Converted WP file 051573-1

Appeal by defendant from judgments entered 17 May 2005 by Judge W. David Lee in Guilford County Superior Court. Heard in the Court of Appeals 24 July 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State.

Gilda C. Rodriguez, for defendant-appellant.

MARTIN, Chief Judge.

     Defendant appeals from judgments imposed after his conviction by a jury of misdemeanor resisting a public officer, misdemeanor possession of marijuana, felonious possession of a firearm by a felon, and habitual felon status. The court sentenced defendant to an active term of 60 days for the misdemeanors and to a minimum term of 168 months and a maximum term of 211 months for the felony.
    The State presented evidence tending to show that on 21 October 2003, Officer E.K. Wrenn of the Greensboro Police Department was patrolling a parking lot known as a high incident area for underage drinking and illegal drug activity. Officer Wrenn observed a vehicle parked so near a tree that the driver of the vehicle could not exit the vehicle. The officer observed fourpeople inside the car. He turned on the “take down” lights of his cruiser and illuminated the area inside the vehicle. He observed two men in the front seat bending over the seat or glove box area of the vehicle. The officer approached the vehicle and initiated a conversation with the male passenger, subsequently identified as defendant, seated in the front seat. Officer Wrenn asked defendant to step out of the car. Defendant got out, shut the door, and then ran. Officer Wrenn and Officer M.J. Harris, who had arrived to assist, apprehended defendant. Defendant resisted when the officers attempted to place handcuffs on his wrists. The officers ultimately subdued defendant by spraying defendant with mace.
    The officers brought defendant back to the vehicle, searched defendant's person incident to arrest, and found nine baggies containing marijuana. The officers also found a couple of baggies containing green material laying on the console of the vehicle, a small metal scale between the console and passenger seat, and a loaded Bersa .380 caliber handgun sticking out beneath the passenger seat where defendant had been seated. The police subsequently determined that the handgun had been stolen. On 29 October 2003, Officer Wrenn visited defendant in the jail to formally charge defendant with the additional charge of possession of a stolen firearm. Defendant told Officer Wrenn that when he purchased the gun he did not know it had been stolen.
    By his sole assignment of error, defendant contends the court erred by denying his motion to dismiss the charge of possession of a firearm by a felon.    A motion to dismiss requires the court to determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). In ruling upon the motion, the 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. State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581 (1975). “If there is substantial evidence _ whether direct, circumstantial, or both _ to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
    At issue in this case is whether the State presented substantial evidence to show defendant possessed the firearm found under the passenger seat of the automobile. Possession of an item may be actual, as when the person has actual physical custody of the item, or constructive, as when the person has the power to control the item's disposition or use. State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). Examples of evidence of constructive possession sufficient to take a charge to the jury include the discovery of the item on premises under the exclusive control of the defendant or the presence of the contraband item “within such close juxtaposition” to the defendant as to justify a conclusion that the item was in the defendant's possession. State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972).     Viewed in the light most favorable to the State, the evidence in the case at bar shows that the gun was found beneath the passenger seat where defendant was seated. Defendant was arrested and charged with possession of a firearm by a felon. Several days later, when defendant was notified of the additional charge of possession of a stolen firearm, he made a voluntary statement that he did not know the gun was stolen when he bought it.
    Based upon this evidence, we conclude a jury could reasonably infer that defendant possessed the handgun found under the passenger seat. We hold the court properly denied the motion to dismiss.
    No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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