NO. COA03-1650

NORTH CAROLINA COURT OF APPEALS

Filed: 18 January 2005

    Appeal by defendant from judgment entered 30 April 2003 by Judge Wiley F. Bowen in Lee County Superior Court. Heard in the Court of Appeals 15 September 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.

    Russell J. Hollers, III, for defendant-appellant.

    LEVINSON, Judge.

    Defendant (James Murchison) appeals judgments entered upon his convictions of carrying a concealed weapon, possession of a firearm by a felon, and having the status of an habitual felon.
    The State's evidence at trial tended to show, in relevant part, the following: Keisha Spruill testified that the defendant had previously been her boyfriend, and was the father of her two children. In May 2002, Spruill and defendant lived together on Williams Street, in Sanford, North Carolina. On 24 May 2004defendant and Spruill were at the Williams Street residence when the defendant's uncle, Roy Gamble, arrived and asked to borrow Spruill's car. Spruill loaned Gamble her car and Gamble left, taking the defendant with him. Later that evening Spruill saw Gamble in her car, accompanied by defendant and one other passenger, Jonathan Owens. Spruill also testified that defendant did not own a gun, but that she had previously seen Gamble in possession of a gun.
    Officer Figurski of the Sanford Police Department testified that, while on patrol in Sanford during the evening of 24 May 2002, he received a report that individuals were loitering at a car wash in Sanford. When he drove to the car wash, he saw a car parked near the car wash area, with two men sitting in the front seat listening to the radio. Figurski checked the license plate numbers and determined that the license was assigned to a different vehicle. Accordingly, he approached the car and spoke with defendant, who was sitting in the driver's seat. When Figurski asked defendant for license and registration, defendant told him that he was not the owner or driver of the car, and showed Figurski a North Carolina identification card. The defendant also told Figurski that the car was being driven by “a friend” who had left them at the car wash. Figurski asked for permission to search the car and defendant said to “go ahead.” Upon searching the vehicle,Figurski found a loaded .38 caliber handgun under the driver's seat. Figurski issued a citation to defendant, charging him with carrying a concealed weapon. When Figurski filled out the citation, defendant gave an address on Hill Street, not Williams Street. Figurski did not speak with the other person in the vehicle during the encounter, and did not learn this person's name. Figurski also checked the car's vehicle identification number (VIN) and determined that it was uninsured and could not be legally driven. Figurski called a tow truck to remove the vehicle; when it arrived, defendant provided Figurski with the car keys, but kept the other keys on the key ring. Although the computer check of the car's VIN revealed that Spruill was the registered owner, defendant neither volunteered that Spruill was his girlfriend, nor that the “friend” who had been driving the car was his uncle, Gamble.
    Detective Eades of the Sanford Police Department testified that, after speaking with Figurski about the citation issued to defendant for carrying a concealed weapon, he checked defendant's criminal record. Upon Eades's determination that defendant had a prior felony conviction, defendant was charged with possession of a firearm by a felon. After his arrest, defendant was informed of his Miranda rights. The defendant chose to waive these rights and make a statement. In his statement, which was reduced to writing and signed by the defendant, he told Eades the following: Defendantlived on Hill Avenue in Sanford. On 24 May 2002 he and Owens were walking in Sanford, when they saw a “Tyrone Bethea” driving Spruill's car. Bethea picked them up and they drove to the car wash. At the car wash, Bethea left defendant and Owens to wait in Spruill's car, and defendant moved to the front seat to listen to the radio. Defendant also told Eades that he had not known there was a gun in the car, and that the gun was not his. Defendant did not mention Gamble in his written statement.
    Gamble testified for the defendant. He told the jury he was defendant's uncle. On 24 May 2002 he went to Spruill's house and borrowed her car. Defendant came with Gamble when he left Spruill's house, and they picked up Owens shortly thereafter. Gamble was the only driver of the car. Eventually he drove to the car wash, parked the car, and left to visit with some others. Defendant and Owens stayed in the car awaiting his return. Gamble testified that the gun found under the driver's seat belonged to him. When the group stopped at a convenience store, Gamble moved his gun from the dash and placed it under the driver's seat, where he mistakenly left it behind. He testified further that he had told Eades that the gun was his, but that Eades did not accurately record what Gamble said. Specifically, Gamble denied telling Eades the gun was defendant's, or that defendant had asked Gamble to lie and pretend the gun was his.     On cross-examination Gamble was questioned, without objection, about the written statement he gave to Eades. In this statement Gamble told Eades that the gun found in Spruill's car belonged to the defendant, who had asked Gamble to take the blame for the gun. Gamble told Eades that he would not do as the defendant requested because he had “too many other people that I have to be truthful towards and a job that relies on me being honest and truthful.” Although acknowledging on cross-examination that he had initialed the written statement, Gamble denied making the statements included therein. He reasserted that he had told Eades the gun was his, that his first statement was incorrect, and that when he went to the police station to provide a corrected statement, Eades would not meet with him.
    On rebuttal, Eades testified concerning Gamble's statement; this statement was identified as an exhibit and admitted without objection during Eades's rebuttal testimony. Eades testified that Gamble had told him that the gun was defendant's and that defendant had asked Gamble to lie about it. Eades also testified that he read the statement carefully to Gamble before Gamble signed it, and that Gamble never returned to the police station to make a second statement.
    Defendant was tried upon indictments charging possession of a firearm by a felon, carrying a concealed weapon, and being anhabitual felon. He was convicted as charged, and sentenced to an active prison term of 80 to 105 months. From these convictions and judgments defendant appeals.

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    Defendant argues first that the trial court erred by denying his motion to dismiss, on the grounds that the evidence was insufficient as a matter of law to submit the case to the jury.
    Upon a defendant's motion to dismiss for insufficiency of the evidence, the trial court determines “whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). In this regard:
        “Substantial evidence” is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion. . . . The reviewing court considers all evidence in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence. Evidentiary “[c]ontradictions and discrepancies are for the jury to resolve and do not warrant dismissal.”

State v. Garcia, 358 N.C. 382, 412-13, 597 S.E.2d 724, 746 (2004) (citing State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), and State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995), and quoting State v. Gibson, 342 N.C. 142, 150, 463S.E.2d 193, 199 (1995)). Further, “defendant's evidence may be considered only to the extent that it clarifies, explains, or is not inconsistent with the State's evidence.” State v. Compton, 90 N.C. App. 101, 104, 367 S.E.2d 353, 355 (1988).
    The essential elements of the offense of possession of a firearm by a felon are the: (1) purchase, ownership, possession, custody, care, or control; (2) of a “handgun or other firearm”; (3) by a person previously convicted of a felony. N.C.G.S. § 14-415.1 (2003). In the instant case, defendant challenges only the sufficiency of the evidence that he possessed the firearm.
    Under N.C.G.S. § 14-269(a1) (2003), the offense of carrying a concealed weapon may be proven by evidence that the defendant, unless in specified circumstances not applicable to the instant case, “willfully and intentionally [carried] concealed about his person any pistol or gun[.]” Carrying a concealed weapon necessarily requires possession of the firearm. Again, defendant does not contest that the gun was concealed, nor assert, e.g., that he had a concealed weapon permit. Rather, with respect to this offense, he again challenges only the evidence of possession.
    Possession may be either actual or constructive. State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). “When the defendant, 'while not having actual possession, . . . has the intent and capability to maintain control and dominion over the[property],' he has constructive possession of the item. This Court has previously emphasized that 'constructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury.'” State v. Glasco, 160 N.C. App. 150, 156-57, 585 S.E.2d 257, 262, disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003) (quoting State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001), and State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001)). “However, unless the person has exclusive possession of the place where the [item is] found, the State must show other incriminating circumstances before constructive possession may be inferred.” State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). In the instant case it is undisputed that several people had access to the car where the gun was found, and thus “the critical issue is whether the evidence discloses other incriminating circumstances sufficient for the jury to find defendant had constructive possession of the [gun].” State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001).
    Evidence was presented at trial from which the jury could find that the gun belonged to defendant and that defendant asked Gamble to lie about it. This is because Gamble's out-of-court statement to the police, admitted without objection or limiting instruction during the State's rebuttal examination of Detective Eades, couldbe considered as substantive evidence. See, e.g., State v. Featherson, 145 N.C. App. 134, 137, 548 S.E.2d 828, 831 (2001) (prior inconsistent statements admitted without objection properly considered substantive evidence); State v. Laws, 16 N.C. App. 169, 170, 191 S.E.2d 401, 402 (1972); but see State v. Sinclair, 45 N.C. App. 586, 263 S.E.2d 811, rev'd on other grounds, 301 N.C. 193, 270 S.E.2d 418 (1980) (inconsistent statements could not be considered as substantive evidence on question of nonsuit, despite lack of objection).
    Viewing Gamble's statement, which indicated defendant owned the gun, together with other evidence in the record that placed defendant in the proximity of the gun, we hold that the motion to dismiss was properly denied. There were, therefore, sufficient “additional incriminating circumstances”, such that the issues of defendant's guilt of possession of a firearm by a felon and carrying a concealed weapon were properly submitted to the jury. This assignment of error is overruled.

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    Defendant next argues that the trial court committed plain error by admitting into evidence the citation charging defendant with carrying a concealed weapon. We disagree.
    The citation for carrying a concealed weapon was introduced as evidence that defendant gave Figurski a false address when he wasarrested. Defendant concedes that he failed to object at trial to the admission of the citation. “Because defendant failed to object to the admission of this evidence, we review this issue for plain error.” State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000) (citing State v. Carter, 338 N.C. 569, 593, 451 S.E.2d 157, 170 (1994)). To establish plain error, a defendant must demonstrate “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
    We do not agree with defendant that the holding of State v. Jones, 157 N.C. App. 472, 579 S.E.2d 408 (2003), automatically requires reversal. The defendant herein was not tried in district court for carrying a concealed weapon. Instead, he was indicted for carrying a concealed weapon, as a misdemeanor offense joinable with the charged felony of possession of a firearm by a felon. Accordingly, unlike the citation introduced in Jones, the citation herein contained no ruling or order of a magistrate or district court judge. Nor do we agree with defendant that the defendant's signature, merely acknowledging receipt of the citation, carries the same possibility of prejudice as a judicial determination of guilt or innocence. “Moreover, assuming arguendo that it was error to admit the evidence in issue, we fail to see how the jury wouldhave reached a different result in defendant's case.” State v. Haselden, 357 N.C. 1, 14, 577 S.E.2d 594, 603 (2003). We conclude that the trial court did not commit plain error by admitting the citation. This assignment of error is overruled.

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    In a related argument, defendant contends that his trial counsel's failure to object to the admission of the citation constituted ineffective assistance of counsel. We disagree.
    To demonstrate ineffective assistance of counsel:
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). “Our statutorily enacted test for prejudice mirrors the Strickland test. N.C.G.S. § 15A-1443(a) [(2003)]; State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).” State v. Atkins, 349 N.C. 62, 112, 505 S.E.2d 97, 127 (1998).
    In the instant case, defendant bases his claim of ineffective assistance of counsel solely upon his counsel's failure to object to the admission of the citation charging him with carrying aconcealed weapon. Defendant concedes that the issue of ineffective assistance of counsel “may be determined on the face of the record.” We agree with defendant that he has raised an issue that may be resolved on direct appeal without remand for an evidentiary hearing.
    In order to demonstrate prejudice, the defendant must show 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). As discussed above, even if counsel's performance was deficient in failing to object to the admissibility of the citation charging carrying a concealed weapon, we conclude that there is no reasonable possibility that its admission affected the outcome of the trial. Where the defendant fails to show prejudice occasioned by his counsel's alleged errors, his claim of ineffective assistance of counsel must be denied. State v. Roache, 358 N.C. 243, 278, 595 S.E.2d 381, 404 (2004). This assignment of error is overruled.

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    Finally, defendant argues that the trial court erred in its instructions to the jury on the issue of constructive possession.
    “In every jury trial, it is the duty of the court to charge the jury on all substantial features of the case arising on theevidence, whether or not such instructions have been requested.” State v. Norman, 324 N.C. 253, 267, 378 S.E.2d 8, 17 (1989). “The trial judge has wide discretion in presenting the issues to the jury.” State v. Harris, 306 N.C. 724, 728, 295 S.E.2d 391, 393 (1982). Moreover:
        In North Carolina, requests for special jury instructions are allowable pursuant to G.S. §§ 1-181 and 1A-1, Rule 51(b). It is well settled that the trial court must give the instructions requested, at least in substance, if they are proper and supported by the evidence.

State v. Napier, 149 N.C. App. 462, 463-64, 560 S.E.2d 867, 868 (2002). Thus, if “a requested instruction is correct in law and supported by the evidence, the court . . . must charge the jury in substantial conformity to the prayer.” State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988).
    In the instant case, the State asked the trial court to modify the North Carolina Pattern Jury Instructions (NCPI) Criminal 104.41, on constructive possession, by including specific mention of certain evidentiary features that could be considered in the jury's determination of the issue of constructive possession. Accordingly, at the prosecutor's request, the trial court added to NCPI 104.41 an instruction to the jury that they could consider the following considerations in deciding whether defendant constructively possessed the gun found under his seat:        1. Whether the defendant exercised physical control over where the contraband or article was located; 2. Whether the defendant spoke to others in an authoritative manner regarding permission to enter the area where the contraband was located; 3. Whether, when others were present, did the officer deal with and speak exclusively with the defendant about the searching of the area with no objection by the defendant; 4. Whether the defendant acted in an authoritative manner regarding the property to be searched such as having or retaining keys; 5. Whether the location in which the contraband was located was within the control of the defendant.

“Where an instruction is requested by a party and the instruction is supported by the evidence and is a correct statement of the law, it is error for the trial court not to instruct in substantial conformity with the requested instruction.” State v. Singletary, 344 N.C. 95, 106, 472 S.E.2d 895, 902 (1996).
    In the instant case, the first two considerations included in the instructions to the jury are supported by the holding in State v. Thorpe, 326 N.C. 451, 390 S.E.2d 311 (1990); the third by State v. Davis, 325 N.C. 693, 386 S.E.2d 187 (1989); the fourth by State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984); and the fifth by State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). These considerations are, in turn, implicated by the evidence presented in this case. We conclude that the proffered instruction was “supported by the evidence and is a correct statement of the law,”Singletary, and thus that the trial court did not err in its instruction to the jury on constructive possession. This assignment of error is overruled.
    For the reasons discussed above, we conclude that the defendant had a fair trial, free of prejudicial error.
    No error.
    Judge GEER concurs.
    Judge THORNBURG concurred prior to December 31, 2004.
    Report per Rule 30(e).

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