Appeal by defendant from judgment dated 20 February 2003 by
Judge J. Gentry Caudill in Gaston County Superior Court. Heard in
the Court of Appeals 28 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General Kay
Linn Miller Hobart, for the State.
Anne Bleyman for defendant-appellant.
BRYANT, Judge.
Jeffrey Scott Mincey (defendant) appeals a judgment dated 20
February 2003 entered consistent with a jury verdict finding him
guilty of possession of a firearm by a felon, misdemeanor
intoxicated and disruptive behavior, and misdemeanor resisting,
delaying or obstructing a public officer. Defendant was sentenced
to 14 to 17 months imprisonment.
On 9 October 2002, defendant's girlfriend (Buchanan), drove
with her daughter, defendant, and defendant's sister (Stroup) from
Gastonia to Lincolnton. Stroup was trying to sell her gun because
she needed money to get her two sons out of jail and had asked
Buchanan to give her a ride to a potential buyer in Lincolnton.
After learning that the potential buyer was unable to purchase thegun that day, Stroup asked Buchanan to drive her to the Gastonia
County jail to see her sons. Buchanan drove to Gastonia with
Stroup in the front seat together with Buchanan's daughter and
defendant in the backseat. When Stroup got into the vehicle, she
placed the gun next to her; defendant had been drinking; and there
was also a twelve-pack of beer on the floor of the vehicle.
Upon their arrival at the jail, Buchanan parked the vehicle
and Stroup went inside. Buchanan's daughter changed to the front
passenger seat. During this period, Officer Shane Johnson (Officer
Johnson), a patrolman with the Gastonia Police Department, entered
the parking lot. On hearing a male yell “bitch” from the direction
of Buchanan's vehicle, Officer Johnson approached the vehicle where
he observed defendant in the backseat, behind the front passenger's
seat, leaning forward with his arm repeatedly reaching forward
between the seat and the door. When Officer Johnson asked
defendant to get out of the vehicle, he observed a .357 handgun
between the passenger's seat and the door.
Officer Johnson thereafter took defendant to the magistrate's
office and charged him with several offenses, including possession
of a firearm by a felon. While there, defendant spontaneously
stated, “I told them to hide that thing.” Defendant's remark was
not in response to any question. At the time of the statement,
defendant was aware that he had been charged with possession of a
firearm by a felon.
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Defendant raises two issues on appeal, which are whether thetrial court: (I) committed plain error by permitting defendant to
stipulate to a prior conviction without providing a limiting jury
instruction; and (II) erred in denying defendant's motion to
dismiss for insufficiency of evidence regarding constructive
possession of a firearm.
I
Defendant argues the trial court committed plain error by
permitting defendant to stipulate to a prior conviction without
providing a limiting jury instruction.
As a general rule, failure to object to alleged errors
precludes raising those errors on appeal. N.C.R. App. P. 10(b)(1).
To be entitled to relief, a defendant must show that plain error
was committed.
State v. Faison, 128 N.C. App. 745, 497 S.E.2d 111
(1998). Before granting relief based on plain error, the appellate
court must be convinced that absent the error the jury probably
would have reached a different verdict.
Id.
“The plain error rule . . . is always to be applied cautiously
and only in the exceptional case where, after reviewing the entire
record, it can be said that the claimed error is a fundamental
error, something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done.”
State v. Odom, 307
N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotations
omitted) (citations omitted). A defendant alleging plain error has
a much heavier burden than that imposed upon a defendant who has
preserved his rights by timely objection pursuant to N.C. Gen.
Stat. § 15A-1443.
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80,83 (1986). To show plain error and meet his burden, the defendant
must establish that “there is a reasonable possibility that, had
the error in question not been committed, a different result would
have been reached at the trial out of which the appeal arises.”
N.C.G.S. §15A-1443(a) (2003).
In the instant case, defendant entered into a stipulation as
to his prior felony of breaking and entering. At the charge
conference, defense counsel entered into the following colloquy:
[DEFENSE]: I don't know if there is
anything . . . in terms of
deciding his guilt or
innocence, not letting that
prior conviction decide that.
Of course it is an element of
the crime . . . it has to be
proven but other than for those
limited purposes.
COURT: I don't know of a pattern
instruction that would fit into
what you are requesting . . .
nor do I feel it would be
appropriate. So unless you
have something that you want to
submit for me to consider, I
will decline to make such an
instruction. Anything else?
[DEFENSE]: “No, Your Honor.”
After the trial court charged the jury, the court asked
counsel whether there were any specific requests for corrections or
additions to the charge. Defense counsel replied, “There will be
nothing from the defense, Your Honor.” The jury instruction in
pertinent part included the following language:
[T]he State and the defendant have agreed that
certain facts shall be accepted by you as true
without further proof. The agreed facts in
this case are that the defendant hadpreviously been convicted of breaking and
entering in Lincoln County on September 9th of
1998. Since the parties have so agreed, you
are to take these facts as true for the
purpose of this case. Now the second element
is that thereafter the defendant possessed a
handgun. So the first element is that the
defendant was convicted of a felony. The
second element, that thereafter the defendant
possessed a handgun.
During deliberations, the jury requested a written instruction
regarding possession of a firearm by a felon, which the trial court
provided, including defendant's stipulation to felony breaking and
entering. The trial court asked both parties whether there were
any objections to the jury's request. Defense counsel stated, “No,
Your [H]onor.”
Defendant now argues on appeal that the trial court's failure
to provide a limiting instruction on defendant's stipulation was
plain error. Defendant neither objected to the trial court's
instruction nor specifically requested a limiting instruction,
despite an invitation by the trial court to do so. However, unless
a defendant expressly requests a limiting instruction as to his
prior conviction, the trial court is not required to provide one.
State v. Gardner, 68 N.C. App. 515, 521-22, 316 S.E.2d 131, 134
(1984),
aff'd, 315 N.C. 444, 340 S.E.2d 701 (1986).
Here, defendant stipulated to his prior felony conviction.
Absent defendant's stipulation, the State would have been required
to prove the prior felony conviction as an element of the crime
charged. Defendant however fails to show any error by the trial
court. Moreover, even assuming
arguendo the trial court erred in
failing to give a limiting instruction, defendant cannot showprejudice: that is, a reasonable probability a different outcome
would have been reached absent the alleged error. Defendant's
assignment of error is overruled.
II
Defendant next argues the trial court erred in denying
defendant's motion to dismiss for insufficiency of the evidence to
establish constructive possession of a firearm.
When ruling on a motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State,
giving the State every reasonable inference to be drawn therefrom.
State v. Cockerham, 155 N.C. App. 729, 574 S.E.2d 694 (2003). The
trial court must deny the motion if the State has offered
substantial evidence to prove each essential element of the crime
charged.
Id. at 733, 574 S.E.2d at 698. “Substantial evidence is
such relevant evidence as a reasonable mind would find adequate to
support a conclusion.”
State v. Franklin, 327 N.C. 162, 171, 393
S.E.2d 781, 787 (1990).
Possession of a firearm by a felon has the following essential
elements: one who
(1) has previously been convicted of . . . a
felony in North Carolina, . . . , and
(2) purchases, owns, possesses, or has in his
or her custody, care, or control outside
his or her own home or place of business
[and has]
(3) any handgun, any weapon of mass death and
destruction, or any other firearm with a
barrel length of less than 18 inches or
an overall length of less than 26 inches.
Robert L. Farb,
N.C. Crimes, at 402 (5th ed. 2001) (citing 1
N.C.P.I.--Crim. 254A.11 (2000));
see also N.C.G.S. § 14-415.1(a)(2003).
Possession of a firearm may be actual or constructive.
State
v. Boyd, 154 N.C. App. 302, 307, 572 S.E.2d 192, 196 (2002). “A
person has constructive possession of an item when the item is not
in his physical custody, but nonetheless [he] has the power and
intent to control its disposition.”
Id. (citations omitted). When
one does not have exclusive control of the location where an item
is found, constructive possession may not be inferred without any
other incriminating circumstances.
State v. Clark, 159 N.C. App.
520, 525, 583 S.E.2d 680, 683 (2003);
see also State v. Alston, 131
N.C. App. 514, 519, 508 S.E.2d 315, 319 (1988) (evidence held to be
insufficient where gun found lying on the console between the
driver and the defendant as both had equal access to the gun
purchased by the car owner).
However, in
Boyd,
supra, where the defendant had been charged
with possession of a firearm by a felon, our Court found the
following evidence sufficient to show that the defendant, a felon,
constructively possessed a firearm where: the gun was found under
the front passenger seat of a car in which the defendant was
sitting; the only other person in the car was the driver; the
driver and the defendant did not have equal access to the gun;
officers saw the defendant reaching under the seat; the driver did
not own the gun; and the gun had been seen at the home of the
defendant's mother.
In the instant case, while defendant neither owned the handgun
nor the vehicle in which the handgun was found, the evidenceclearly showed defendant had knowledge of the handgun located
between the front passenger seat and the door of the vehicle, and
that defendant repeatedly reached from the back seat toward the
area where the handgun was found. Also, at the time of defendant's
arrest, he stated, “I told them to hide that thing.” Viewed in the
light most favorable to the State, this evidence is sufficient to
establish a reasonable inference that defendant constructively
possessed the handgun.
The trial court therefore did not err in denying defendant's
motion to dismiss.
No error.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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