STATE OF NORTH CAROLINA
v. Graham County
No. 02CRS50034
LISA DENENE JENKINS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General J. Philip Allen, for the State.
William D. Auman for defendant-appellant.
HUNTER, Judge.
Lisa Denene Jenkins (“defendant”) was found guilty of
possession of a firearm by a felon. She was sentenced to a minimum
term of thirteen months and a maximum term of sixteen months.
The State presented evidence tending to show that on 25
January 2002, Donnie Burchfield, a deputy sheriff of the Graham
County Sheriff's Department (“Deputy Burchfield”), found the
signature of defendant on a pawn ticket in the files of the Blue
Beacon Pawn Shop. The pawn ticket reflected that defendant had
pawned three guns on 24 September 2001. Deputy Burchfield asked
Teresa Lewis (“Lewis”), co-owner of the pawn shop, to show him one
of the guns. Lewis showed him a .38 handgun. Lewis told him that
defendant came into the shop with three guns and pawned them forthe sum of $300.00. Lewis identified defendant out of a
photographic lineup as the person who pawned the guns. Lewis gave
similar testimony and also identified defendant in court as the
person who pawned the guns.
Through the testimony of Wanda Brooms, Clerk of Superior Court
of Graham County and official custodian of criminal records, the
State admitted into evidence a certified copy of a judgment showing
that defendant, born 15 August 1967, had been convicted of the
felony of sale or delivery of a Schedule VI controlled substance.
Defendant testified that she accompanied Rick Muzzy (“Muzzy”)
to the Blue Beacon Pawn Shop on 24 September 2001 and that Muzzy
pawned three guns which he had purchased from her. She signed the
pawn ticket while Muzzy browsed the pawn shop. She was told by the
pawn shop operator that she would not get into trouble by signing
the pawn ticket.
Muzzy testified for defendant that he purchased three guns
from defendant in August 2001 and that he pawned them at the Blue
Beacon Pawn Shop on 24 September 2001. He did not sign the pawn
ticket because the guns were still registered to defendant.
Defendant brings forward three assignments of error. All
three are overruled for the following reasons.
First, defendant contends the court committed plain error by
permitting cross-examination of her regarding a prior conviction
for criminal trespass. Plain error is defined as a
“'fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to adenial of a fundamental right of the accused,'
or the error has '“resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial,”' or where the error is such as to
'seriously affect the fairness, integrity or
public reputation of judicial proceedings' or
where it can be fairly said 'the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982)). The error asserted by defendant does not amount to plain
error under this definition. Rule 609(a) of the Rules of Evidence
allows impeachment by evidence of a prior conviction “if elicited
from the witness or established by public record during cross-
examination or thereafter.” N.C. Gen. Stat. § 8C-1, Rule 609(a)
(2003). Here, the prosecutor elicited defendant's admission on
cross-examination that she had been convicted of the offense. The
prosecutor also confronted her with the public record of the
conviction. The court therefore properly admitted the evidence.
Second, defendant contends the court committed plain error by
instructing the jury, in response to its request for further
definition of the principle of possession, that “[i]f you've got
it, if you've got control of it, if you've got it in your hand,
that's possessing it.” She argues that the jury should have been
instructed pursuant to 1 N.C.P.I._Crim. 104.41 (1998) that one has
possession of an item when one is “aware of its presence, and
. . . has both the power and intent to control its disposition or
use.” We conclude the court did not commit plain error. Although
the court could have defined the term more formally, the definitiongiven by the court comports with the definition that defendant
asserts should have been given.
Third, defendant contends the court erred by failing to
dismiss the charges for insufficient evidence. Appellate Rule
10(b)(3) provides that “[a] defendant in a criminal case may not
assign as error the insufficiency of the evidence to prove the
crime charged unless he moves to dismiss the action, or for
judgment as in case of nonsuit, at trial.” N.C.R. App. P.
10(b)(3). Rule 10(b)(3) further provides that a motion to dismiss
made at the close of the State's evidence is waived if the
defendant presents evidence, and that if the defendant fails to
move to dismiss at the close of all the evidence, the right to
challenge on appeal the sufficiency of the evidence is waived. Id.
Here, by presenting evidence defendant waived her motion to dismiss
made at the close of the State's evidence. State v. Griffin, 136
N.C. App. 531, 544, 525 S.E.2d 793, 802-03 (2000). Defendant did
not make a motion to dismiss at the close of all the evidence.
Consequently, she waived appellate review of the question of the
sufficiency of the evidence to support the conviction. State v.
Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988).
Assuming, arguendo, defendant had made a motion to dismiss at
the close of all the evidence, we nevertheless conclude the
evidence presented by the State is sufficient to support the
conviction. The testimony of the pawn shop owner established that
defendant brought the guns into the pawn shop and pawned them.
This testimony shows that defendant exercised dominion and controlover the guns and, therefore, that defendant possessed them. The
evidence is uncontradicted that defendant was a convicted felon at
the time she possessed the guns. The evidence therefore
established all of the elements of the offense and the court
properly denied the motion to dismiss.
No error.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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