driving without a license. Seate then opened the car'sdriver's side door and “saw a Ruger [nine-millimeter] handgun on
the driver's seat right near where the driver would be seated.”
The gun was in plain view on the seat. Defendant told Seate that
the gun belonged to his father, who had placed it in the car.
Police found a second handgun under the passenger's seat and
arrested Glover. Seate was unable to contact the car's owner,
Betty Gill Jefferies.
The State introduced a judgment reflecting defendant's
conviction for assault with a deadly weapon inflicting serious
injury on 30 July 1996.
Defendant's father, Charles Hamrick, testified that he had
mistakenly accused defendant of stealing his gun in a police report
he filed with Officer Seate “a couple of days” after 15 April 2001.
Hamrick had been cleaning the gun at approximately 11:00 p.m. on 14
April 2001, when defendant arrived at his house in the Cadillac for
a short visit. When the gun was missing the following morning,
Hamrick assumed defendant had taken it. Following defendant's
arrest, however, defendant told Hamrick, “Daddy you left that gun
in my car and I got charged for it.” Hamrick then remembered that
he had driven the Cadillac briefly to a gas station and had left
the gun in the seat by mistake. On cross-examination, Hamrick
admitted telling Seate that he had never been inside the Cadillac.
He also acknowledged he had never contacted the police to correct
his initial report.
Defendant testified that his father had left the gun in the
car and that defendant had not been aware that it was on the seat. Defendant first asserts that the trial court erred in denying
his motion to dismiss. Specifically, he claims the State failed to
adduce sufficient evidence that he possessed the handgun found in
the driver's seat of the Cadillac. However, “[d]efendant has
failed to cite any authority in his brief in support of this
argument, and, therefore, this argument is deemed abandoned.”
State v. Chavis, 141 N.C. App. 553, 568 n.3, 540 S.E.2d 404, 415
n.3 (2000) (citing N.C.R. App. P. 28(b)(5)). We note that
defendant's status as the driver of a borrowed car creates a
rebuttable inference that he was both aware and in control of the
car's contents. See State v. Searcy, 37 N.C. App. 68, 245 S.E.2d
412 (1978). Although defendant presented testimony that, if
believed, would rebut the inference created by the State's proffer,
his status as driver of the Cadillac and his close proximity to the
gun found in his seat were sufficient facts to take the issue of
possession to the jury. See id.; State v. Wolfe, 26 N.C. App. 464,
216 S.E.2d 470, cert. denied, 288 N.C. 252, 217 S.E.2d 677 (1975);
State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124 (1974).
Defendant next challenges the trial court's jury instruction
on constructive possession. Because defendant did not object to
the instruction at trial and has neither assigned nor argued plain
error on appeal, this issue was not preserved for review on appeal
and is not properly before this Court. See State v. Robinson, 355
N.C. 320, 561 S.E.2d 245 (2002); N.C.R. App. P. 10(b)(2), (c)(4).
In addition, we find no merit to defendant's claim. The trial
court instructed the jury as follows: “A person has constructivepossession of an article if he does not have it on his person, but
is aware of its presence and has both the power and intent to
control its disposition or use.” This instruction is correct in
all respects. See State v. Williams, 136 N.C. App. 218, 523 S.E.2d
428 (1999). Equally without merit is defendant's assertion that a
finding of constructive possession is somehow insufficient to
establish possession of a firearm under N.C.G.S. § 14-415.1 (1999).
See State v. Alston, 131 N.C. App. 514, 508 S.E.2d 315 (1998).
The record on appeal contains an additional assignment of
error which is not addressed in defendant's appellate brief. By
rule, we deem it abandoned. N.C.R. App. P. 28(b)(5).
No error.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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