Appeal by defendant from a judgment entered 5 August 2004 by
Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard
in the Court of Appeals 16 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
David J. Adinolfi, II, for the State.
Sue Genrich Berry for defendant.
Dontrail Markise Gilmore (defendant), appeals a judgment dated
5 August 2004, entered consistent with a jury verdict finding him
guilty of possession of a firearm by a convicted felon.
On 26 May 2004, Raleigh Police Detective W.N. Vaughn was on
duty looking to serve defendant with an arrest warrant. Detective
Vaughn had information that defendant was staying at the home of
his girlfriend Akea Kearny, and had been using her vehicle.
Detective Vaughn saw defendant exit Ms. Kearny's home and
approach the vehicle in question. Five to ten seconds after
defendant approached the vehicle, the vehicle drove off. DetectiveVaughn followed the vehicle for approximately one-half mile before
it was parked in a Howard Johnson's parking lot.
Detective Vaughn pulled in behind the vehicle and turned on
his strobe and blue lights. Defendant exited the vehicle and
followed Vaughn's commands to get on the ground. Vaughn detained
defendant until other officers arrived. Officer DiSimone and his
recruit took defendant into custody, handcuffed him, and searched
Detective Vaughn was convinced defendant was the man for whom
he had a warrant even though defendant refused to give his name and
then gave a false name. Vaughn asked Officer P.J. Kelly to search
the vehicle in question. Officer Kelly found a fully loaded nine-
millimeter semi-automatic handgun under the driver's seat.
Defendant was the operator and only occupant of the vehicle during
the time in question.
Defendant was transported to the West Raleigh Substation where
he was advised of his Miranda
rights. Defendant said he did not
own the firearm and that it did not belong to Ms. Kearny either.
Defendant stated that the vehicle belonged to Ms. Akea Kearny.
At trial, Detective Vaughn testified that he verified the gun
was not stolen. He also testified that defendant's girlfriend, Ms.
Kearny, never contacted the police to state that the gun was hers,
to recover the gun, or for any other reason. Officer Kelly
testified that he found the fully loaded handgun under the driver's
seat and that he unloaded the gun and removed the magazine before
turning it over to Detective Vaughn. After all the State's witnesses had testified, counsel for
defendant stipulated that defendant had previously been convicted
of a felony by stating, Your Honor, at this time we will stipulate
that Mr. Gilmore does have a felony, had one prior to May 26th of
2004. Judge Manning asked if the conviction was in Wake County
and defense counsel answered in the affirmative. The State
announced it would accept the stipulation. Without objection from
defense counsel, the State announced, I have what I have marked
State's exhibit number [four], . . . which is a certified copy of
the defendant's conviction of a Class G felony common law robbery.
The State continued, He was convicted in Wake County, North
Carolina of common law robbery, trial June 14, 2002. The felony
was committed on or about February 18 of 2002. Judge Manning
informed the jury that the parties had stipulated to the prior
felony conviction and that they were to accept that fact as true
for purposes of this case.
Defendant then called his only witness, Ms. Kearny. Ms.
Kearny stated the gun belonged to her, and was given to her by her
grandfather because she was afraid of it being like shooting in my
neighborhood. Ms. Kearny testified the vehicle in question
belonged to her as well. On cross-examination, Ms. Kearny stated
the gun was ordinarily kept in her house, however, on 26 May 2004
the gun was in the vehicle because her two-year-old niece was
visiting. Ms. Kearny admitted driving the vehicle in question with
the gun under the seat, then changed her testimony and denied that
fact, then admitted it again. Ms. Kearny also admitted notcontacting the police after defendant's arrest to inform them the
gun belonged to her grandfather. Ms. Kearny did not have a permit
for the firearm. She then testified that she never discussed the
case at hand with defendant even though she visited him eight times
in jail. However, she then changed her testimony and admitted
discussing the case with defendant.
On appeal, defendant raises four issues
(See footnote 1)
: (I) whether the
trial court committed plain error by allowing the prosecutor to
announce the nature of defendant's prior felony conviction and by
allowing the introduction of the certification of the conviction
after defendant had stipulated to the conviction; (II) whether the
trial court committed plain error by instructing the jury that
possession of the firearm could be actual or constructive because
no evidence of actual possession was presented; (III) whether trial
counsel provided ineffective assistance of counsel by failing to
object to certain evidence and jury instructions; and (IV) whether
the trial court erred by failing to grant defendant's motion to
dismiss for insufficiency of evidence. For the following reasons,
we find no error.
Defendant first argues it was plain error to allow the State
to announce the nature of defendant's prior felony conviction and
to admit a certification of the conviction because defendantstipulated to the prior felony conviction. Since defendant failed
to object to the admission of such evidence of the prior
conviction, this issue must be analyzed under the plain error rule.
State v. Walker
, 316 N.C. 33, 37, 340 S.E.2d 80, 82 (1986).
The plain error rule applies only in truly
exceptional cases. Before deciding that an
error by the trial court amounts to plain
error, the appellate court must be convinced
that absent the error the jury probably would
have reached a different verdict. . . . [T]he
appellate court must determine that the error
in question tilted the scales and caused the
jury to reach its verdict convicting the
defendant. Therefore, the test for plain
error places a much heavier burden than that
imposed by N.C.G.S. § 15A-1443 upon defendants
who have preserved their rights by timely
(See footnote 2)
This is so in part at least
because the defendant could have prevented any
error by making a timely objection.
at 39, 340 S.E.2d at 83 (internal citations omitted).
Defendant argues the trial court was obligated to follow Old
Chief v. United States
, 519 U.S. 172, 136 L. Ed. 2d 574 (1997). In
, the Supreme Court held the United States District Court
abused its discretion under Rule 403 of the Federal Rules of
Evidence by rejecting defendant's offer to stipulate to a prior
conviction and admitting the full record of a prior judgment. Id.
at 191, 136 L. Ed. 2d at 595. The Court reasoned that the name or
nature of the prior offense, assault causing serious bodily injury,
raised the risk of a verdict tainted by improper considerationswhen the current charge was assault with a deadly weapon because
the offenses were substantially similar and the only purpose of the
evidence was to establish the prior conviction. Id.
at 185, 136 L.
Ed. 2d at 591.
This Court analyzed Old Chief
in State v. Jackson
, 139 N.C.
App. 721, 535 S.E.2d 48 (2000), aff'd in part and rev'd in part on
, 353 N.C. 495, 546 S.E.2d 570 (2001) (finding the
inoperability of a firearm is not an affirmative defense to a
charge of possession of a firearm by a convicted felon). The
Court acknowledged the United States Supreme Court's
emphasis on the prejudice that ensues when a defendant is being
tried for possession of a firearm and a prior assault conviction
involving a firearm is introduced. However, the Jackson
that we are not bound by Old Chief
[W]e note that our statute prohibiting
possession of a firearm by a convicted felon
specifically provides as follows:
When a person is charged under this
section, records of prior
convictions of any offense, whether
in the courts of this State, or in
the courts of any other state or of
the United States, shall be
admissible in evidence for the
purpose of proving a violation of
G.S. § 14-415.1(b). No similar provision may
be found in the statute at issue in Old Chief
18 U.S.C. § 992.
139 N.C. App. at 732, 535 S.E.2d at 55.
Therefore, pursuant to Jackson
, defendant's reliance on Old
is misplaced for several reasons. First, the facts of thepresent case are distinguishable from those in Old Chief
the United States Supreme Court stated the prior offense, assault
causing serious bodily injury, was substantially similar to the
offense in question, assault with a deadly weapon. Old Chief,
U.S. at 185, 136 L. Ed. 2d at 591. In the present case, the prior
felony conviction was for common law robbery and the charge in
question is possession of a firearm by a convicted felon.
Defendant's argument that the charges are substantially similar
because they both involve prospective violence is without merit
because many charges involve prospective violence. To adopt such
reasoning would be imprudent as wholly unrelated charges could be
found to be substantially similar. Further, there was no evidence
presented that defendant used a firearm during the commission of
the prior crime.
Second, North Carolina courts are not bound by the decision in
. State v. Faison
, 128 N.C. App. 745, 747, 497 S.E.2d
111, 112 (1998); see also, State v. Lamb
, 84 N.C. App. 569, 580,
353 S.E.2d 857, 863 (1987) (a non-constitutional decision of the
United States Supreme Court cannot bind or restrict how courts in
this State interpret and apply North Carolina evidence law).
Third, North Carolina General Statute § 14-415.1, prohibiting
possession of a firearm by convicted felons, clearly allows records
of prior convictions to be used to prove the offense of possession
of a firearm by a convicted felon. N.C. Gen. Stat. § 14-415.1(b)
(2003). Therefore, it cannot be said that the trial court
committed plain error in allowing the State to introduce evidenceregarding defendant's prior felony conviction. This assignment of
error is overruled.
Defendant next argues the trial court committed plain error by
instructing the jury that possession of a firearm could be actual
or constructive because no evidence of actual possession was
presented. The jury was instructed, in pertinent part, Possession
. . . may be actual or constructive. The trial court's
instructions then defined both actual and constructive possession.
Defendant cites State v. Carter
for the proposition that a
trial court's instructions on possible theories of conviction must
be supported by the evidence. State v. Carter
, 122 N.C. App. 332,
339, 470 S.E.2d 74, 79 (1996). Defendant posits that there was no
evidence of actual possession in this case and that the instruction
violated North Carolina General Statute § 15A-1232, which reads,
In instructing the jury, the judge shall not express an opinion as
to whether or not a fact has been proved . . . . N.C. Gen. Stat.
§ 15-1232 (2003). Defendant claims that instructing the jury on
actual possession amounted to the trial judge expressing an opinion
of defendant's guilt.
Since defendant failed to object to the jury instructions,
this assignment of error must be analyzed under the plain error
standard of review. State v. Holden
, 346 N.C. 404, 434-35, 488
S.E.2d 514, 530-31 (1997). Plain error with respect to jury
instructions requires the error be so fundamental that (i) absent
the error, the jury probably would have reached a differentverdict; or (ii) the error would constitute a miscarriage of
justice if not corrected. Id.
at 435, 488 S.E.2d at 531.
In State v. Lyons
, the defendant similarly argued his right to
be convicted by a unanimous jury was violated by a disjunctive jury
instruction. State v. Lyons
, 330 N.C. 298, 301-02, 412 S.E.2d 308,
311 (1991). In response, the North Carolina Supreme Court held,
if the trial court merely instructs the jury disjunctively as to
various alternative acts which will establish an element of the
, the requirement of unanimity is satisfied. Id.
412 S.E.2d at 312.
The present case is similar to Lyons
because here the jury was
disjunctively instructed that possession of the firearm could be
actual or constructive. Therefore, the trial court did not commit
plain error in instructing the jury that possession could be actual
or constructive. This assignment of error is overruled.
Defendant next argues trial counsel was ineffective for (1)
failing to object to the admission of any evidence of the prior
conviction other than the stipulation, and/or (2) failing to object
to the trial court's jury instruction that possession of the
firearm could be actual or constructive. To prevail on his
ineffective assistance of counsel claim defendant must show that
his counsel's conduct fell below an objective standard of
reasonableness. State v. Braswell, 312 N.C. 553, 561-62, 324
S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S.668, 80 L. Ed. 2d 674 (1984)). Defendant must satisfy the
following two-prong test:
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.
Braswell at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at
687, 80 L. Ed. 2d at 693).
Defendant first contends counsel was ineffective for failing
to object to evidence other than the stipulation concerning
defendant's prior felony conviction. As stated above, the trial
court did not err in allowing the admission of evidence concerning
defendant's prior felony conviction. Any argument that defense
counsel made a serious error that deprived defendant of a fair
trial when (1) the current and prior offenses were not
substantially similar and (2) N.C. Gen. Stat. § 14-415.1(b)
authorizes the admission of such evidence, is unavailing.
Defendant also contends counsel was ineffective for failing to
object to the jury instructions that possession of the firearm
could be actual or constructive. As stated above, Lyons
established that a disjunctive jury instruction allowing the jury
to consider alternative acts that will establish an element of the
offense does not constitute error. Lyons, 330 N.C. at 303, 412
S.E.2d at 312. Therefore, failure to object to such an instructionfalls well short of ineffective assistance of counsel. Since both
of defendant's contentions of ineffective assistance of counsel are
without merit this assignment of error is overruled.
Defendant's final argument is that the trial court committed
plain error by denying defendant's motion to dismiss for
insufficiency of the evidence. The standard of review for a motion
to dismiss in a criminal trial 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 defendant's being
the perpetrator of such offense. If so, the motion is properly
denied.' State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918
(1993) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114,
117 (1980)). In order for the jury to render a guilty verdict on
the charge of possession of a firearm by a felon, the jury must
find, (1) the defendant had previously been convicted of a felony
and (2) that he had a firearm in his possession, custody, or
control. N.C. Gen. Stat. § 14-415.1 (2003).
Defendant admits he is a convicted felon for purposes of N.C.
Gen. Stat. § 14-415.1. Therefore, the issue is whether defendant
had a firearm in his possession, custody, or control. Possession
may be actual or constructive. State v. Dow, 70 N.C. App. 82, 85,
318 S.E.2d 883, 885 (1984). Constructive possession exists when
the defendant, 'while not having actual possession, . . . has the
intent and capability to maintain control and dominion over' the
item. State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270(2001) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476,
In State v. Wolfe, this Court held:
The driver of a borrowed car, like the owner
of the car, has the power to control the
contents of the car. Thus, where contraband
material is under the control of an accused,
even though the accused is the borrower of a
vehicle, this fact is sufficient to give rise
to an inference of knowledge and possession
which may be sufficient to carry the case to
the jury. The inference is rebuttable, and if
the owner of a vehicle loans it to an accused
without telling him what is contained in the
vehicle, the accused may offer evidence to
that effect and thereby rebut the inference.
. . . [T]he State may overcome a motion for
nonsuit by presenting evidence which places
the accused within such close juxtaposition to
the contraband as to justify the jury in
concluding that the contraband was in the
State v. Wolfe, 26 N.C. App. 464, 467, 216 S.E.2d 470, 473 (1975)
(quoting State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127
In the present case, the fact that defendant borrowed the
vehicle from Ms. Kearny was sufficient to give rise to an inference
of defendant's knowledge and possession of the firearm found in the
vehicle. Ms. Kearny's testimony that defendant was not aware of
the firearm's presence within the vehicle was sufficient to rebut
that inference. However, the State's evidence that defendant was
operating the vehicle and was its sole occupant when the firearm
was discovered is sufficient to survive the motion to dismiss
because defendant was in such close juxtaposition to the firearmthat a jury could conclude the handgun was in his possession. This
assignment of error is overruled.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).