STATE OF NORTH CAROLINA
v
.
Davidson County
No.01 CRS 50009
CHARLIE WILLIS, III,
Defendant.
HUDSON, Judge.
Defendant appeals the judgment entered upon conviction by a
jury of possession of a firearm by a felon. Before the State
presented any evidence to the jury, defendant stipulated that he
had previously been convicted of a felony.
The State's evidence showed that at approximately 5:30 p.m. on
1 January 2001, State Highway Patrol Trooper Jerry Baity saw a blue
Jeep Cherokee traveling north on Interstate Highway 85 in Davidson
County. Trooper Baity estimated the Jeep's speed to be ninetymiles per hour in a seventy mile per hour speed zone. Using a K-55
stationary moving radar device, Trooper Baity confirmed that the
Jeep was traveling eighty-nine miles per hour. Trooper Baity then
stopped the Jeep for speeding and learned that defendant was its
only occupant. Trooper Baity approached the Jeep and asked
defendant to produce his license and vehicle registration.
Defendant handed Trooper Baity his license and a copy of a vehicle
rental contract.
Trooper Baity noticed a strong odor of marijuana emanating
from the vehicle, and also saw that defendant's eyes were red and
watery. Trooper Baity asked defendant if he had any marijuana in
the vehicle, and defendant replied that he had smoked marijuana
approximately thirty minutes earlier. Trooper Baity returned to
his vehicle and called for assistance.
Soon, Trooper Glenn Smith arrived at the scene. The Troopers
had defendant get out of the vehicle, placed him in handcuffs, and
informed him that they were going to search the vehicle, to which
defendant said, “Go ahead.” Trooper Baity placed defendant in his
patrol car while two other Troopers searched the Jeep.
Trooper Smith found a loaded .380 caliber handgun in a holster
in the unlocked glove box of defendant's vehicle. Trooper Smith
unloaded the handgun and placed it back in the holster. Trooper
Smith then ran a check on the serial number on the handgun, andlearned that the handgun was not stolen. Trooper Smith then turned
the handgun over to Trooper Baity.
Cheryl Albrecht, the location manager and custodian of records
for Triangle Rent-A-Car, identified a copy of defendant's rental
contract for the Jeep Cherokee from 28 December 2000 until 4
January 2001, and described it as a business record Triangle kept
in the normal course of their business. The prosecutor introduced
the record, defendant did not object, and the trial court received
the contract into evidence as State's Exhibit 2.
Ms. Albrecht also testified about the policies and procedures
followed by Triangle to prepare a vehicle for the next renter and
to ensure that no personal belongings remain in the vehicle.
According to Ms. Albrecht, Triangle personnel check all
compartments of a vehicle, including the glove box, after its
return and before another customer rents the vehicle. If they find
personal belongings inside a vehicle, they bring the items into the
office and tag them “with which vehicle they come out of,” and
contact the previous renter. Whenever they find a weapon inside a
vehicle, Ms. Albrecht notifies the Greensboro Police Department.
Triangle also keeps a daily inspection and reconciliation
sheet showing the various things done to a vehicle before it is
rented. Triangle's policy is to note on this sheet any personal
belongings that were found in the vehicle during cleaning. Ms.Albrecht identified State's Exhibit 3 as a copy of Triangle's
vehicle inspection and daily reconciliation log from 28 December
2000. This exhibit showed an entry for the Jeep that defendant
rented 28 December 2000, and showed no entries noting that any
personal belongings were found in the vehicle when it was cleaned
before defendant rented it on that date. Hearing no objection from
defendant, the trial court received State's Exhibit 3 into
evidence.
Ms. Albrecht also testified to, and the trial court received
into evidence, State's Exhibits 4 and 5, respectively, a copy of a
rental return form from a previous rental of the same vehicle by
defendant, and the rental contract from the previous rental.
Defendant did not object to either exhibit.
Defendant brings forth four assignments of error. In his
first arguments, defendant contends that the trial court erred in
denying defendant's motion to dismiss at the close of the State's
evidence and that the trial court erred in denying defendant's
motion for Judgment Notwithstanding the Verdict.
In ruling on a defendant's motion to dismiss, “the trial court
is to determine whether there is substantial evidence (a) of each
essential element of the offense charged, or of a lesser offense
included therein, and (b) of defendant's being the perpetrator of
the offense.” State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d649, 651 (1982). Whether the evidence presented constitutes
substantial evidence is a question of law for the court.
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. at 66,
296 S.E.2d at 652. Our Courts have repeatedly noted that “[t]he
evidence is to be considered in the light most favorable to the
State; the State is entitled to every reasonable intendment and
every reasonable inference to be drawn therefrom; contradictions
and discrepancies are for the jury to resolve and do not warrant
dismissal . . . .” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d
57, 61 (1991) (citations omitted). “If all the evidence, taken
together and viewed in the light most favorable to the State,
amounts to substantial evidence of each and every element of the
offense and of defendant's being the perpetrator of such offense,
a motion to dismiss is properly denied.” State v. Mercer, 317 N.C.
87, 98, 343 S.E.2d 885, 892 (citations omitted).
Here, defendant was charged with possession of a handgun by a
felon in violation of G.S. . 14-415.1. Pursuant to G.S. . 14-
415.1(a), it is unlawful for “any person who has been convicted of
a felony to purchase, own, possess, or have in his custody, care,
or control any handgun or other firearm with a barrel length of
less than 18 inches or an overall length of less than 26 inches .
. . .” N.C. Gen. Stat. § 14-415.1(a) (1999). Defendant stipulatedto having been previously convicted of a felony. Thus, defendant's
sole contention is that the evidence was insufficient for the jury
to find that defendant had possession of the firearm.
Possession may either be actual or constructive. State v.
Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). “A
person has constructive possession of an item when the item is not
in his physical custody, but he nonetheless has the power and
intent to control its disposition.” Id.
In Alston, this Court found insufficient evidence to support
an inference of constructive possession of a firearm when the
evidence showed that the gun was found laying on the console
between the driver and the defendant, the driver and the defendant
had equal access to the gun, and the gun was purchased and owned by
the driver. Alston, 131 N.C. App. at 519, 508 S.E.2d at 319.
Here, the evidence showed: that defendant rented a Jeep Cherokee
from Triangle Rent-A-Car on 28 December 2000; that before defendant
took possession of the vehicle, Triangle conducted its standard
cleaning and inspection procedure, which included checking all
vehicle compartments; that no firearm had been found in the car
during that inspection; that when Trooper Baity stopped the Jeep,
defendant was its sole occupant; and that Troopers found a loaded
.380 caliber handgun in the glove box of the Jeep. We conclude
that this evidence was sufficient to support an inference thatdefendant constructively possessed the firearm, and that the court
did not err by refusing to dismiss the charge of possession of a
firearm by a felon.
Defendant next argues that the trial court erred in admitting
into evidence the defendant's rental contract and other documents
from Triangle (State's Exhibits 2, 3, 4, and 5). Defendant
contends that the State did not lay the proper foundation for the
admission of these documents. Because defendant failed to object
or otherwise preserve this argument for review, this assignment of
error is overruled.
North Carolina Rule of Appellate Procedure 10(b)(1) provides,
in pertinent part, that:
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context.
N.C. R. App. P. 10(b)(1).
In State v. Canady, our Supreme Court noted that:
The purpose of the rule [Rule 10(b)(1)] is to
require a party to call the court's attention
to a matter upon which he or she wants a
ruling before he or she can assign error to
the matter on appeal. If we did not have this
rule, a party could allow evidence to be
introduced or other things to happen during a
trial as a matter of trial strategy and then
assign error to them if the strategy does notwork.
State v. Canady, 330 N.C. 398, 401-02, 410 S.E.2d 875, 878 (1991)
(citations omitted).
Here, defendant objected to two questions asked of Ms.
Albrecht on the grounds of relevance. However, defendant neither
objected to the admission of any of the State's exhibits, nor did
he move to strike any of these exhibits after their admission.
Because defendant failed to properly preserve this assignment of
error for review, we decline to address it on the merits.
Finally, defendant argues that the trial court erred in
refusing to instruct the jury on the offense of carrying a
concealed weapon as a lesser included offense of possession of a
firearm by a felon.
To be a lesser included offense, “all of the essential
elements of the lesser crime must also be essential elements
included in the greater crime.” State v. Westbrooks, 345 N.C. 43,
55, 478 S.E.2d 483, 491 (1996). The offense of carrying a
concealed weapon is defined as follows: “It shall be unlawful for
any person willfully and intentionally to carry concealed about his
person any pistol or gun . . . .” N.C. Gen. Stat. § 14-269(a1)
(1999). Carrying a concealed weapon has as an essential element
that the weapon be “concealed,” whereas possession of a firearm by
a felon does not. Therefore, since the “greater” crime does notcontain all of the essential elements of the “lesser” crime, we
hold that carrying a concealed weapon is not a lesser included
offense of possession of a firearm by a felon.
No error.
Judges McGEE and BIGGS concur.
Report per Rule 30(e).
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