An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-801


Filed: 4 May 2004


         v.                            Graham County
                                    No. 02CRS50034

    Appeal by defendant from judgment entered 22 January 2003 by Judge Ronald K. Payne in Graham County Superior Court. Heard in the Court of Appeals 19 April 2004.

    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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