STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 04 CRS 65175
WILLIAM DONNELL HILL 05 CRS 1448
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
Lynne Rupp, for defendant-appellant.
LEVINSON, Judge.
A jury found defendant guilty of possession of a firearm by a
convicted felon, whereupon he admitted his habitual felon status
and was sentenced to an active prison term of 107-138 months.
Defendant gave timely notice of appeal in open court.
The State's evidence tended to show that Winston-Salem Police
Officers T. L. McMasters, William Patterson and Matthew Gfeller
responded to a reported disturbance at 730 Ferrell Court in the
Rolling Hills housing community on the evening of 21 December 2004.
Because McMasters was on patrol in the area, he arrived at the
scene in less than a minute and saw defendant sitting alone in the
driver's seat of a white van parked in front of apartment building730. He stopped his patrol car in front of the van with his blue
lights flashing. Defendant got out of the van and began walking
away from it toward the apartment building. McMasters “immediately
exited [his] vehicle just to try to catch up with him” and engaged
defendant a few feet from the van's driver's side door. As
Patterson and Gfeller arrived at the scene, McMasters asked
defendant to take his hands out of his pockets. When he twice
refused to comply, McMasters informed him that he was under arrest
for delaying his investigation. Defendant ignored McMasters'
command to place his hands behind his back and pulled away from
Patterson's attempt to grab his arm. When McMasters took defendant
by the shoulder, he “attempted to jerk away” and struggled with him
until falling into an air-conditioning unit beside the building.
The officers subdued defendant by spraying his face with an
irritant and placed him in handcuffs. A search of the van revealed
a loaded .357 magnum handgun “between the driver's seat and the
passenger seat on the floor of the car.” The gun was covered by a
shoebox lid and was pointing toward the building with “the butt of
the weapon toward the driver.” No shoebox was found. A license tag
check revealed that the van was registered to defendant's mother.
Defendant told McMasters that “someone tossed the gun in the
car” but was unable to provide the person's name, description or
any other details to support his account. The windows to the van
were closed. McMasters did not see anyone other than defendant in
the van and did not observe anyone else in the general vicinity
other than “maybe two or three girls.” Defendant stipulated to a prior felony conviction for purposes
of the charge of possession of a handgun by a felon. He adduced
testimony from two expert witnesses that the three latent
fingerprints found on the gun did not belong to him. However,
defendant's first expert noted that the gun's wooden handle was
“not a very good surface for leaving fingerprints” and that the
grip area was “almost an impossible surface to get a print off
of[.]” His second expert concurred that the wooden handle had a
patterned surface making it “extremely difficult” to leave
fingerprints “if you could even do it at all.” Neither expert
could offer an opinion on whether defendant had touched the gun.
On appeal, defendant claims the trial court erred in denying
his motion to dismiss the charge at the conclusion of the evidence,
absent proof that he possessed the handgun found inside the van.
He notes that no witness observed him in physical possession of the
gun. Moreover, he argues the State failed to show constructive
possession, either by proof of his “exclusive control over his
mother's van” or by “other incriminating circumstances” linking him
to the gun.
In reviewing the denial of defendant's motion to dismiss, our
task is to determine whether the evidence at trial was sufficient
to allow a reasonable juror to find defendant guilty of each
essential element of the offense beyond a reasonable doubt. See
State v. Vick, 341 N.C. 569, 583, 461 S.E.2d 655, 663 (1995). We
“consider the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference from thatevidence.” State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721
(2001) (citing State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448
(1995)). Moreover, “'all of the evidence actually admitted,
whether competent or incompetent, which is favorable to the State
is to be considered by the court in ruling on the motion.'” State
v. Redd, 144 N.C. App. 248, 256, 549 S.E.2d 875, 881 (2001)
(quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117
(1980)). We do not consider defendant's evidence unless it aids
the State's case or “'it explains or clarifies evidence offered by
the State or is not inconsistent with the State's evidence.'”
State v. Taylor, 337 N.C. 597, 604-05, 447 S.E.2d 360, 365 (1994)
(quoting State v. Lane, 328 N.C. 598, 606, 403 S.E.2d 267, 272
(1991)).
The elements of possession of a firearm by a convicted felon
are (1) the purchase, ownership, possession, custody, care, or
control of (2) any firearm (3) by “any person who has been
convicted of a felony[.]” N.C. Gen. Stat. § 14-415.1(a) (2005).
Here, defendant challenges only the evidence of his possession of
the gun found in the van.
Possession of an object can be actual or constructive. A
person has constructive possession of an object if he does not have
it on his person, but is aware of its presence and has both the
power and intent to control its disposition. See State v.
Williams, 136 N.C. App. 218, 222, 523 S.E.2d 428, 431-32 (1999).
“Evidence of constructive possession is sufficient to support a
conviction if it would allow a reasonable mind to conclude thatdefendant had the intent and capability to exercise control and
dominion over the [contraband].” State v. Matias, 143 N.C. App.
445, 448, 550 S.E.2d 1, 3, aff'd, 354 N.C. 549, 556 S.E.2d 269
(2001).
Constructive possession can be established “from evidence
which tends to show that a defendant was the custodian of the
vehicle where the contr[aband] was found.” State v. Dow, 70 N.C.
App. 82, 85, 318 S.E.2d 883, 886 (1984). We have emphasized that
this inference of constructive possession is not dependent on the
defendant's ownership of the vehicle, as follows:
[T]his Court has consistently held that 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 found in a vehicle under the control of an
accused, even though the accused is the
borrower of the 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.
This inference is rebuttable and if the
accused offers evidence rebutting the
inference, the State must show other
incriminating circumstances before
constructive possession may be inferred.
State v. Tisdale, 153 N.C. App. 294, 298, 569 S.E.2d 680, 682
(2002) (internal quotations and citations omitted); accord State v.
Nettles, 170 N.C. App. 100, 103-04, 612 S.E.2d 172, 175, disc.
review denied, 359 N.C. 640, 617 S.E.2d 286 (2005).
We hold the evidence sufficient to support the jury's finding
that defendant was in constructive possession of the handgun.
Officer McMasters testified without objection that he knew
defendant had driven the van to the apartment building and did notlive there. Moreover, defendant was alone in the van and was
sitting in the driver's seat. Although defendant's mother was the
van's registered owner, the evidence tended to show he had
exclusive custody of the vehicle at the time the gun was found.
Additional circumstances supporting an inference of constructive
possession included the gun's location on the floor of the van in
close proximity to where defendant was seated, its rather makeshift
concealment beneath a shoe box top, defendant's immediate movement
away from the gun and van in response to McMasters' arrival, and
his subsequent attempts to elude apprehension. See State v. Lane,
163 N.C. App. 495, 501-02, 594 S.E.2d 107, 111-12 (2004); State v.
Boyd, 154 N.C. App. 302, 307-08, 572 S.E.2d 192, 196-97 (2002).
This assignment of error is overruled.
Defendant next avers the trial court erred by instructing the
jury on flight. While conceding that he resisted arrest, he argues
the State adduced no evidence that he left the scene of a crime in
order to avoid apprehension or to dispose of inculpatory evidence.
In order to support an instruction on flight, the record must
contain “'some evidence . . . reasonably supporting the theory that
defendant fled after commission of the crime charged.'” State v.
Thompson, 328 N.C. 477, 489-90, 402 S.E.2d 386, 392 (1991) (quoting
State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 435 (1990)).
“Mere evidence that defendant left the scene of the crime is not
enough to support an instruction on flight. There must also be
some evidence that defendant took steps to avoid apprehension.”
Thompson, 328 N.C. at 490, 402 S.E.2d at 392. We again find no error by the trial court. The evidence
showed that defendant reacted to the police's arrival by exiting
the van and walking toward the apartment building, thereby leaving
the locus of his unlawful possession of the gun. As noted by the
State, the fact that defendant “left the scene calmly rather than
running does not eliminate the issue of flight.” State v.
Carswell, 40 N.C. App. 752, 755, 253 S.E.2d 635, 638 (1979).
Moreover, although defendant initially stopped for McMasters, he
“was still trying to make his way towards the 730 building of
Ferrell Court” as McMasters addressed him, jerking away and
struggling with him in an apparent attempt to elude capture.
Officer Patterson described defendant as “walking away” from
McMasters and testified that defendant “resisted by jerking away
and trying to run or get away from the area” when Patterson
attempted to arrest him. (Emphasis added). This evidence was
sufficient “to support an inference that defendant was attempting
to escape apprehension.” State v. Evans, 149 N.C. App. 767, 777,
562 S.E.2d 102, 108 (2002) (citing State v. Beck, 346 N.C. 750,
758, 487 S.E.2d 751, 757 (1997)). Even assuming the instruction
was not warranted where the evidence showed only an unsuccessful
attempt at flight, “defendant argues only that the trial court
erred in its jury instructions and never addresses the effect of
the error on the jury's verdict. Therefore, we find defendant has
failed to show he was prejudiced by the error.” State v.
Hutchinson, 139 N.C. App. 132, 139, 532 S.E.2d 569, 574 (2000);
N.C. Gen. Stat. § 15A-1443(a) (2005). The record on appeal includes additional assignments of error
which are not addressed in defendant's brief to this Court.
Pursuant to N.C.R. App. 28(b)(6), we consider them abandoned.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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