An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 October 2006
STATE OF NORTH CAROLINA
v. Guilford County
No. 03 CRS 103572
RYAN LEWIS LITTLE
Appeal by defendant from judgment entered 21 April 2004 by
Judge Anderson D. Cromer in Guilford County Superior Court. Heard
in the Court of Appeals 29 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Richard Bradford, for the State.
James N. Freeman, Jr., for defendant-appellant.
Ryan Lewis Little (defendant) appeals from judgment entered
after a jury found him to be guilty of possession of a firearm by
a felon. We find no error.
The State's evidence tended to show on 7 November 2003 at
approximately 8:31 a.m., Greensboro Police Officer A.D. Reed
(Officer Reed) responded to a call reporting a suspicious
person was casing the area of Gatewood Avenue and Textile Drive.
As Officer Reed drove west on Woodside Drive, he saw defendant, who
matched the description of the suspicious person, standing beside
a shed located one block from the location identified in the call.
Officer Reed stopped his car approximately forty to fifty feetaway from defendant and motioned to defendant to come to his patrol
car. Defendant complied. As defendant walked toward the car,
Officer Reed's microphone fell to the floor of his vehicle and his
attention was diverted away from defendant for five to six seconds.
Defendant was approximately twenty feet from the patrol car when
Officer Reed replaced the microphone and re-established eye contact
Officer Reed informed defendant he was investigating the area
for a suspicious person in response to a call he had received and
that defendant matched the description. Officer Reed asked
defendant if he would consent to a search of his person, which
defendant granted. At Officer Reed's request, defendant also
agreed to wait in the patrol car while Officer Reed investigated
the area. Defendant was not under arrest or handcuffed at this
Officer Reed walked across the grass to the area where he
first noticed defendant standing. The grass was covered with dew
and Officer Reed's boots got wet as a result. Officer Reed
discovered a loaded .38 caliber revolver within two feet of where
he originally observed defendant and in the area where he lost eye
contact with defendant. The revolver was dry. The revolver was
later confirmed to be stolen.
Although defendant was the only person in the area observed by
Officer Reed, officers were unable to determine defendant's
movements prior to Officer Reed's arrival. The police officers
used police dogs to search the area around the shed where defendantwas first seen by Officer Reed. No other tracks were discovered
and the grass around the shed had not been disturbed.
Defendant stipulated to being a convicted felon. The jury
found him to be guilty of possession of a firearm by a felon and
not guilty of possession of a stolen firearm. Defendant was
sentenced to twenty to twenty-four months imprisonment. Defendant
filed a petition for a writ of certiorari with this Court on 26
Defendant contends the trial court erred in: (1) denying his
pro se motion for a continuance in violation of his constitutional
right to counsel and (2) denying his motion to dismiss based on
insufficiency of the evidence.
Defendant's remaining assignments of error are not addressed
in his brief to this Court and are abandoned. N.C.R. App. P.
III. Notice of Appeal - Writ of Certiorari
On 26 June 2006, defendant filed a petition for a writ of
certiorari with this Court. We allow this petition.
Rule 4(a) of the North Carolina Rules of Appellate Procedure
Any party entitled by law to appeal from a
judgment or order of a superior or district
court rendered in a criminal action may take
appeal by (1) giving oral notice of appeal at
trial, or (2) filing notice of appeal . . .
within 14 days after entry of the judgment or
N.C.R. App. P. 4(a) (2006). Further, Rule 9(a)(3)(h) of the NorthCarolina Rules of Appellate Procedure provides that a copy of the
notice of appeal or an appropriate entry or statement showing
appeal taken orally . . . . shall be included in the record on
appeal. N.C.R. App. P. 9(a)(3)(h) (2006).
Here, neither the trial transcript nor the judgment indicates
defendant gave oral notice of appeal after trial. Further, the
record on appeal does not contain a written notice of appeal.
Although the record includes appellate entries which indicate
defendant gave notice of appeal, they were filed on 2 August 2005,
approximately fifteen months after entry of the judgment. Even if
the appellate entries were filed within fourteen days after entry
of the judgment, they are insufficient to preserve a defendant's
right to appeal. See State v. Blue, 115 N.C. App. 108, 113, 443
S.E.2d 748, 751 (1994) (holding defendant did not preserve his
right to appeal his conviction where the record on appeal included
appellate entries but did not include a written notice of appeal).
[W]hen a defendant has not properly given notice of appeal,
this Court is without jurisdiction to hear the appeal. State v.
McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal
dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005). Accordingly, we are
compelled to dismiss defendant's appeal. See Id. at 638, 615
S.E.2d at 320 (Rule 27(c) of the Rules of Appellate Procedure
prohibits this Court from granting defendant an extension of time
to file his notice of appeal since compliance with the requirements
of Rule 4(a)(2) is jurisdictional and cannot simply be ignored by
this Court.) While this Court cannot hear defendant's direct appeal, we
have discretion to consider the matter by granting a petition for
writ of certiorari. The writ of certiorari may be issued in
appropriate circumstances by either appellate court to permit
review of the judgments and orders of trial tribunals when the
right to prosecute an appeal has been lost by failure to take
timely action . . . . N.C.R. App. P. 21(a)(1) (2006). We allow
defendant's petition and address the merits of his assignments of
IV. Motion to Continue
A. Request for New Counsel
Defendant first contends the trial court erred in denying his
pro se motion for a continuance in violation of his constitutional
right to counsel. We disagree.
During the morning defendant's trial was set to begin that
afternoon, defendant requested a continuance to afford him an
opportunity to hire his own counsel. Defendant informed the trial
court he was unhappy with his court-appointed counsel because
counsel had only met with defendant on one occasion at which time
they discussed a plea bargain offered by the State. The trial
judge asked defense counsel if he was prepared to go forward with
trial. Counsel responded in the affirmative. The trial court did
not immediately rule on defendant's motion. Rather, the trial
court directed defendant to meet with his court-appointed attorney
for approximately thirty minutes. After meeting with his attorney,
the following exchange occurred between the trial court anddefendant:
THE COURT: Mr. Little, you've had a chance to
talk to Mr. Troutman. Do you still wish to
have other counsel?
THE DEFENDANT: Yes, your honor.
THE COURT: All right. Tell me why.
THE DEFENDANT: Because, your honor, I feel as
if he doesn't have a chance on this case.
I've spoken with him about it. He feels the
. . . .
THE DEFENDANT: I'd like to have my own
attorney. Is that possible?
THE COURT: Let me ask you this, sir? Can you
THE DEFENDANT: Yes, sir.
THE COURT: Well, was Mr. Troutman hired or
was he court-appointed?
THE DEFENDANT: He was court-appointed.
THE COURT: How long have you been in jail?
THE DEFENDANT: I've been in jail since
THE COURT: Now, how has your financial
situation changed to the better since you've
been in jail.
THE DEFENDANT: I want to speak with my
grandmother and grandfather.
THE COURT: Have they come to visit you since
you've been in jail?
THE DEFENDANT: Yes, sir.
THE COURT: Why didn't you speak with them
about hiring an attorney?
THE DEFENDANT: Really, I thought I had a
chance with Mr. Troutman.
. . . .
THE COURT: Sir, I'm going to deny your motion
for new counsel, and I'm going to deny your
request for a continuance. If there is a
witness that you need to have subpoenaed, that
Mr. Troutman is unable to find out about until
just about 30 minutes ago, I may reconsider a
motion to continue. But unless there is
something I can put my hands around to
continue this, I'm not going to do it. So
we'll start at two o'clock.
B. Standard of Review
[A] motion for continuance is ordinarily left to the sound
discretion of the trial court 'whose ruling thereon is not subject
to review absent an abuse of such discretion.' State v. Bunch,
106 N.C. App. 128, 131, 415 S.E.2d 375, 377 (quoting State v.
Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982)), disc. rev.
denied, 332 N.C. 149, 419 S.E.2d 575 (1992). Even where the motion
to continue potentially raises a constitutional issue, its denial
results in a new trial only when the defendant shows 'that the
denial was erroneous and also that his case was prejudiced as a
result of the error.' Bunch, 106 N.C. App. at 131-32, 415 S.E.2d
at 377 (quoting Branch, 306 N.C. at 104, 291 S.E.2d at 656).
Here, defendant moved for a continuance stating he felt his
court-appointed counsel was unprepared because defendant and
counsel had only met once, at which time a plea bargain offered by
the State was discussed. Defendant also informed the trial court
that he wanted to hire his own counsel. In response to the trial
court's inquiry, defendant's court-appointed counsel informed the
trial court that he was prepared to go forward with the trial.
Before ruling on the motion, the trial court instructed defendantto meet with his counsel for thirty minutes to discuss his case.
Although defendant argues he and counsel disagreed about whether he
should have accepted the plea bargain offered by the State and some
other issues relating to his case, our Supreme Court has stated
that [i]n the absence of a conflict which presents . . . a Sixth
Amendment problem, the trial court has discretion to decide whether
to grant a continuance during the course of trial for the
substitution of counsel, and that decision will be reversed only if
the court has abused its discretion. State v. Sweezy, 291 N.C.
366, 372, 230 S.E.2d 524, 529 (1976). Here, defendant has failed
to show that any conflict between him and his counsel presents a
Sixth Amendment issue or that the trial court abused its discretion
in denying defendant's motion. Under these circumstances,
defendant also failed to show the trial court abused its discretion
in denying his motion to continue. This assignment of error is
Defendant also failed to establish he was prejudiced by the
trial court's denial of his motion to continue. Defendant has not
argued his court-appointed counsel was ineffective in representing
him at trial. Counsel cross-examined witnesses, presented a
defense, and argued on defendant's behalf. The jury found
defendant not guilty on one of the two charges pending against him.
This assignment of error is overruled.
V. Motion to Dismiss
Next, defendant contends the trial court erred by denying hismotion to dismiss based on insufficiency of the evidence. We
A motion to dismiss should be denied if 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. State v. Barnes, 334 N.C.
67, 75, 430 S.E.2d 914, 918 (1993). When reviewing a motion to
dismiss based on insufficiency of the evidence, this Court must:
view the evidence in the light most favorable
to the State, giving the State the benefit of
all reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve . . . .
Once the court decides that a reasonable
inference of defendant's guilt may be drawn
from the circumstances, then it is for the
jury to decide whether the facts, taken singly
or in combination, satisfy [it] beyond a
reasonable doubt that the defendant is
Id. at 75-76, 430 S.E.2d at 918-19 (internal quotations omitted).
The test for sufficiency of the evidence remains, whether the
evidence is direct or circumstantial or both. Id. at 75, 430
S.E.2d at 918-19. In borderline or close cases, our courts have
consistently expressed a preference for submitting issues to the
jury . . . . State v. Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d
506, 510 (1985), disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33
(1986) (quotations omitted).
Defendant was charged with possession of a firearm by a felon
in violation of N.C. Gen. Stat. § 14-415.1. This statute provides
it is unlawful for any person who has been convicted of a felony
to purchase, own, possess, or have in his custody, care, or controlany firearm or any weapon of mass death and destruction as defined
in G.S. 14-288.8(c). N.C. Gen. Stat. § 14-415.1(a) (2005).
Defendant stipulated to and does not challenge his status as a
convicted felon. His sole contention on appeal is the evidence was
insufficient for the jury to find he possessed the firearm. He
argues because no one saw him in possession of the revolver, and
since he complied with Officer Reed's requests, there was
insufficient evidence he possessed the revolver.
Possession may either be actual or constructive. When the
defendant, while not having actual possession, . . . has the intent
and capability to maintain control and dominion over the
[property], he has constructive possession of the item. State v.
Glasco, 160 N.C. App. 150, 156, 585 S.E.2d 257, 262 (internal
quotation omitted), disc. rev. denied, 357 N.C. 580, 589 S.E.2d 356
This Court has previously emphasized that constructive
possession depends on the totality of the circumstances in each
case. No single factor controls, but ordinarily the questions will
be for the jury. Id. at 156-57, 585 S.E.2d at 262.
Considering the evidence in the light most favorable to the
State and giving the State the benefit of every reasonable
inference that may be drawn, Officer Reed discovered a loaded .38
caliber revolver within two feet of the area where defendant was
located, when Officer Reed originally observed defendant, and in
the same area where he lost eye contact with defendant. Although
dew was present on the grass and Officer Reed's boots got wet as a
result of the dew, the revolver was dry. Further, police officersdid not find tracks or evidence that other individuals had been in
the area where the gun was discovered. The State presented
sufficient evidence to carry the case to the jury. The trial court
properly denied defendant's motion to dismiss. This assignment of
error is overruled.
Defendant has failed to show the trial court abused its
discretion in denying his motion for new counsel or to continue.
The trial court did not err in denying defendant's motion to
dismiss. Defendant received a fair trial free from prejudicial
errors he preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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