An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1355


Filed: 16 August 2005


v .                         Wake County
                            Nos. 03 CRS 6223, 33740

    Appeal by defendant from judgment dated 4 February 2004 by Judge W. Osmond Smith in Superior Court, Wake County. Heard in the Court of Appeals 7 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.

    Thomas R. Sallenger for defendant.

    McGEE, Judge.

    Mark Stafford Brodie (defendant) was convicted of possession of a firearm by a felon, in violation of N.C. Gen. Stat. § 14- 415.1, on 4 February 2004. Defendant admitted his habitual felon status and the trial court consolidated the offenses and sentenced defendant to 135 to 171 months in prison. Defendant gave timely notice of appeal in open court.
    The State's evidence at trial tended to show that on 23 January 2003, Officer D.J. Ehrhardt was patrolling to locate a person purportedly involved in a family dispute when he "saw an individual walk from a dark area of a house" to a vehicle on the street. A few minutes later, Officer Ehrhardt saw the vehicle pull into the parking lot of an apartment complex, and he followed thevehicle to run a check on the vehicle's license plate number. The parking lot was well lit. Officer Ehrhardt watched a man, later identified as defendant, exit the driver's side of the vehicle and walk up some steps to an entry area for an apartment in the complex. Officer Ehrhardt also observed a woman in the front passenger side of the vehicle and a man in the back seat of the vehicle.
    Officer Ehrhardt described the entry area as a "small deck area in front of the door of [the] apartment" that served "no other purpose" than to "give access to the front door of [the] apartment." Officer Ehrhardt could observe defendant as defendant walked up and down the stairs, but Officer Ehrhardt could not see defendant while defendant was standing on the deck. Defendant remained on the deck for approximately two minutes, and then began to return to the vehicle.
    Officer Ehrhardt approached defendant and explained that defendant "matched a general description of someone [Officer Ehrhardt] was trying to locate." Officer Ehrhardt asked defendant for his name and for identification. Defendant provided his correct name and an identification card. Officer Ehrhardt testified that he "would have been finished talking to [defendant] except it was clear . . . [defendant] did not have a driver's license and that [defendant] had driven [the] vehicle." Officer Ehrhardt confirmed that defendant's driver's license had been suspended. In addition to defendant, there were two other individuals in the vehicle, and Officer Ehrhardt called for anotherofficer to assist him.
    Shortly thereafter, Officer T.J. Oulette arrived. Officer Ehrhardt requested and received permission from defendant to search both defendant's person and the vehicle defendant had been driving. As Officer Ehrhardt began to search defendant, defendant stated that he had "some counterfeit substance on [him]." Defendant's statement was likely in response to Officer Ehrhardt's question as to whether defendant had any weapons or drugs. From the search of defendant's person, Officer Ehrhardt retrieved various drug paraphernalia, including a "crack pipe," "rolling papers" and some copper mesh.
    From the search of defendant's vehicle, Officer Ehrhardt retrieved a partially full box of .357 caliber hollow point bullets but did not find a weapon. The bullets were Custom Frontier model and were manufactured by Hornady. At trial, both Officer Ehrhardt (Vol. 1, T p. 67-68) and Officer Oulette testified that this caliber, model and type of bullet were rarely seen "on the streets." Officer Ehrhardt did not find anything else incriminating in the vehicle. Officer Ehrhardt questioned defendant about having bullets in his vehicle but not having a gun. Defendant stated he owned the bullets and that the gun for the bullets was at defendant's home.
    Defendant had earlier indicated to Officer Ehrhardt that defendant had gone to the apartment to "look for a girl, but she wasn't there." Officer Ehrhardt suspected that defendant's statement might not be true. Officer Ehrhardt went to the sameapartment and had a conversation with a woman, who was dressed like "she'd gotten out of bed." The woman indicated that she and a child were the only occupants of the apartment.
    Officer Ehrhardt inspected the entry area in front of the apartment. On the deck was a "small, white plastic trash can" that Officer Ehrhardt testified did not appear to be used by the general public. Officer Ehrhardt found a brown paper bag containing "a .357 Derringer pistol . . . along with a wad of copper mesh[,]" in the trash can. The pistol was manufactured by High-Hunter, Inc. and was a Frontier model. The pistol was loaded with two bullets, which were .357 magnum Frontier hollow point bullets. Officer Ehrhardt arrested defendant for possession of a firearm.
    The State's evidence also tended to show that Agent Robert Hotchkiss of the City County Bureau of Identification (CCBI) tested the pistol and bullets for fingerprints but none were found. Additionally, the State requested that the Bureau of Alcohol, Tobacco and Firearms (ATF) trace the ownership of the pistol. At the time of trial, neither Officer Ehrhardt nor Officer Oulette had any information regarding the results of the trace request, nor did they know to whom the pistol was registered. Sonia Clodfelter, a deputy clerk of Superior Court for Wake County, testified that court records indicated that defendant had pled guilty to a charge of possession of stolen goods in 1999.
    At the close of the State's evidence, defendant made an oral motion to "dismiss the State's case on the basis that the State [had] failed to meet" the element of possession. The trial courtdenied defendant's motion to dismiss. Defendant then rested his case without presenting any evidence.
    Defendant first assigns error to the trial court's denial of defendant's motion to dismiss the charge of possession of a firearm by a felon on the grounds that the evidence was insufficient to convince a rational trier of fact of defendant's guilt beyond a reasonable doubt.
    In evaluating defendant's motion to dismiss, "all the evidence admitted . . . must be considered by the trial [court] in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Furthermore, "'the question for the [trial] [c]ourt is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense.'" State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted)). "'Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt.'" State v. Alston, 131 N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998) (quoting State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986)). If there is substantial evidence to support a finding that an offense was committed by a defendant, "'the case is for the jury and the motion to dismiss should be denied.'" State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140(2002) (quoting State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)).
    The essential elements of possession of a firearm by a felon are: (1) a defendant who has been convicted of a felony in North Carolina, (2) who "purchase[s], own[s], possess[es], or [has] in his custody, care, or control[,] (3) "any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches[.]" N.C. Gen. Stat. § 14-415.1(a) (2003). In the case before us, defendant only disputes whether he had possession or control of the pistol. Therefore, we only address that issue.
    Possession may be either actual or constructive. Alston, 131 N.C. App at 519, 508 S.E.2d at (1998). "Actual possession requires that a party have physical or personal custody of the item." Id. We find that since the pistol was retrieved from a location other than from defendant's person, defendant did not have actual possession of the pistol.
    Constructive possession occurs "when [an] item is not in [a party's] physical custody, but he nonetheless has the power and intent to control its disposition." Id. If an item "is found on premises under the defendant's control, this fact alone may be sufficient to overcome a motion to dismiss and to take the case to the jury." State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993). In the present case, we find that the public nature of the apartment's entry area, coupled with the fact that defendant was not a resident of the apartment complex, shows that defendantdid not have control of the premises where the pistol was found.
    When a defendant does not control the premises where an item is found, "other incriminating circumstances must be established for constructive possession to be inferred." Id. Our Court has
emphasized that whether constructive possession exists "'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) (citations omitted), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002).
    A review of decisions by our Court involving constructive possession shows that we have concluded that circumstantial evidence is sufficient to withstand a motion to dismiss when the evidence presented definitively links a defendant to the weapon. For example, in State v. Glasco, our Court upheld the trial court's denial of the defendant's motion to dismiss the possession of a firearm by a felon charge where the evidence showed that the defendant had "discharged a gun." 160 N.C. App. 150, 157, 585 S.E.2d 257, 262-63, disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003)). Shortly after a shooting incident, the defendant in Glasco was seen jumping over a fence of a yard near the shooting. Id. A gun was later found in the same yard. Id. The defendant was found carrying a garbage bag that had gunshot residue on it; the garbage bag also had a hole in it, which was consistent with the discharge of a firearm from inside the bag. Id. Our Court held that because the evidence "tended to show that [the] defendant had discharged a gun," a reasonable inference could be drawn that the defendant had possessed the gun. We thus concluded that therewas "a sufficient link between [the] defendant and a firearm to allow for the jury's consideration." Glasco at 157, 585 S.E.2d at 262-63.
    By contrast, our Court has held that there was insufficient evidence for the issue of constructive possession to go to the jury when the link between the defendant and the firearm was more tenuous. In Alston, we held the defendant's conviction of possession of a firearm by a felon was in error because "there [was] not substantial evidence in [the] record that [the] [d]efendant had the possession, control, or custody of the handgun" at issue. Alston, 131 N.C. App. at 519, 508 S.E.2d at 319. The defendant was a passenger in a vehicle where a handgun was found lying between the passenger seat and the driver's seat, and the defendant was sitting within reach of the gun. Id. The gun was purchased by, and registered to, the defendant's wife, and the vehicle belonged to the defendant's brother. Id. Our Court held that because the totality of these circumstances did not provide a sufficient link between the defendant and the handgun, the trial court should have granted the defendant's motion to dismiss. Id.     Similarly, our Court found in State v. Acolatse, that the defendant's conviction on drug-related charges was in error because "the State . . . failed to present any incriminating circumstances from which one [could] infer constructive possession." Acolatse, 158 N.C. App. 485, 490, 581 S.E.2d 807, 811 (2003). The evidence presented at trial, viewed in the light most favorable to the State, showed that the defendant in Acolatse "was apprehended inthe bushes behind [a] detached garage near a fence after a police officer saw [the defendant] make a straight throwing motion towards the bushes. Nothing was found in the bushes; however, drugs were found on the roof of the detached garage." Id. at 490, 581 S.E.2d at 810-11. The evidence further showed that the defendant did not own the garage, that the garage was in a different direction than the bushes, and that none of the detectives who apprehended the defendant saw the defendant throw anything onto the roof of the garage. Id. at 488-90, 581 S.E.2d at 810-11. The State argued that constructive possession could be inferred from: (1) the defendant's being in close proximity to where the cocaine was found, (2) the money found on the defendant's person was in denominations consistent with the sale of controlled substances, (3) the defendant had been seen making a throwing motion while being chased by the police, and (4) there was an odor of cocaine in the defendant's vehicle. Id. at 489-90, 581 S.E.2d 810-11. However, our Court held that the totality of the circumstances in Acolatse "only raise[d] a suspicion of possession." Id. at 490, 581 S.E.2d at 811. Evidence that "'merely . . . raise[s] a suspicion or conjecture as to any element of the offense'" is insufficient to disallow a motion to dismiss, "'even though the suspicion aroused by the evidence is strong.'" Id. (citations omitted).
    We find that the facts in the present case are closer to those in Alston and Acoltase than to those in Glasco. The State failed to definitively link defendant to the pistol. Neither OfficerEhrhardt nor Officer Oulette testified that ATF records showed any connection between defendant and the pistol. Nor were defendant's fingerprints found on the pistol or bullets. There was no testimony linking the drug paraphernalia found in the paper bag to the drug paraphernalia found on defendant's person. The State's evidence regarding the similarity between the bullets owned by defendant and the bullets found in the pistol was sufficient only to raise a suspicion that defendant possessed the pistol. The evidence was not sufficient to submit the case to a jury.
    Under our Court's decisions in Alston and Acolatse, we must hold that the State failed to present other incriminating circumstances from which the jury could infer constructive possession. We therefore reverse the trial court's dismissal of defendant's motion to dismiss the charge of possession of a firearm by a felon.
    We need not address defendant's remaining assignments of error.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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