State v Ross, (05-1476) 07/05/2006

Appeal by defendant from judgment entered 28 June 2005 by Judge Franklin F. Lanier in the Superior Court in Forsyth County. Heard in the Court of Appeals 26 June 2006.

Attorney General Roy Cooper, by Assistant Attorney General Lisa Bradley Dawson, for the State.

Don Willey, for defendant-appellant.

HUDSON, Judge.

    Defendant appeals from a judgment imposed on jury verdicts finding him guilty of possession of a firearm by a felon and of habitual felon status. We find no error.
    The State presented evidence tending to show that on 7 March 2002, defendant pled guilty to felonious possession of cocaine. On 8 May 2003, Marty E. Martin went to a friend's apartment. As Martin watched a basketball game, defendant came out of a back bedroom holding a small black revolver with a brown handle. Defendant removed all of the bullets but one, pointed the gun at Martin, and pulled the trigger. Defendant placed the gun to Martin's head. Martin attempted to leave but defendant ran over and locked the door. Martin and defendant engaged in a struggle. The gun discharged and a bullet struck Martin's arm. Martin fled from the apartment. As Martin walked up a flight of steps headed back to his automobile, he looked back and saw defendant standing at the bottom of the stairs, approximately eight feet from the door of the apartment.
    On 9 May 2003, defendant gave a statement to Detectives Michael Poe and D.C. Taylor of the Winston Salem Police Department. Defendant said that he wrapped the gun in a tee shirt and placed it in some bushes near a dumpster at the far end of his apartment building. Defendant also stated that he was not sure the gun was still there because he had asked a friend to retrieve it. Defendant described the gun as a small black revolver with a brown handle. The detectives searched for a gun at the location identified by defendant but could not find one there. The detectives did find, however, a gun wrapped in a tee shirt behind a big bush along a wall near the bedroom window of the apartment where defendant was residing and where Martin was shot. Detective Poe identified the gun as a .22 caliber revolver, consistent with the description given by Martin of the gun exhibited to him by defendant.
    Defendant did not present any evidence.
     Defendant first argues that the court erred by denying his motion to dismiss the charge of possession of a firearm by a felon. We disagree.
    A motion to dismiss is properly denied if substantial evidence is presented to establish every element of the charged offense andto identify the defendant as the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002).
    As of 8 May 2003, N.C. Gen. Stat. § 14-415.1(a) provided:
        It shall be 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, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).

        Every person violating the provisions of this section shall be punished as a Class G felon.

        Nothing in this subsection would prohibit the right of any person to have possession of a firearm within his own home or on his lawful place of business.

N.C. Gen. Stat. § 14-415.1(a) (2003).   (See footnote 1) The first paragraph defines the offense and the third paragraph creates an exception by permitting a convicted felon to have possession of a firearm within his home or lawful place of business. State v. McNeill, 78 N.C. App. 514, 516, 337 S.E.2d 172, 173 (1985), disc. review denied, 316 N.C. 383, 342 S.E.2d 904 (1986). Defendant argues that the State's evidence established that he possessed the gun within his home. He contends that the evidence is insufficient to establish that hepossessed the gun outside of his home.
    In deciding a motion to dismiss, a court must examine the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). When the evidence is so considered, it shows that defendant possessed the gun not only inside the apartment but outside of it as well. Defendant's statement to the officers established that he carried the gun outside of his apartment and placed it near the dumpster. The officers found the gun outside his apartment in a common area of the complex. The exception permitting a convicted felon to have possession of a firearm within his own home “does not encompass common areas of an apartment house, such as stairways, hallways and porches.” State v. McNeill, 78 N.C. App. at 516, 337 S.E.2d at 173. We overrule this assignment of error.
    Defendant next argues that the court erred by sentencing him as a habitual felon because the same prior felony conviction was used to convict defendant of the substantive offense and of habitual felon status. This Court rejected this argument in State v. Glasco, 160 N.C. App. 150, 160, 585 S.E.2d 257, 264, disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003). This assignment of error is without merit.
    Defendant also argues that his conviction of habitual felon status should be vacated because the jury was not properly impaneled. We disagree.    The record shows that after the jury rendered its verdict on the substantive felony, the court dismissed the jurors to return to the pool. Defendant subsequently indicated to the court that he had changed his mind about pleading guilty to habitual felon status. The court then called the jurors back into the box and proceeded to try the habitual felon charge. Defendant contends that the court should have inquired of the jurors whether they received any information concerning the case after they were released, allowed defendant to question them, and impaneled them again in accordance with statutory mandates.
    This Court has held that the failure to re-impanel the jury to try a habitual felon charge is technical error and does not warrant a new trial unless the defendant shows prejudice. State v. Keyes, 56 N.C. App. 75, 78-9, 286 S.E.2d 861, 863-864 (1982). The record fails to show that defendant objected to the lack of re-impanelment of the jury or requested to examine the jurors. Before the court initially discharged the jury, the court asked defense counsel whether he “had anything further for this jury from the defendant” and defendant replied in the negative. The court thereupon discharged the jury. “A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c). We overrule this assignment of error.
    No error.
    Judges MCCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1