An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-920


Filed: 1 April 2003


         v.                        Lenoir County
                                No. 00 CRS 52912

    Appeal by defendant from judgment entered 31 January 2002 by Judge James E. Ragan, III in Lenoir County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State.

    Leslie G. Fritscher for defendant-appellant.

    ELMORE, Judge.

    Defendant Christopher Lamont Williams was charged with possession of a firearm by a felon. The State's evidence tends to show that on 4 November 2000, Barry Kent Price, a K-9 Officer with the Kinston Police Department, observed defendant driving a vehicle. The vehicle was registered to defendant's parents. Officer Price suspected and subsequently verified that defendant's driver's license was revoked. As a consequence, Officer Price radioed for a unit to assist while he responded to another call. Dennis Downhour, another officer with the Kinston Police Department, initiated a traffic stop after hearing Officer Price's call for assistance. When Officer Downhour stopped the vehicledriven by defendant, he observed at least one other passenger in the vehicle. Initially, defendant gave the officer a false name. Officer Downhour called for backup, and Officer Timothy Dilday, also a Kinston police officer, responded to the scene. When Officer Dilday arrived, Officer Downhour placed the defendant under arrest for giving a false name, and placed him in his police cruiser. Officer Dilday then requested that the vehicle's passenger exit the vehicle, and proceeded to search its interior. During the search, Officer Dilday found a loaded pistol in the vehicle's unlocked glove compartment.     
    At trial, defendant admitted to having been convicted of felony possession with intent to sell and deliver a controlled substance in 1998. He testified that on 4 November 2000, he did not know that his father's handgun was in the car and did not give Officer Downhour a false name when he was stopped. Defendant's father testified that he had locked his handgun in the vehicle's glove compartment on 4 November 2000, but had forgotten to inform defendant of the gun's location in the vehicle. Defendant denied unlocking the glove compartment on 4 November 2000.
    A jury found defendant guilty of possession of a firearm by a felon. The trial court sentenced defendant to fifteen to eighteen months imprisonment. Defendant appeals.
    On appeal, defendant first argues that the trial court erred by admitting evidence that he had the firearm in question in his residence on 10 September 2000, almost two months before the events giving rise to the case sub judice. Specifically, defendantcontends that such evidence was inadmissible under N.C.R. Evid. 403 and 404(b). The trial court admitted this evidence, over defendant's objection, following a voir dire hearing.
    We note, however, that it appears that defendant has not preserved this issue for appellate review. In the instant case, defendant testified on direct examination about the 10 September 2000 incident, during which he was in possession of, and fired, the firearm in question at his home. It is well-settled that “[w]here evidence is admitted over objection, and the same evidence . . . is later admitted without objection, the benefit of the objection is lost.” State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). As defendant himself testified about his previous possession of the subject firearm, we conclude that he has lost the benefit of his earlier objection to the State's evidence in that same regard.
    Defendant next argues that the trial court erred in denying his motion to dismiss for insufficient evidence. Specifically, defendant contends that the evidence failed to disclose “other incriminating circumstances” sufficient for the jury to find that he had constructive possession of the subject firearm.
    A trial court properly denies a motion to dismiss based upon insufficient evidence when there is substantial evidence to support each essential element of the offense charged. State v. Roseborough, 344 N.C. 121, 126, 472 S.E.2d 763, 766 (1996). “The evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable inference to bedrawn from that evidence.” Id. “Substantial evidence has been defined as 'that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” State v. Carrilo, 149 N.C. App. 543, 548, 562 S.E.2d 47, 49 (2002)(quoting State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981)).
    To be convicted of possession of a firearm by a convicted felon under N.C. Gen. Stat. § 14-415.1 (2001), the State must show that the defendant, who previously “has been convicted of a felony,” subsequently purchased, owned, possessed, or had custody, care or control of “any handgun or other firearm with a barrel length of less than eighteen inches or an overall length of less than twenty-six inches . . . .” As this Court has previously stated,
        Possession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. 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.
State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). In State v. Dow, this Court further expounded,
        An inference of constructive possession . . . arise[s] 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.70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984)(quoting State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974); citing State v. Wolfe, 26 N.C. App. 464, 467, 216 S.E.2d 470, 473, cert. denied, 288 N.C. 252, 217 S.E.2d 677 (1975)).
    In the case sub judice, defendant, an admitted felon, borrowed his father's vehicle, and was, therefore, the custodian of said vehicle when stopped by Officer Downhour on 4 November 2000. Contrary to defendant's contention, this fact alone, without any incriminating circumstance, is sufficient to permit an inference by a reasonable fact finder that defendant had knowledge and possession of the handgun found in the vehicle's glove compartment at the time of the traffic stop. See State v. Dow, 70 N.C. App. at 85, 318 S.E.2d at 886. The evidence that (1) the gun had been locked in the glove compartment by defendant's father on 4 November 2000; (2) the glove compartment was unlocked at the time defendant was stopped later on that same day; and (3) defendant was in possession of the key to unlock that glove compartment, further supports the inference that defendant had knowledge and possession of the handgun in question. Finally, while the evidence tends to show that there was a front-seat passenger in the vehicle, there is no evidence, nor any argument presented by defendant, that the passenger had possession of the gun. As there was substantial evidence to support each essential element of the offense charged, we conclude that the trial court properly denied defendant's motion to dismiss.
    Having so concluded, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***