State v Washington, 168 NC App 242 (03-1522) 01/18/2005

Appeal by defendant from judgment entered 7 August 2003 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 January 2005.

Attorney General Roy Cooper, by Assistant Attorney General Scott T. Stroud, for the State.

David J. P. Barber, for defendant-appellant.

CALABRIA, Judge.

    Lavant Voltaire Washington (“defendant”) was charged with possession of a firearm by a felon. The State presented evidence which tended to show: On the night of 14 March 2002, Officer J. M. Rendon (“Officer Rendon”) of the Charlotte-Mecklenburg Police Department responded to a call that there were three black men looking into cars in a parking lot across the street from 101 Kingsford Drive. Upon arriving at the scene, Officer Rendon observed two black men in the parking lot. As he got out of his car, the two men began walking. Officer Rendon asked both males to stop, but the defendant walked past him. The officer yelled for defendant to stop, but defendant kept walking. Defendant looked asif he was trying to hide something on the right side of his body, and he walked to a tree and placed something silver behind it. Officer Rendon, with the help of another officer on the scene, then stopped and detained defendant.
    Officer Rendon then walked over to the tree and found behind it a gun with a silver barrel. No other items were behind the tree. Officer Rendon secured the gun and locked it inside of his patrol vehicle. Officer Rendon then placed defendant under arrest and performed a search incident to arrest. Officer Rendon discovered ten bullets in defendant's coat pocket. While Officer Rendon was trying to put defendant into the police vehicle, defendant physically resisted and began cursing at Officer Rendon. While being transported to the police station, the defendant said, "I'll carry a gun for as long as I live." At the end of trial, the defendant stipulated that he had a prior felony conviction. The jury found defendant guilty as charged, and the trial court sentenced him to a term of 20-24 months' imprisonment. Defendant appeals.
I.    Denial of Motion to Dismiss
    On appeal, defendant argues the trial court erred in failing to grant his motion to dismiss. Specifically, defendant contends that there was insufficient evidence that he was in possession of the gun. We disagree. The standard for review for a motion to dismiss premised upon insufficient evidence was recently reiterated in State v. Alexander:
        Upon a defendant's motion to dismiss, the court must consider whether the State haspresented substantial evidence of each essential element of the crime charged. Substantial evidence is such relevant evidence that a reasonable mind might accept as sufficient to support a conclusion. In examining the evidence, the court must view any contradictions or discrepancies in the light most favorable to the State, allowing all reasonable inferences to be drawn therefrom.
152 N.C. App. 701, 705, 568 S.E.2d 317, 319 (2002) (citations omitted).
    Possession can be either actual or constructive. State v. Boyd, 154 N.C. App. 302, 307, 572 S.E.2d 192, 196 (2002). This Court has explained,
        Constructive possession of contraband material exists when there is no actual personal dominion over the material, but there is an intent and capability to maintain control and dominion over it. Where sufficient incriminating circumstances exist, constructive possession of the contraband materials may be inferred even where possession of the premises is nonexclusive. Evidence placing the accused within close proximity to the contraband may support a jury's conclusion that the contraband was in the accused's possession, thereby justifying the denial of a motion to dismiss.
State v. Kraus, 147 N.C. App. 766, 770, 557 S.E.2d 144, 147-48 (2001) (citations omitted).
    In the case sub judice, defendant continued walking after the police ordered him to stop, attempted to hide something on the right side of his body, walked over to a tree, and placed something silver behind it. Shortly thereafter, Officer Rendon discovered a gun with a silver barrel behind the tree. Later, during a search incident to arrest, ten bullets were found in defendant's coatpocket, and while being transported to the police station defendant stated, "I'll carry a gun for as long as I live." In the light most favorable to the State, we hold that there was substantial evidence that defendant had possession of the gun such that the trial court did not err in denying defendant's motion to dismiss.     No error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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