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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. WILLIAM THOMAS GLASCO
Filed: 2 September 2003
The trial court did not err in a possession of a firearm by a convicted felon case by
admitting several of the State's exhibits including an AK-47 magazine, an AK-47 rifle, a brown
bag containing a plastic garbage bag, the plastic garbage bag, and a plastic bag with casings and
bullets, even though defendant contends the State failed to lay a proper foundation to authenticate
those exhibits, because: (1) defendant neither objected to the admission of the AK-47 magazine
at trial nor used it as the basis for an assignment of error in the record on appeal; (2) the State's
witnesses properly identified each exhibit at trial and stated that there was no material change in
the condition of the exhibits from the seizure to the analysis to the identification during trial; and
(3) contrary to defendant's assertion, the testing marks on the garbage bag do not constitute
2. Firearms and Other Weapons--possession of a firearm by a convicted felon--motion
to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
possession of a firearm by a convicted felon under N,.C.G.S. § 14-415.1 based on alleged
insufficient evidence that defendant had possession of the firearm because circumstantial
evidence tended to show that defendant had discharged a gun, giving rise to a reasonable
inference that he possessed that gun at least long enough to fire it.
3. Criminal Law--prosecutor's argument_-defendant's alleged flight
Although the prosecutor made improper remarks concerning defendant's alleged flight in
a possession of a firearm by a convicted felon case when in fact defendant was only seen jumping
over a nearby fence and the trial court had refused to give a jury instruction on the alleged flight,
the trial court did not abuse its discretion by refusing to declare a mistrial because the improper
comments did not rise to the level of being prejudicial.
4. Firearms and Other Weapons--possession of a firearm by a convicted felon--motion
to set aside verdict--motion for new trial
The trial court did not abuse its discretion in a possession of a firearm by a convicted
felon case by failing to grant defendant's motion to set aside the verdict or grant a new trial even
though defendant contends there was insufficient evidence to infer that he possessed a firearm
and the fact that the jury did not find him guilty of firing into an occupied residence suggested
that the jury was confused by the charges, because: (1) the evidence on the bag that tended to
show defendant had a weapon supported the possession charged, but the jury may not have been
persuaded that defendant fired those particular shots; and (2) the evidence was sufficient to
support the jury's verdict.
5. Sentencing--habitual felon-_utilizing same felony as basis for underlying conviction
The indictment used to charge defendant for being an habitual felon did not violate
defendant's double jeopardy rights by allegedly utilizing the same felony charge as the basis for
his underlying conviction for possession of a firearm by a convicted felon and as one of the threeunderlying felonies used to elevate him to habitual felon status, because our courts have
determined that elements used to establish an underlying conviction may also be used to establish
a defendant's status as a habitual felon.
Appeal by defendant from judgment entered 7 September 2001 by
Judge Stafford G. Bullock in Superior Court in Vance County. Heard
in the Court of Appeals 20 February 2003.
Attorney General Roy Cooper, by Fred Lamar, Assistant Attorney
General, for the State.
James N. Freeman, Jr. for defendant/appellant.
The grand jury indicted defendant William Thomas Glasco on
charges of discharging a firearm into occupied property,
possession of a firearm by a convicted felon, and for being an
habitual felon. On 7 September 2001, a jury found him not guilty
of discharging a firearm into occupied property, and guilty of
possession of a firearm while a felon. Defendant then entered a
plea of guilty to the status of habitual felon, and the court
sentenced him to a prison term of 121 to 155 months. Defendant now
He appeals, contending that the trial court erred (1) by
allowing various exhibits to be introduced at trial; (2) by denying
his motion to dismiss; (3) by not declaring a mistrial based on the
prosecutor's improper comments during closing arguments; (4) by
failing to grant defendant's motion to set aside the verdict or
grant a new trial. Defendant also contends that the trial court
should have dismissed the habitual felon indictment because itviolated defendant's right to be free from double jeopardy. For
the reasons set forth below, we find no prejudicial error.
The State's evidence at trial tended to show the following:
On 29 April 2000, around 9:00 or 9:30 p.m., Kathleen Barnes
returned to her home in Henderson, North Carolina. She took a
shower and, just as she was finishing, heard shooting that sounded
like it was coming into her house. Barnes stayed on the floor for
a few minutes until the shooting stopped, and then she and her
brother heard a commotion and went outside. Barnes testified that
she recognized defendant, who was in a police patrol car by that
time. Defendant is the first cousin of Barnes' husband.
On cross-examination, Barnes admitted that, before this
shooting incident she had sought police assistance because of
domestic abuse problems with her husband. After the incident,
Barnes reconciled with her husband, but later left him again after
he committed domestic violence against her. She also testified
that on the day of the shooting, she saw her husband driving by her
house with a very dark person in the truck with him pointing
toward the house.
Barnes' neighbor Barbara Marshall, testified that on the
evening of 29 April 2000, she heard a lot of gunshots. She opened
her back door and saw a man wearing a black or brown jacket
holding a paper sack or trash bag and jumping over the fence behind
the utility shed belonging to her neighbor, Ronald Camp. Marshall
testified that she later saw defendant in the police car, and that
he appeared to be wearing clothes like the person she had seen nearthe fence. She then identified defendant positively as the man she
had seen jumping over the fence.
Deputy Sheriff Lloyd Watkins testified that he was called to
the scene at approximately 10:00 or 11:00 p.m. When he arrived,
people sitting outside told him that the house was shot up.
After asking the people outside to describe the shooter, police
canvassed the area and found defendant standing near the street
four or five houses up from Barnes's home. Watkins and Officer
Root-Ferguson patted defendant down and found a bundled trash bag
under his jacket. Root-Ferguson said that defendant claimed that
the bag was a sweat bag and that he had been running.
Ronald Camp, who lived two doors down from Marshall near
Barnes, testified that he and his family were out when the shooting
occurred. When they returned, they noticed the commotion. Camp
then searched for and found an AK-47 rifle hidden in a pile of
tires beside his backyard shed, and directed the police to the gun.
Officer Root-Ferguson testified that he talked to a number of
witnesses at the scene and that none but Marshall could positively
identify defendant as the individual they saw involved in the
shooting. Root-Ferguson confirmed that his incident report
indicated that one of the witnesses told him that defendant was not
the man she had seen. Root-Ferguson did not take the name or
address of this witness or any of the others who could not
positively identify defendant.
Caroline Bachelor, who worked with Kathleen Barnes, testified
that an AK-47 identical to the one admitted into evidence at trial
was stolen from her house about the same time as the shooting. Shesaid that someone stole the gun from a closet in her home during a
house-warming party, and that she reported the theft either the day
of the shooting or the day after.
Ricky Navarro, a latent evidence expert for the State Bureau
of Investigation, testified that the latent fingerprint remnants
found on the AK-47 were not of sufficient quality to form the basis
for an identification.
Detective Jim Cordell of the Vance County Sheriff's Department
testified for defendant. Cordell said that he had interviewed
Barnes on 2 May 2000 and 9 May 2000 regarding the shootings.
Barnes told Cordell that on 9 May 2000, ten days after the
shooting, she had spoken with Bachelor at work. Bachelor had asked
Barnes whether her husband was trying to kill her and told Barnes
that it was her gun that was used in the shooting. Cordell also
indicated that his interview summaries were in the investigation
file in the case, but that after he completed the interview, Root-
Ferguson took over primary investigation of the case.
 Defendant first argues that the State failed to lay a
proper foundation by which to authenticate State's Exhibits 5-9 and
that such failure was prejudicial and requires a new trial. We do
In North Carolina, evidence that is identified and introduced
in court as the object that was actually involved in the subject
incident is referred to as real evidence. State v. Harbison, 293
N.C. 474, 483, 238 S.E.2d 449, 454 (1977). When real evidence isproperly identified, it is freely admissible. State v. Williamson,
146 N.C. App. 325, 335, 553 S.E.2d 54, 61 (2001), disc. review
denied, 355 N.C. 222, 560 S.E.2d 366 (2002) (citation and quotation
marks omitted). It must simply 'be identified as the same object
involved in the incident in order to be admissible' and as not
having undergone any material change. Id. (citation omitted).
Authentication of real evidence 'can be done only by calling a
witness, presenting the exhibit to him and asking him if he
recognizes it and, if so, what it is.' State v. Bryant, 50 N.C.
App. 139, 141, 272 S.E.2d 916, 918 (1980) (quoting 1 Stansbury's
North Carolina Evidence § 26 (Brandis rev. 1973)). Moreover, [a]s
there are no specific rules for determining whether an object has
been sufficiently identified, the trial judge possesses, and must
exercise, sound discretion. Williamson, 146 N.C. App. at 336, 553
S.E.2d at 61 (citation and quotation marks omitted).
First, defendant challenges the admission of State's Exhibit
6 (the AK-47 magazine). Defendant neither objected to the
admission of State's Exhibit 6 at trial nor used it as the basis
for an assignment of error in the record on appeal. Accordingly,
we conclude that he waived this issue. N.C.R. App. P. 10(b)(1).
The remaining exhibits defendant challenges are the AK-47
rifle (Exhibit 5); a brown bag that contained a plastic garbage bag
(Exhibit 7); the plastic garbage bag (Exhibit 8); and a plastic bag
with casings and bullets (Exhibit 9). Officer Root-Ferguson
identified each exhibit at trial as being in substantially the same
condition and appearance as when he first saw them, with the
exception of marks on the garbage bag made by technicians. Root-Ferguson clearly identified the rifle as being the same as that
shown to him by Mr. Camp, who had found the rifle near his shed
where defendant was seen jumping a fence. Likewise, regarding the
garbage bag, Root-Ferguson testified that he found the item on
defendant's person, bundled under his jacket. That same night he
placed the garbage bag inside a paper bag, sealed it, and marked it
Detective John Almond, the officer in charge of the evidence
room, then took and retained custody of the garbage bag and the
casings and bullets. Almond testified that he was responsible for
retaining custody over evidence submitted by the officers, for
transferring evidence to the State Bureau of Investigation (SBI),
and for making the evidence available to the officers for court.
He testified that he had custody of State's Exhibits 5, 6, 7, 8,
and 9 and was familiar with them. He said that he had delivered
the exhibits to the SBI and that they were mailed back to him.
Forensic firearm and tool mark examiner Thomas Trochum tested
the garbage bag and the casings and bullets after their receipt by
the SBI. Ricky Navarro, the SBI latent evidence expert, tested the
rifle and then returned it to Trochum. After concluding his
examinations, Trochum returned the exhibits to Roosevelt Ryals, an
SBI evidence technician, who then sent them to Almond via United
This evidence reveals that the State's witnesses properly
identified each exhibit at trial and that there was no material
change in the condition of the exhibits from the seizure to the
analysis and to the identification during the trial. Contrary todefendant's assertion in his brief, the testing marks on the
garbage bag do not constitute material alterations. Moreover, even
though defendant argues that the rifle and magazine could have been
altered or changed because they were discarded in a pile of tires,
there was no evidence that they were altered. Officer Root-
Ferguson testified simply that the exhibits at trial were the same
as those found in the tire pile. We conclude that the exhibits
were properly admitted. E.g., State v. King, 311 N.C. 603, 618,
320 S.E.2d 1, 10-11 (1984) (weapons, projectile, and casings
properly admitted where the State established a chain of custody
and established that there were no material changes in the items'
 Next, defendant argues that the trial court erred by
denying his motion to dismiss all charges on the grounds of
insufficiency of the evidence. Specifically, he contends that the
State failed to prove that he possessed the assault rifle. Again,
we disagree. A motion to dismiss should be denied if there is
substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense.
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).
Substantial evidence is that relevant evidence which a reasonable
mind would find sufficient to support a conclusion. State v.
Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 72 (1996). In
determining whether there is evidence sufficient for a case to go
to the jury, the trial court must consider the evidence, both
direct and circumstantial, in the light most favorable to theState, giving the State the benefit of every reasonable inference
to be drawn therefrom. Id. The trial court neither weighs the
evidence nor considers evidence unfavorable to the State because
weighing the evidence and assessing the credibility of witnesses
fall within the province of the jury. State v. Parker, 354 N.C.
268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114,
153 L. Ed 2d 162 (2002).
Here, defendant was charged with possession of a firearm by a
felon in violation of N.C. Gen. Stat. § 14-415.1. Pursuant to
section 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)(2001). Defendant
does not challenge his status as a convicted felon; thus, his sole
contention on appeal is that the evidence was insufficient for the
jury to find that he 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). When
the defendant, 'while not having actual possession, . . . has the
intent and capability to maintain control and dominion over' the
[property], he has constructive possession of the item. State v.
Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (citation
omitted). This Court has previously emphasized that 'constructive
possession depends on the totality of the circumstances in each
case. No single factor controls, but ordinarily the questions will
be for the jury.' State v. Butler, 147 N.C. App. 1, 11, 556S.E.2d 304, 311 (2001), affirmed, 356 N.C. 141, 567 S.E.2d 137
(2002) (citation omitted) (emphasis omitted).
Viewed in the light most favorable to the State, we conclude
that the circumstantial evidence here was sufficient to withstand
a motion to dismiss and allow the jury to resolve the issue. State
v. Clark, 138 N.C. App. 392, 403, 531 S.E.2d 482, 489 (2000), cert.
denied, 353 N.C. 730, 551 S.E.2d 108 (2001) ([a]though the State's
case centered around circumstantial evidence, taken in the light
most favorable to the State, it was sufficient to withstand the
defendant's motions to dismiss). Barnes' neighbor Barbara
Marshall, testified that shortly after the shooting incident she
saw defendant jumping over a fence into her back yard, near the
shed in Ronald Camp's yard. Camp then found the gun in his back
yard, near the shed in a pile of tires. The SBI analyst testified
that the garbage bag found on defendant's person had firearm
discharge residue in it. The analyst also explained that at least
two of the holes in the bag were physically altered through melting
and chemicals from lead particulate and vapor, signs consistent
with discharging a firearm from inside the bag. Because this
evidence tended to show that defendant had discharged a gun, we
also conclude that it gave rise to a reasonable inference that he
possessed that gun, at least long enough to fire it. Such
evidence, when taken in the light most favorable to the State,
provides a sufficient link between defendant and a firearm to allow
for the jury's consideration. State v. Jackson, 103 N.C. App. 239,
243, 405 S.E.2d 354, 357 (1991), affirmed, 331 N.C. 113, 413 S.E.2d798 (1992) (issues of constructive possession are properly
determined by the jury). We overrule this assignment of error.
 Defendant also argues that the trial court erred by not
declaring a mistrial after the State argued facts not in evidence
during closing arguments to the jury. More precisely, defendant
takes issue with the State's references to his alleged flight from
the scene of the crime even though the trial court had refused to
give a jury instruction concerning defendant's flight. Although we
agree that the remarks were inappropriate, we do not believe that
in context they warrant a new trial.
In State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002), our
Supreme Court recognized the need to strike a balance between
giving appropriate latitude to attorneys to argue heated cases and
the need to enforce the proper boundaries of closing argument and
maintain professionalism. Id. at 135, 558 S.E.2d at 108. In
assessing those boundaries, the Supreme Court listed four
requirements for a closing argument: that it (1) be devoid of
counsel's personal opinion; (2) avoid[s] name-calling and/or
references to matters beyond the record; (3) be premised on logical
deductions, not on appeals to passion or prejudice; and (4) be
constructed from fair inferences drawn only from evidence properly
admitted at trial. Id. Such requirements must be viewed in light
of the well-established principle that prosecutors are afforded
wide latitude in presenting closing arguments to the jury. See
State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002), cert.
denied, __ U.S. __, 155 L. Ed. 2d 681 (2003). However, as theJones court noted, 'wide latitude' has its limits. Jones, 355
N.C. at 129, 558 S.E.2d at 105.
Here, defense counsel interposed a timely objection to each
reference that the State made to defendant's alleged flight; thus,
we review the court's rulings for abuse of discretion. Jones, 355
N.C. at 131, 558 S.E.2d at 106. A prosecutor's improper remark
during closing arguments does not justify a new trial unless it is
so grave that it prejudiced the result of the trial. State v.
Westbrooks, 345 N.C. 43, 70, 478 S.E.2d 483, 500 (1996). Such
prejudice is established only where the defendant can show that the
prosecutor's comments so infected the trial with unfairness as to
make the resulting conviction a denial of due process. State v.
Morston, 336 N.C. 381, 405, 445 S.E.2d 1, 14 (1994) (citations and
quotation marks omitted).
Here, the prosecutor twice referred to evidence that defendant
was seen fleeing from the scene of the crime, when in fact
defendant was only seen jumping over a nearby fence, and the trial
court had refused to give a jury instruction on the alleged flight.
Although we agree with defendant that the prosecutor should not
have mentioned defendant's alleged flight, we cannot agree that the
error is so grave that it prejudiced the result of the trial.
Westbrooks, 345 N.C. at 70, 478 S.E.2d at 500. Defendant argues
that he should receive a new trial because this Court cannot say
that there can be no reasonable possibility that a different result
would have been reached, in the absence of these comments. The
standard of review, however, is abuse of discretion prejudicing the
outcome. Defendant has not clarified, nor have we been able toascertain, how the improper comments rise to the level of those
that our courts have found to be prejudicial in other cases. E.g.,
State v. Allen, 353 N.C. 504, 508, 546 S.E.2d 372, 374 (2001) (new
trial granted where prosecutor told jury during closing arguments
that they had been allowed to hear a certain piece of the State's
evidence because the Court found [the evidence was] trustworthy
and reliable . . . . If there had been anything wrong with that
evidence, you would not have heard that; court determined that the
statement traveled outside the record); State v. Jordan, 149 N.C.
App. 838, 843, 562 S.E.2d 465, 468 (2002) (mistrial granted where
the prosecutor compared defendant's counsel to Joseph McCarthy; the
prosecutor thoroughly undermined [the defendant's] defense by
casting unsupported doubt on counsel's credibility and erroneously
painting defendant's defense as purely obstructionist). Here, the
jury was able to analyze the evidence in so discerning a manner as
to find defendant not guilty of discharging a firearm into occupied
property, while finding him guilty of possessing a firearm. In
sum, we do not think that the trial court abused its discretion in
refusing to declare a mistrial.
 Defendant next argues that there was insufficient evidence
to infer that he possessed a firearm, and the fact that the jury
did not find him guilty of firing into an occupied residence
suggests that the jury was confused by the charges since no
evidence was presented that would show [defendant] in possession of
a firearm. As discussed above, the evidence on the bag that
tended to show defendant had a weapon supported the possessioncharge, but the jury may not have been persuaded that he fired
those particular shots. We believe that the jury's determination
that defendant was not guilty of shooting into Barnes' home could
indicate the jury's careful deliberation, rather than any confusion
on their part. The decision to grant or deny a motion to set
aside the verdict is within the sound discretion of the trial court
and is not reviewable absent a showing of an abuse of that
discretion. State v. Serzan, 119 N.C. App. 557, 561-62, 459
S.E.2d 297, 301 (1995), cert. denied, 343 N.C. 127, 468 S.E.2d 793
(1996). When the evidence at trial is sufficient to support the
jury's verdict, there is no abuse of discretion in the trial
court's denial of defendant's motion to set aside the verdict. Id.
Because we have held that the evidence was sufficient to support
the jury's verdict, there is no abuse of discretion, and
defendant's assignment of error is overruled.
 This Court, on its own motion, requested that the parties
file any additional arguments that they deemed appropriate
regarding issues raised by the indictment for habitual felon
(01CRS009113), which was not originally in the record on appeal.
In response, defendant argues that the indictment violates his
constitutional rights by utilizing the same felony charge as the
basis for his underlying conviction for possession of a firearm by
a convicted felon and as one of the three underlying felonies used
to elevate him to habitual felon status. We do not agree.
More specifically, defendant argues that he was impermissibly
subjected to double jeopardy because the court used the offense ofpossession with intent to sell and deliver cocaine to support both
the underlying substantive felony (the felon portion of the
offense of felon in possession of a firearm) and the habitual felon
indictment. Our courts have determined that elements used to
establish an underlying conviction may also be used to establish a
defendant's status as a habitual felon. State v. Misenheimer, 123
N.C. App. 156, 158, 472 S.E.2d 191, 192-93 (1996), cert. denied,
344 N.C. 441, 476 S.E.2d 128 (1996). As the relevant statutes do
not indicate otherwise, we are bound to follow this ruling and
reject defendant's argument. N.C. Gen. Stat. §§ 14-7.1 & 7.6
For the reasons set forth above, we find no prejudicial error
in defendant's conviction.
No Prejudicial Error.
Judges McGEE and STEELMAN concur.
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