STATE OF NORTH CAROLINA
v
.
New Hanover County
Nos. 02 CRS 3556, 4649
COREY TYRONE SNEED
Attorney General Roy Cooper, by Assistant Attorney General
Lisa Granberry Corbett, for State.
Daniel Shatz for defendant-appellant.
WYNN, Judge.
Defendant Corey Tyrone Sneed appeals from judgments of the
trial court entered upon jury verdicts finding him guilty of
possession of a firearm by a felon and being a habitual felon.
Defendant contends the trial court erred in (1) failing to instruct
the jury on the exception to section 14-415.1(a) of the North
Carolina General Statutes, (2) denying Defendant's motion and
renewed motion to dismiss the habitual felon indictment, and (3)
failing to consider mitigating factors in sentencing. For the
reasons stated herein, we find no error by the trial court. The facts to this case have been previously set forth in the
original appeal. State v. Sneed, 161 N.C. App. 331, 588 S.E.2d 74
(2003), rev'd and remanded, 358 N.C. 538, 599 S.E.2d 365 (2004).
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Defendant argues in his third and fourth assignments of error
that the trial court erred by failing to instruct the jury on
possession of a firearm by a felon “on his lawful place of
business.” N.C. Gen. Stat. § 14-415.1(a) (2003). We do not agree.
This Court has previously held that the third paragraph of
section 14-415.1(a) of the North Carolina General Statutes,
“creates an exception to the offense by excluding from its
prohibition the possession of a firearm within one's own home or on
his lawful place of business.” State v. McNeill, 78 N.C. App. 514,
516, 337 S.E.2d 172, 173 (1985). When a statute creates a
substantive criminal offense, complete and definite in its
description, and by another provision in the same statute a certain
case is excepted, a defendant who is charged with the substantive
offense and seeks to avail himself of the exception has the burden
of bringing himself within the exception. Id. If the defendant
does not present evidence that he falls in the exception, then the
trial court need not instruct the jury on the exception provision
of the statute. State v. Dobbins, 277 N.C. 484, 504, 178 S.E.2d
449, 461 (1971).
Defendant argues that the exception regarding possession of a
firearm on his lawful place of business should have been instructed
to the jury. He contends that the exception stated in section14-415.1(a) of the North Carolina General Statutes which allows
felons to possess a firearm “on his lawful place of business”
applies to his situation. Police found the firearm under the
driver's seat of Defendant's car. Defendant used the car to go to
and from his three different businesses and for business purposes.
We must decide whether this constitutes “his lawful place of
business” for purposes of applying section 14-415.1(a) of the North
Carolina General Statutes. We hold that it does not.
The State contends that the “on his lawful place of business”
exception should be narrowly interpreted to be consistent with how
this Court has interpreted the term “home” in the same exception.
McNeill, 78 N.C. App. at 516, 337 S.E.2d at 173 (possession within
a hallway of a duplex house where Defendant resided not sufficient
to fall within the exception); State v. Locklear, 121 N.C. App.
355, 359, 465 S.E.2d 61, 64 (1996) (possession outside a trailer
the defendant owned but did not occupy not sufficient to fall
within the exception). We agree with the State that to include a
car used for business purposes in the exception would improperly
expand the exception.
There being no evidence purporting to bring Defendant within
the exception to the statute, the trial court was not required to
instruct the jury concerning possession of a firearm in the home or
lawful place of business. Dobbins, 277 N.C. at 504, 178 S.E.2d at
461.
Defendant argues in his sixth assignment of error that the
trial court erred by denying his motion to dismiss the habitualfelon indictment because one of the prior convictions was also an
element of the underlying offense. We disagree.
The State indicted Defendant on the charge possession of a
firearm by a felon. The State also indicted Defendant as obtaining
the status of a habitual felon. A defendant obtains the status of
habitual felon if he has been convicted of or pled guilty to three
felony offenses. N.C. Gen. Stat. § 14-7.1 (2003). Defendant
contends that the State could not use the same prior felony
conviction to charge both possession of a firearm by a felon and
habitual felon.
Although not precedent, we note that in an unpublished opinion
this Court previously held that the same felony can be used to
support both a conviction for possession of a firearm by a felon
and habitual felon. State v. Gordon, No. COA02-1575, 2003 N.C.
App. LEXIS 1689 (N.C. App. Aug. 19, 2003). In State v.
Misenheimer, this Court found that section 14-7.6 of the North
Carolina General Statutes did not prohibit the defendant's felony
sentence from being enhanced on the grounds that he was a habitual
felon, when elements necessary to prove that he was a habitual
felon were the same as those elements which were used to support
the underlying felony. State v. Misenheimer, 123 N.C. App. 156,
158, 472 S.E.2d 191, 192-93, cert. denied, 344 N.C. 441, 476 S.E.2d
128 (1996). The State may properly use the same felony to prove an
element of the possession of a firearm by a felon and as one of the
three felonies needed for habitual felon. Therefore, the trial
court committed no error. In the seventh and eighth assignments of error, Defendant
argues that the trial court abused its discretion by not sentencing
Defendant in the mitigated range. Defendant also argues that the
trial court erroneously believed Defendant was being sentenced for
past crimes, not the current charge. We find no error by the trial
court.
Findings in mitigation must be proved by a preponderance of
the evidence. State v. Canty, 321 N.C. 520, 523, 364 S.E.2d 410,
413 (1988). The defendant has the burden of proving that
mitigating factors are present. State v. Parker, 315 N.C. 249,
255, 337 S.E.2d 497, 500 (1985).
Although the trial court must consider all statutory
mitigating factors that are supported by the evidence, the trial
court weighs the credibility of the evidence and determines by the
preponderance of the evidence whether such factors exist. Canty,
321 N.C. at 523, 364 S.E.2d at 413. Also, the trial judge has wide
latitude in determining the existence of mitigating factors. Id.
at 524, 364 S.E.2d at 413. To prove that the trial court erred in
failing to find a mitigating factor, the evidence must show, “no
other reasonable inferences can be drawn from the evidence,” id.
and that the credibility of the evidence is evident as a matter of
law. Parker, 315 N.C. at 255, 337 S.E.2d at 500.
During sentencing, Defendant argued the following mitigating
factors: he had ties to the community, a positive employment
history, and he volunteered information about the gun to the
police. Evidence did indicate that Defendant alerted the police tothe presence of the gun. However, other reasonable inferences
could be drawn regarding Defendant's ties to the community and
employment history. Also, the trial court could have considered
that Defendant unreasonably believed the law did not apply to him.
Since the trial court sentenced Defendant in the presumptive range
it made no written findings of fact. N.C. Gen. Stat. § 15A-
1340.16(c) (2003). There is no evidence that the trial court did
not consider the mitigating factors or understand the charge being
sentenced. It is properly within the trial court's discretion to
determine that the mitigating factors do not outweigh the
aggravating ones. Canty, 321 N.C. at 524, 364 S.E.2d at 413.
Therefore, we find no error.
Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
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