State v Hill, (05-537) 01/03/2006

Appeal by defendant from judgment entered 24 January 2005 by Judge William C. Griffin in Halifax County Superior Court. Heard in the Court of Appeals 29 November 2005.

Attorney General Roy Cooper, by Assistant Attorney General Meredith Jo Alcoke, for the State.

Irving L. Joyner, for defendant-appellant.

    STEELMAN, Judge.

    On 19 September 2004, at approximately noon, Halifax County Sheriff's deputies responded to a call of shots fired from a trailer home in Enfield. Deputies approached the trailer. Deputy Paul Ward went to the back of the trailer and saw defendant exit the trailer holding a handgun at his side. Deputy Ward ordered defendant to drop the firearm and get on the ground, and defendant complied without incident. Defendant told Deputy Ward his name, and that he was from Rocky Mount. A criminal record check revealed that he was a convicted felon, and the deputies arrested him for possession of a firearm by a convicted felon.
    Defendant was tried before a jury on 24 January 2004. The State presented evidence of defendant's prior felony conviction,and that he was in possession of a firearm on the grounds of the residence rented by his girlfriend, Sabrina Green (Green). Defendant elected not to present evidence, and the jury was excused from the courtroom. Defendant then moved to dismiss the charge, arguing that the State had presented no evidence that defendant was not at his residence when he possessed the firearm. The relevant statute, N.C. Gen. Stat. § 14-415.1, prohibits anyone who has been convicted of a felony from purchasing, owning or possessing a firearm with a barrel shorter than eighteen inches, but makes an exception allowing possession of such a firearm “within his own home or on his lawful place of business.”   (See footnote 1)
    The trial court told defense counsel that it was defendant's burden to present evidence that he was within his own home, and indicated that because defendant had not done so, it would deny his motion to dismiss. The trial court then inquired as to whether defendant desired to reopen the evidence. Defendant moved to reopen the evidence, and called Green to testify. She testified that defendant had been living with her for eight months prior to his arrest. Defendant then rested, and the jury was excused from the courtroom. Outside the presence of the jury, the trial court ordered defendant to produce his driver's license, which showed a Rocky Mount address, not the address of the trailer located in Halifax County. The trial court then inquired as to whether the State desired to present any rebuttal evidence. The State calledDeputy Ward, who examined both defendant's driver's history and his driver's license and testified that defendant's license stated an address different than Green's. Both these documents were admitted into evidence.
    The jury found defendant guilty of possession of a firearm by a felon. The court sentenced defendant to an active prison term of fifteen to eighteen months. From this judgment, defendant appeals.
    In defendant's first argument he contends that the trial court erred in denying defendant's motion to dismiss at the close of State's evidence. We disagree.
    At the close of State's evidence, defendant moved to dismiss the charge of possession of a firearm by a felon, arguing that the State had failed to present evidence of a necessary element of that crime. When it became clear that the trial court was not going to dismiss the charge, defendant requested the trial court allow him to present evidence. The trial court allowed this motion. Defendant did not renew his motion to dismiss at the close of all evidence, and thus has not preserved this issue for appeal. N.C. R. App. P. Rule 10(b)(3); State v. Pleasant, 342 N.C. 366, 373, 464 S.E.2d 284, 288 (1995).
    Assuming arguendo that defendant has properly preserved this argument, it would still fail. Defendant's sole argument on appeal is that the State failed to present any evidence in its primary case establishing that defendant was not on his own property when he was found in possession of a firearm as excepted by N.C. Gen. Stat. § 14-415.1. As the trial judge correctly noted it is thedefendant's burden to produce evidence that he falls within the home and business exception under N.C. Gen. Stat. § 14-415.1. State v. Bishop, 119 N.C. App. 695, 698, 459 S.E.2d 830, 832 (1995); see also State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971); State v. Smith, 155 N.C. App. 500, 573 S.E.2d 618 (2002); State v. McNeill, 78 N.C. App. 514, 337 S.E.2d 172 (1985). Unless defendant meets this burden, the State has no obligation to present evidence to prove a negative proposition, i.e. that defendant was not in his home or business. Id. When defendant moved to dismiss at the close of State's evidence, he had not presented any evidence, and thus he clearly had not met this burden. Having failed to renew his motion to dismiss at the close of all evidence, he has lost any right to appeal the sufficiency of the evidence presented after his initial motion was denied. This argument is without merit.
    In his second argument, defendant contends that the trial court committed prejudicial error by interjecting itself into the trial in an improper manner. We disagree.
    Defendant complains of two incidents that he contends, considered together, rise to the level of reversible error because they indicate a bias by the trial court in favor of the State. State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10-11 (1951). “'The criterion for determining whether or not the trial judge deprived an accused of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect of the language upon the jury. In applying this test, the utterance of the judge is to be considered in the light of thecircumstances under which it was made.'” State v. Locklear, 349 N.C. 118, 144, 505 S.E.2d 277, 292 (1998) (quoting Carter, 233 N.C. at 583, 65 S.E.2d at 11).
    First, defendant argues that the trial court's “aggressive” questioning of defendant's witness was done with the intent to “discredit or undermine the believability of her testimony.” Defendant presented evidence in support of his contention that he was residing in the trailer where he possessed the firearm, and therefore he was not in violation of N.C. Gen. Stat. § 14-415.1(a)(2004) as it was written at that time (“Nothing in this subsection would prohibit the right of any person to have possession of a firearm within his own home ....”). Defendant's witness (and girlfriend), Green, testified that defendant was living with her on the date in question, and had been living with her for approximately eight months at the time, but she also gave contradictory testimony indicating defendant did not reside with her. The trial court asked Green several questions concerning her testimony, specifically who paid the rent, and if defendant contributed any rent money. She answered that she did, and he did not. The trial court then asked: “You just permit him to live there; is that what it is?” And: “It is your home?” Green answered affirmatively to both these questions.
    The trial court may question witnesses to clarify testimony or to promote a better understanding of that testimony. N.C. Gen. Stat. § 8C-1, Rule 614(b); State v. Chandler, 100 N.C. App. 706, 710, 398 S.E.2d 337, 339 (1990). Defendant admits that “[s]tandingalone, this questioning may not have conveyed to the jury the Trial Judge's bias and prejudice against this defendant.” We agree.
    After defendant presented the testimony of Green, the trial court sent the jury out of the courtroom. During discussions with counsel, the trial court ordered defendant to produce his driver's license, which showed his residence as Rocky Mount, not Enfield, where Green's home was located. The trial court then asked the State if they wished to put on any rebuttal evidence. The State recalled Halifax County Deputy Paul Ward, who examined a copy of defendant's driver's history, and defendant's actual driver's license, and testified that they both indicated his license, which was issued 12 April 2004, showed the Rocky Mount address.
    Defendant argues that the actions of the trial court, demanding production of defendant's license and allowing the State to present additional evidence, when considered in light of its prior questioning of Green, indicated bias in favor of the State and undermined Green's credibility.
    We agree that the actions of the trial court in demanding the license be produced were improper, and if done in the presence of the jury would have constituted a basis for reversing the judgment in this case. However, none of this was done in the presence of the jury. Therefore, this act could not possibly have conveyed any prejudicial bias of the trial court to the jury. We fail to see how these actions outside the presence of the jury could indicate a bias in favor of the State and influence a jury's verdict. The jury had no indication why the State was presenting rebuttalevidence, just as they had no indication why defendant decided to present evidence after initially stating that he would not. Defendant points to no conduct in front of the jury during Deputy Ward's testimony that conveyed any bias of the trial court towards him, and we find none. “In sum, defendant has failed to show that any impermissible expression of opinion was made by the trial judge in the presence of the jury or that any conduct or statement by the judge improperly influenced the jury or prejudiced defendant in any manner.” Locklear, 349 N.C. at 146, 505 S.E.2d at 293.
    We note that defendant has limited his argument on appeal to his contention that the actions of the trial court indicated bias against him. Defendant has not preserved for appeal any argument that the actual driver's license was improperly admitted at trial, or that the admission of the license prejudiced him. We note that the evidence establishing that defendant's driver's license showed a Rocky Mount address was also placed before the jury during Green's testimony and Deputy Ward's review of defendant's driver's history, which was admitted into evidence. Deputy Ward also testified that defendant told him he was from Rocky Mount when he was arrested. This argument is without merit.
    Because defendant has not argued his other assignments of error in his brief, they are deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
    NO PREJUDICIAL ERROR.
    Judges WYNN and SMITH concur.
    Report per Rule 30(e).

Footnote: 1