An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-559


Filed: 18 May 2004


         v.                        Mecklenburg County
                                No. 02 CRS 204408

    Appeal by defendant from judgment entered 31 October 2002 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

    William B. Gibson, for defendant-appellant.

    CALABRIA, Judge.

    A jury found Deon Maurice Steele (“defendant”) guilty of possessing a weapon of mass death and destruction. See N.C. Gen. Stat. § 14-288.8 (2001). The trial court sentenced defendant within the applicable presumptive range to a term of twenty to twenty-four months' imprisonment. Defendant filed timely notice of appeal.
    On 29 January 2002, defendant possessed a Winchester 1400 semi-automatic twelve-gauge shotgun with a sawed-off barrel measuring fourteen inches in length. State's witness Mary Garner testified that on the day in question, she saw defendant point the gun at his mother during an argument in Garner's residence. Garnerran out of her back door to call the police and returned to her residence as the police arrived. Defendant was standing outside on her porch, but the gun was gone. After obtaining Garner's permission to search the residence, police found the shotgun under her daughter's mattress. Charlotte Police Officer P.M. Ensminger searched defendant and found a spent Winchester twelve-gauge shotgun shell in his pocket. Expert witness Todd Nordhoff of the Charlotte-Mecklenburg Crime Laboratory measured the length of the shotgun's barrel and determined that the shell found on defendant's person had been fired from the gun.
    On appeal, defendant claims that the indictment under which he was tried contained a fatal defect depriving the trial court of jurisdiction. He notes that North Carolina law defines a weapon of mass death and destruction as, inter alia, “any shotgun with a barrel or barrels of less than 18 inches in length or an overall length of less than 26 inches[.]” N.C. Gen. Stat. § 14-288.8(c)(3) (emphasis added). In contrast to the disjunctive “or” contained in the statutory definition, the indictment returned by the grand jury charged defendant with possessing a shotgun having, conjunctively, “a barrel length of less than eighteen (18) inches and an overall length of less than twenty-six (26) inches.” (emphasis added). While acknowledging the body of precedent running counter to his position, defendant avers that the use of the conjunctive in the indictment should be deemed so misleading as to constitute a fatal defect. Defendant concedes he can cite no authority in support of his argument. See N.C.R. App. P. 28(b)(6) (2003).    We have previously endorsed the use of conjunctive language in an indictment where a statute prescribes alternative theories of criminal liability, as follows:
        'Where a statute sets forth disjunctively several means or ways by which the offense may be committed, a warrant thereunder correctly charges them conjunctively. The indictment     should not charge a party disjunctively or alternatively, in such a manner as to leave it uncertain what is relied on as the accusation against him. The proper way is to connect the various allegations in the indictment with the conjunctive term “and,” and not with the word “or.”'

State v. Armstead, 149 N.C. App. 652, 654-55, 562 S.E.2d 450, 452 (2002) (quoting State v. Swaney, 277 N.C. 602, 611-12, 178 S.E.2d 399, 405 (1970), overruled on other grounds by State v. Hurst, 320 N.C. 589, 593, 359 S.E.2d 776, 778-79 (1987)). Here, the statute at issue criminalizes possession of a shotgun having either “a barrel or barrels of less than 18 inches in length or an overall length of less than 26 inches[.]” N.C. Gen. Stat. § 14- 288.8(c)(3). Given the statute's creation of two disjunctive circumstances in which a shotgun will qualify as a weapon of mass death and destruction, the indictment properly alleged these alternatives “with the conjunctive term 'and,' and not with the word 'or.'” Armstead, 149 N.C. App. at 655, 562 S.E.2d at 452.
    Defendant next avers that the trial court erred in denying his motion to dismiss at the conclusion of the evidence. Incorporating his first argument regarding the conjunctive allegations of the indictment, defendant contends that “if the State were required to prove the conjunctive allegations in the indictment -- that theshotgun had 'a barrel length of less than eighteen (18) inches and an overall length of less than twenty--six (26) inches' -- the State's proof fails on the second measurement.” As explained above, the indictment's use of the conjunctive “and” did not oblige the State to prove both disjunctive theories of guilt created by the statute. Id. The prosecution adduced substantial evidence that the sawed-off shotgun brandished by defendant in Garner's home had a fourteen-inch barrel, qualifying it as a weapon of mass death and destruction under N.C. Gen. Stat. § 14-288.8(c)(3). Accordingly, the trial court did not err by denying defendant's motion to dismiss.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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