1. Firearms and Other Weapons_possession of firearm by felon_penalty for
underlying offense_substantial right not affected
The trial court did not err by denying defendant's motion to dismiss an indictment for
possession of a firearm by a felon where the indictment did not state the penalty for the
underlying conviction. The provision of N.C.G.S. § 14-415.1(c) that requires the indictment to
state the penalty is not material and does not affect a substantial right. Defendant is no less
apprised of the conduct which is the subject of the accusation than he would have been if the
penalty had been included.
2. Evidence_possession of firearm by felon--probation for underlying offense
revoked_relevant
Evidence that defendant's probation had been revoked was admissible in a prosecution
for possession of a firearm by a felon. The evidence was relevant to proving defendant's status
as a felon and the court's limiting instructions were sufficient to cure any prejudice.
3. Firearms and Other Weapons_possession by felon_no instruction on justification
The trial court did not err by refusing to give an instruction on justification in a
prosecution for possession of a firearm by a felon. Defendant was involved in an ongoing
dispute, but there was no evidence that he was under an imminent threat of death or injury when
he decided to carry a gun.
Judge WYNN concurs in the result.
Attorney General Roy Cooper, by Assistant Attorney General
June S. Ferrell, for the State.
Reita P. Pendry for defendant-appellant.
TIMMONS-GOODSON, Judge.
Wallace Antijuan Boston (“defendant”) appeals his convictions
of second-degree trespass and possession of firearms by a felon.
For the reasons stated herein, we conclude that defendant receiveda trial free of prejudicial error.
The factual and procedural history of this case is as follows:
In June 1997 Michael Godwin (“Godwin”), deputy director for the
Housing Authority of the City of Asheville (“Housing Authority”),
sent a letter to defendant banning him from all Housing Authority
properties, specifically the Deaverview Apartment complex
(“Deaverview”). The ban was based on a prior, dismissed illegal
gambling charge against defendant, and an April 1996 conviction of
possession with intent to sell and distribute cocaine.
Deaverview resident Derrick Smith (“Smith”) testified at trial
that on 25 October 2000, he observed defendant walking through the
parking lot of the apartment complex carrying a pistol. Defendant
walked toward Jonathan Daniels (“Daniels”) who, upon observing
defendant, ran behind a parked car. Defendant chased Daniels
around the car several times. Smith heard defendant repeat the
following statement to Daniels two or three times: “Let's put the
guns down, put the guns down, let's fight like men.” Defendant
placed his gun on the ground. Daniels reached over the car, aimed
a gun at defendant who was in a crouched position behind the car,
and shot defendant four times. Soon thereafter, police officers
from the Asheville Police Department and paramedics arrived on the
scene.
Defendant was taken to Mission Hospital, where he was treated
for four gunshot wounds. On 9 November 2000, two arrest warrants
were issued, charging defendant with second-degree trespassing and
possession of firearms by a felon. Defendant was subsequently
arrested and indicted on these two charges. At the beginning of trial, defendant made an oral motion to
dismiss the charge of possession of firearms by a felon. Defendant
argued that the bill of indictment did not provide the penalty for
the felony of which defendant was previously convicted, and
therefore the indictment was fatally defective. The trial court
denied defendant's motion, and proceeded with the trial. The jury
subsequently found defendant guilty of second-degree trespassing
and possession of firearms by a felon. Defendant was sentenced to
a term of fifteen to eighteen months imprisonment. It is from
these convictions that defendant appeals.
As an initial matter, we note that defendant's brief contains
arguments supporting only three of the original five assignments of
error on appeal. The two omitted assignments of error are deemed
abandoned pursuant to N.C.R. App. P. 28(b)(6) (2004). We therefore
limit our review to those assignments of error addressed in
defendant's brief.
The issues presented for appeal are whether the trial court
erred by (I) denying defendant's motion to dismiss the indictment
for possession of firearms by a felon; (II) allowing the State to
introduce evidence that defendant's probationary sentence was
revoked; and (III) failing to instruct the jury that justification
is an affirmative defense to the charge of possession of firearms
by a felon.
[1] Defendant first argues that the trial court erred by
denying defendant's motion to dismiss the indictment for possession
of firearms by a felon. Defendant argues that the indictment isfatally defective because it fails to state the statutory penalty
for the underlying felony conviction. We disagree.
Defendant was charged pursuant to § 14-415.1 with possession
of firearms by a felon. Section 14-415.1(a) prohibits “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
. . . .” Specific information is required for a proper indictment
of possession of firearms by a felon. The indictment
must set forth the date that the prior offense
was committed, the type of offense and the
penalty therefor, and the date that the
defendant was convicted or plead guilty to
such offense, the identity of the court in
which the conviction or plea of guilty took
place and the verdict and judgment rendered
therein.
N.C. Gen. Stat. § 14-415.1(c) (2003) (emphasis added).
In the case sub judice, the indictment in question reads as
follows:
[T]he defendant named above unlawfully,
willfully and feloniously did did [sic] have
in his custody, care and control a handgun, on
October 25, 2000. The defendant is a
convicted felon in that on or about December
1, 1995, the defendant did commit the felony
of Possess [sic] with Intent to Sell or
Deliver Cocaine, in violation of G.S. 90-
95(a)(1), and that on or about April 9, 1996,
the defendant was convicted of that felony in
Buncombe County Superior Court, Asheville,
North Carolina, and was sentenced to 8-10
months in the North Carolina Department of
Corrections.
Thus, the indictment expressly contains all of the elements
required by § 14-415.1(c), except for the penalty for Possession
with Intent to Sell or Deliver Cocaine. Cocaine is classified as
a Schedule II controlled substance. See N.C. Gen. Stat. § 90-90(1)(d) (2003). Section 90-95, referenced in the statute,
provides as follows: “[A]ny person who violates G.S. 90-95(a)(1)
with respect to a controlled substance classified in Schedule I or
II shall be punished as a Class H felon. . . .” N.C. Gen. Stat. §
90-95(b)(1) (2003).
The facts of this case are analogous to State v. House, 295
N.C. 189, 244 S.E.2d 654 (1978). In House, the defendant
challenged a bill of indictment, arguing that it did not comply
with N.C. Gen. Stat. § 15A-644(a), which provided as follows:
(a) An indictment must contain:
(1) The name of the Superior Court in
which it is filed;
(2) The title of the action;
(3) Criminal charges pleaded as provided
in Article 49 of this Chapter,
Pleadings and Joinder;
(4) The signature of the solicitor, but
its omission is not a fatal defect;
and
(5) The signature of the foreman or
acting foreman of the grand jury
attesting the concurrence of twelve
or more grand jurors in the finding
of a true bill of indictment.
295 N.C. at 200, 244 S.E.2d at 660, citing N.C. Gen. Stat. § 15A-
644 (emphasis added). The indictment in question contained the
foreman's signature beneath the statement that the bill was found
a “true bill,” but contained no express attestation that twelve or
more grand jurors concurred in finding it a true bill. Id., 295
N.C. at 200-01.
Upon reviewing House, the Supreme Court stated the following:
“In determining the mandatory or directorynature of a statute, the importance of the
provision involved may be taken into
consideration. Generally speaking, those
provisions which are a mere matter of form, or
which are not material, do not affect any
substantial right, and do not relate to the
essence of the thing to be done so that
compliance is a matter of convenience rather
than substance, are considered to be
directory.”
While, ordinarily, the word “must” and
the word “shall,” in a statute, are deemed to
indicate a legislative intent to make the
provision of the statute mandatory, and a
failure to observe it fatal to the validity of
the purported action, it is not necessarily so
and the legislative intent is to be derived
from a consideration of the entire statute.
To interpret G.S. 15A-644 as requiring the
quashing of a bill of indictment under the
circumstances of this case would be to
attribute to the Legislature an intent to
paramount mere form over substance. This we
decline to do.
295 N.C. at 203, 244 S.E.2d at 661-62, quoting 73 Am. Jur. 2d,
Statutes, § 19.
In the case sub judice, we hold that the provision of § 14-
415.1(c) that requires the indictment to state the penalty for the
prior offense is not material and does not affect a substantial
right. Defendant is no less apprised of the conduct which is the
subject of the accusation than he would have been if the penalty
for the prior conviction had been included in the indictment. To
hold otherwise would permit form to prevail over substance. Thus,
the trial court did not err by denying defendant's motion to
dismiss the indictment.
[2] Defendant next asserts that the trial court erred by
allowing the State to introduce evidence that defendant's
probationary sentence for the possession with intent to sell anddistribute cocaine conviction was revoked, and that an active
sentence was imposed. We disagree.
The standard of review for this Court assessing evidentiary
rulings is abuse of discretion. State v. Meekins, 326 N.C. 689,
696, 392 S.E.2d 346, 350 (1990). North Carolina Evidence Rule
404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C, Rule 404(b) (2003). The rule has been
interpreted by North Carolina courts as “a clear general rule of
inclusion.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48,
54 (1990). Relevant evidence of other crimes, wrongs or acts by a
defendant are admissible subject to but one exception: “if its
only probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature of the
crime charged.” Id.
In the case sub judice, Elizabeth Whittenberger
(“Whittenberger”), a deputy clerk of superior court, testified on
direct examination by the State as follows:
Q: I'm going to show you two documents that
we will mark collectively as State's
Exhibit No. 2 and ask you if you will
identify those.
A: Okay. The first document that you're
showing me is a judgment suspending
sentence.
Q: Who does that document pertain to?
A: Wallace Boston.
. . . .
Q: And if you will look at - - And for what
conviction is that suspended judgment
for?
A: That is for Possession with Intent to
Sell Schedule II Cocaine, a felony.
Q: And if you will take a look at the second
document that's in there.
A: Okay. That's a revocation of the
judgment. It's a judgment and commitment
where Wallace Boston's suspended sentence
was revoked.
Q: And that's for the same charge, for
Possession with Intent to Sell and
Deliver Cocaine?
A: Correct.
MR. BROWN: Objection. Motion to strike
that statement, Your Honor.
THE COURT: I didn't hear all of the
statement. I'm sorry.
Q: I just said, and that is for the same
charge of Possession with Intent to Sell
Schedule II Cocaine.
THE COURT: And your objection as to that
question?
MR. BROWN: I'm not objecting to that
question. I'm objecting to her
answer. She didn't answer the
question. I think her answer
would be either it was or it
wasn't.
A: Well, I'm sorry you didn't hear me. I
said yes, it is the same conviction.
Q: And are both of these documents certified
and true copies?
A: Correct.
Q: And is that stamped “Certified” by you?
A: Yes, it is.
MR. MARTIN: Your Honor, the State would
move to enter State Exhibit No.
2 into evidence.
MR. BROWN: I'm going to object to part of
the exhibit.
THE COURT: Let me see State's Exhibit No.
2.
(PAUSE)
THE COURT: Come up here a minute.
(DISCUSSION OFF THE RECORD)
THE COURT: All right, ladies and gentlemen
of the jury, State's Exhibit
No. 2 is offered and received
into evidence for the limited
purpose of showing the
Defendant Wallace Boston's
status on the day in question
and for no other purpose.
It is unclear from this testimony whether defendant actually
made a Rule 404 objection to Whittenberger's testimony, and thus
whether defendant properly preserved this issue for review on
appeal. We see in the above exchange that defendant objected twice
during Whittenberger's testimony. His first objection came after
the State's question tying the Revocation of Judgment to
defendant's conviction of Possession with Intent to Sell and
Distribute Cocaine. Defendant objected to the form of
Whittenberger's answer. The second objection was to one of the two
documents entered into evidence as State's Exhibit No. 2. However,
because that objection was discussed off the record, we do not know
the substance of defendant's objection.
Assuming arguendo that defendant's second objection was based
on Rule 404, we conclude that the evidence was relevant for thepurpose of proving defendant's status as a convicted felon, and was
therefore admissible. To the extent that the evidence tended to
show that defendant committed inadmissible prior bad acts, i.e.,
that he violated the terms of his probation, we hold that the trial
court's limiting instructions to the jury were sufficient to cure
any prejudice against defendant. This assignment of error is
overruled.
[3] Defendant last argues that the trial court erred by
failing to instruct the jury that justification is an affirmative
defense to the charge of possession of firearms by a felon. We
disagree.
Recently, the federal courts have recognized justification as
an affirmative defense to possession of firearms by a felon. See
U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000). However, the
North Carolina Court of Appeals has specifically noted “that the
Deleveaux court limited the application of the justification
defense to 18 U.S.C. § 922(g)(1) cases (federal statute for
possession of a firearm by a felon) in 'only extraordinary
circumstances.'” State v. Napier, 149 N.C. App. 462, 465, 560
S.E.2d 867, 869, quoting Deleveaux, 205 F.3d at 1297.
In Napier, the defendant was a convicted felon who was
involved in an on-going dispute with his neighbor and the
neighbor's son. On or about 30 June 1999, the neighbor's son
discharged a shotgun directed over the defendant's property. The
neighbor's son continued this action for the next several days. On
3 July 1999, the defendant walked over to the neighbor's property
armed with a nine millimeter handgun in a holster on his hip toconfront the neighbor and the neighbor's son. The confrontation
escalated into a physical altercation and the defendant shot the
neighbor's son in the arm.
This Court declined to apply the Deleveaux rationale in Napier
because the evidence did not support a conclusion that the
defendant was under an imminent threat of death or injury. 149
N.C. App. at 465, 560 S.E.2d at 869. This Court reached this
conclusion despite evidence that the neighbor had been firing
bullets over the defendant's property and that the two parties
engaged in prior altercations. Id.
In the case sub judice, the evidence tended to show that
defendant and Daniels were engaged in an on-going conflict whereby
in the week prior to the shooting, Daniels threatened to kill
defendant, and on at least one prior occasion Daniels fired a gun
at defendant. However, the evidence also tends to show that on the
day of the shooting, defendant was observed walking through the
apartment complex carrying a pistol. The State's evidence also
tended to show that defendant chased Daniels around a parked car
with the gun in hand. Therefore, we hold that, as in Napier, there
is no evidence to support the conclusion that defendant was under
an imminent threat of death or injury when he made the decision to
carry the gun. Accordingly, the trial court did not err in failing
to instruct the jury on justification as an affirmative defense.
No error.
Judge ELMORE concurs.
Judge WYNN concurs in the result.
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