An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-231


Filed: 5 April 2005


v .                         Forsyth County
                            No. 02 CRS 50551
RANDAL KEITH NELSON,             02 CRS 367

    Appeal by defendant from judgment entered 14 August 2003 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 4 November 2004.

     Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton , for the State.

    Daniel F. Read for defendant-appellant.

    GEER, Judge.

    Defendant Randal Keith Nelson was convicted of possession of a firearm by a felon and pled guilty to being a habitual felon. On appeal, defendant argues that the trial court erred by (1) admitting hearsay statements, (2) denying a motion to dismiss, and (3) using a prior felony conviction as both the basis for the charge of possession of a firearm by a felon and as one of the underlying felonies supporting the habitual felon indictment. We do not find these arguments persuasive and hold that defendant received a trial free of prejudicial error.

    The State's evidence tended to show the following. On 13 December 2001, Don Harris was working as a security guard at aMotel 6 in Winston-Salem. At approximately 4:00 a.m., Harris, who was in the motel office, heard "what sounded like a gunshot through the ceiling." As Harris walked up a stairway to investigate, he encountered Yolanda Covington, who appeared nervous and scared. Covington told Harris that "a man fired a gun in my room." As Harris approached Covington's room (room 252), he saw defendant hurriedly walking out of the room with something unidentifiable cupped in his right hand. Upon entering the room, Harris found a bullet hole in the wall and a shattered commode.
    Harris found defendant standing by a van in the parking lot. Defendant appeared drunk and made insulting and threatening statements to Harris, but he accompanied Harris to the motel office. When Officer K.D. Israel of the Winston-Salem Police Department arrived, Harris told the officer what had occurred, including what Covington told him. Officer Israel then asked defendant to describe what took place in the room. Defendant told the officer that he and a woman had been engaged in a sexual act in room 252 when someone shot a gun through the window.
    Upon examining room 252, Officer Israel found a .380 shell casing, a bullet hole in the wall, and a shattered commode on the other side of the wall from the hole. He did not find a bullet hole or any other damage to the window. When he asked defendant to explain the absence of any damage to the window, defendant only smiled.
Officer Israel escorted defendant to the van where Harris originally found defendant standing. Defendant admitted to owningthe van and consented to a search of the van, but then claimed to have lost his keys. Officers searched the outside of the van and found a .380 automatic gun on top of the front left tire of the van. A bullet found in the chamber of the gun had the identical caliber and name brand as the shell casing found inside room 252.
    On 11 March 2002, defendant was indicted for (1) possession of a firearm by a convicted felon and (2) being a habitual felon. On 14 August 2003, a jury found defendant guilty of possession of a firearm by a convicted felon. Defendant pled guilty to being a habitual felon, and he was sentenced to 168 to 211 months imprisonment.
Statements of Yolanda Covington
    Defendant's first assignment of error contends that the trial court improperly admitted Covington's statements to Harris. Defendant argues that these statements constituted inadmissible hearsay. As the State points out, defendant did not properly preserve this assignment of error for appellate review.
    The admissibility of these statements was argued during a motion in limine, but when the actual testimony was offered at trial, defendant failed to object. Under the law applicable at the trial below, a "'motion in limine [was] insufficient to preserve for appeal the question of the admissibility of evidence if the [movant] fail[ed] to further object to that evidence at the time it [was] offered at trial.'" Martin v. Benson, 348 N.C. 684, 685, 500 S.E.2d 664, 665 (1998) (quoting State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46, cert. denied, 516 U.S. 884, 133 L. Ed.2d 153, 116 S. Ct. 223 (1995)). But see N.C.R. Evid. 103(a)(2) (effective 1 October 2003, "[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal"). Further, since defendant did not specifically include "plain error" in his assignment of error, he has waived "plain error" review of this issue. State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004) ("Rule 10(c)(4) of the North Carolina Rules of Appellate Procedure requires that an assignment of error be 'specifically and distinctly contended to amount to plain error.' N.C. R. App. P. 10(c)(4). Defendant failed to specifically assert plain error. He therefore failed to properly preserve this issue for appellate review.").
    Nevertheless, we observe that Covington's statements were properly admitted as "excited utterances" under Rule 803(2) of the Rules of Evidence. In order for a statement to qualify as an excited utterance, there must be "(1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication." State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985).
    The trial court found that Covington's statements were made three to five minutes after the gun shot _ a startling event _ and that she appeared scared when making the statements. These findings were sufficient to support the trial court's admission of the statements under Rule 803(2). See, e.g., State v. McLemore,343 N.C. 240, 248, 470 S.E.2d 2, 6 (1996) (holding that statements made by the defendant's wife three minutes after defendant had told her he shot his mother were excited utterances); State v. Murphy, 321 N.C. 72, 77, 361 S.E.2d 745, 748 (1987) (holding that statements made by a rape victim to a detective 10 minutes after the rape were excited utterances).
    Defendant argues that the statements should not be admitted because the declarant herself was not trustworthy. This argument is misplaced because the focus is on the "trustworthiness" of the statement itself and not the declarant. See State v. Reid, 335 N.C. 647, 662, 440 S.E.2d 776, 784 (1994) ("'[T]he trustworthiness of this type of utterance lies in its spontaneity . . . .'" (quoting 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 216 (4th ed. 1993))). Whether or not the declarant herself is reliable, an issue of credibility for the jury, is immaterial when a statement qualifies as an excited utterance.
    Defendant also argues that admitting Covington's statements violates his Sixth Amendment rights as recently set out in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Crawford held that "[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. As defendant acknowledges, the holding of Crawford is limited to "testimonial evidence." Id. Here, since Covington made her statements to a private security guard, there is no basis forclassifying her statements as "testimonial evidence." Cf. State v. Forrest, 164 N.C. App. 272, 280, 596 S.E.2d 22, 27 (2004) (holding that Crawford did not apply to spontaneous statement made to police immediately after a rescue) (appeal pending). The trial court, therefore, properly denied the motion in limine.
Possession of a Firearm
    Defendant next argues that the trial court erred in denying his motion to dismiss the charge of possession of a firearm by a felon because the State offered insufficient evidence that he possessed the gun.   (See footnote 1)  When considering a motion to dismiss by a criminal defendant, the trial court must determine whether the State has presented substantial evidence of every essential element of the crime and that the defendant is the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). When considering the motion to dismiss, the court must consider the evidence "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in itsfavor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
    Under N.C. Gen. Stat. § 14-415.1(a) (2003), it is unlawful for "any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches." As this Court has previously explained, "[p]ossession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition." State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (internal citations omitted).
    When the defendant does not have exclusive possession of the location where the object is found, the State must make a showing of "other incriminating circumstances" in order to establish constructive possession. Matias, 354 N.C. at 552, 556 S.E.2d at 271. This Court has previously held 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. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001) (quoting State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991), aff'd per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992)), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002).    Since defendant's van _ with the gun resting on its tire _ was located in a parking lot, defendant did not have exclusive possession of the premises where the gun was located. Nevertheless, the State offered sufficient evidence of "other incriminating circumstances" to permit a reasonable juror to conclude that he had constructive possession of the gun. Immediately after Covington told Harris that a man had fired a gun in room 252, Harris saw defendant quickly leaving the room holding something in his hand. The evidence indicated defendant had the opportunity to hide the gun on the van's tire because shortly after the shooting, Harris found defendant standing very near the location of the gun. Further, when defendant was questioned, he admitted being in room 252 when the gun was shot, but claimed the shot came through the window, although he had no explanation for why the window was undamaged. The physical evidence in room 252 indicated that a gun had been fired within the room and that the gun was of the same caliber and used the same type of bullets as the gun found on the van's tire. Based on this evidence, a reasonable juror could find that defendant had fired that gun in room 252.
    Considering all of this evidence in the light most favorable to the State, there is sufficient circumstantial evidence to find constructive possession and thus sufficient evidence to withstand a motion to dismiss. See State v. Glasco, 160 N.C. App. 150, 157, 585 S.E.2d 257, 262-63 ("Because this evidence tended to show that defendant had discharged a gun, we also conclude that it gave riseto a reasonable inference that he possessed that gun . . . . Such evidence, when taken in the light most favorable to the State, provides a sufficient link between defendant and a firearm to allow for the jury's consideration."), disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003).
    Alston and State v. Acolatse, 158 N.C. App. 485, 581 S.E.2d 807 (2003), relied upon by defendant, do not require a different conclusion. In Alston, a gun _ purchased and owned by defendant's wife _ was found lying between the driver's and passenger's seats of defendant's brother's car at a time when defendant was a passenger of the car and his wife was driving. As this Court observed, "Defendant and his wife had equal access to the handgun, but there is no evidence otherwise linking the handgun to Defendant." Alston, 131 N.C. App. at 519, 508 S.E.2d at 319. Similarly, in Acolatse, defendant ran past a house to which he had no connection and made a throwing motion towards a bush. This Court held that there was insufficient evidence of possession with respect to cocaine found on the roof of the house's garage when the roof was not located near the bushes. Acolatse, 158 N.C. App. at 490, 581 S.E.2d at 811.
    In this case, the State did not rely upon just defendant's proximity to the gun, but rather offered evidence suggesting that defendant had in fact fired the gun. See State v. Boyd, 154 N.C. App. 302, 309, 572 S.E.2d 192, 197 (2002) (evidence was sufficient to defeat a motion to dismiss when a gun was found under defendant's seat in a car, the car had been used only by thedefendant and a witness, and the gun had been seen by the witness at the home of defendant's mother). The trial court did not, therefore, err in denying defendant's motion to dismiss.
The Habitual Felon Indictment
    In his final assignment of error, defendant contends that the same 1991 felony conviction could not be used both as a basis for his conviction of the charge of possession of a firearm by a felon and as one of the underlying felonies establishing defendant's status as a habitual felon. This Court has already rejected this argument in State v. Glasco, 160 N.C. App. 150, 585 S.E.2d 257 (2003).
    In Glasco, this Court held:
[D]efendant argues that he was impermissibly subjected to double jeopardy because the court used the offense of possession with intent to sell and deliver cocaine to support both the underlying substantive felony (the "felon" portion of the offense of felon in possession of a firearm) and the habitual felon indictment. Our courts have determined that elements used to establish an underlying conviction may also be used to establish a defendant's status as a habitual felon. State v. Misenheimer, 123 N.C. App. 156, 158, 472 S.E.2d 191, 192-93 (1996), cert. denied, 344 N.C. 441, 476 S.E.2d 128 (1996). As the relevant statutes do not indicate otherwise, we are bound to follow this ruling and reject defendant's argument. N.C. Gen. Stat. §§ 14- 7.1 & 7.6 (2001).

Id. at 160, 585 S.E.2d at 264. Since defendant's argument in this case is grounded in a construction of N.C. Gen. Stat. §§ 14-7.1 & -7.6 (2003), Glasco is controlling. See also State v. Misenheimer, 123 N.C. App. 156, 158, 472 S.E.2d 191, 193 (holding that "the legislature has not prohibited the use of [prior felonies that wereelements of the current criminal charge] in establishing a defendant's status as an habitual felon"), cert. denied, 344 N.C. 441, 476 S.E.2d 128 (1996). Despite defendant's invitation, one panel of this Court may not overrule another panel. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).

    No error.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).    

Footnote: 1
    In the heading for this section of his brief, defendant includes his assignment of error that the trial court's instruction regarding possession was improper in light of the evidence. The text of the argument, however, contains no discussion of the assignment of error. He has, therefore, abandoned this assignment of error. N.C.R. App. P. 28(b)(6).

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