How to access the above link?
Return to nccourts.org
Return to the Opinions Page
1. Firearms and Other Weapons--possession of stolen firearm--reasonable grounds to
believe property stolen_sufficiency of evidence
The trial court erred by denying defendant's motion to dismiss the charge of possession of
a stolen firearm, because: (1) although there was evidence that defendant always slept with a gun
in the bed with him at night, there was no evidence regarding the particular gun; (2) although a
witness testified that defendant asked her to tell the officers a story about finding the bag of guns
near the apartment building, defendant's testimony regarding these events was the exact opposite,
(3) there was no testimony or evidence tending to show that defendant had any knowledge about
where the guns came from, much less that one of the eight guns in the apartment was stolen; (4)
no evidence was presented to give an inference that defendant should have had reason to believe
that one of the guns was stolen; and (5) the State's evidence failed to do more than raise a
suspicion or conjecture that defendant knew or had reason to know that one of the firearms was
in fact stolen.
2. Drugs--manufacturing marijuana--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
manufacturing marijuana, because: (1) evidence consisting of the presence of a controlled
substance, when combined with that of packaging materials such as plastic bags, large amounts
of currency, and scales, is sufficient to support a charge of manufacturing marijuana under
N.C.G.S. § 90-95(a)(1); (2) the evidence revealed that when arrested defendant had in his pants
pocket a plastic bag containing marijuana which was the same or similar to the plastic bags found
in the apartment, and a witness testified that defendant resided in the apartment with her and that
she had previously seen defendant near a blue bowl, plastic bags and scales, and that he had been
bagging up marijuana; and (3) although defendant's testimony and the testimony of another
female contradicted the witness's testimony, it was for the jury to resolve the discrepancies and
to determine the credibility of a witness's testimony.
3. Criminal Law--prosecutor's argument-_defense counsel's role
The trial court did not abuse its discretion in a possession of a stolen firearm, forgery,
possession of marijuana, and manufacturing marijuana case by overruling defendant's objection
to remarks made by the prosecutor during her closing argument that the defense's job was to
defend and not to explain, not to be even, and not to be fair, because: (1) the prosecutor neither
used abusive, vituperative, and opprobrious language, nor did her comments amount to an
offensive personal reference about defense counsel; (2) the prosecutor's statements attempted to
explain the role of defense counsel, but did not amount to an attack upon her; (3) when
considered within the context of the prosecutor's entire closing argument, the statements do not
amount to a violation of N.C.G.S. § 15A-1230 or defendant's due process rights; and (4)
defendant failed to show how the statements prejudiced him and resulted in a jury verdict which
would not have been reached absent the statements.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Mary S. Mercer, for the State.
Paul F. Herzog, for defendant-appellant.
JACKSON, Judge.
On 4 September 2003, officers with the Crime Abatement Team of
the Greensboro Police Department went to the Summit Station
Apartments in Greensboro, North Carolina, in search of a female
suspect who was wanted in connection with a robbery which had
occurred the previous day. As the officers arrived at the
apartment, they spotted the suspect standing on the ground floor
engaging in an apparent drug sale with Sophia Dunlap (Dunlap).
As soon as the women realized the men approaching them were police
officers, they ran up the apartment building stairs and
subsequently threw an item over the balcony. Dunlap ran up the
stairs and into Apartment H, where she slammed the door leaving the
suspect outside. The officers retrieved the object the suspect had
thrown, determined that it was a package containing cocaine, and
placed the suspect under arrest.
The officers then proceeded to knock on the door of Apartment
H into which Dunlap had disappeared. Dunlap opened the door and
stepped outside, where she was immediately placed into custody and
arrested for possession of cocaine. The officers noticed a strongodor of marijuana coming from inside the apartment. Believing this
to indicate that other individuals likely were inside, the officers
ordered anyone in the apartment to come out. Subsequently, Jerrold
Lee Brown (defendant) exited the apartment's only bedroom. The
officers searched defendant's person and found a bag containing
marijuana and a large sum of cash. Defendant was then placed under
arrest for possession of marijuana.
The officers obtained a search warrant for the apartment, and
during the search they located and seized the following items:
several digital scales found in the kitchen, inside the kitchen
cabinets, and from under the bed; a Hi-Point 9 millimeter pistol
under the cushion of the only chair in the living room; a plastic
bag containing rice and heroin from inside the bedroom night stand;
mail addressed to Dunlap and a money order receipt showing that
Dunlap sent money to defendant while he was in New York; a
marijuana blunt; a blue mixing bowl with marijuana residue, hand
scales, plastic bags, and a .380 semi-automatic pistol from under
the bed; a Colt .38 Special firearm from under the mattress; a
large bundle of counterfeit currency from the bathroom cabinet; and
six handguns, ammunition, and pistol magazines in a blue nylon bag
from the bedroom closet. During defendant's trial, one of the
handguns found in the blue bag, a Sturm Ruger, Model P90 .45
caliber semi-automatic pistol, was shown to have been stolen.
On 15 March 2004, indictments were filed charging defendant
with the following offenses: possession of a stolen firearm;
maintaining a dwelling for the keeping and selling of controlledsubstances; possession with the intent to sell and deliver heroin;
forgery; possession with the intent to sell and deliver marijuana;
manufacturing marijuana; and possession of marijuana. At trial,
Dunlap testified that she met defendant in July of 2003, and that
they moved in together at the end of that month. She stated that
she and defendant lived together in Apartment H, and that he paid
the monthly rent. According to Dunlap, defendant was still living
in the apartment and paying rent at the time of their arrest.
Dunlap testified that she was charged with the same offenses as
defendant and had pleaded guilty.
With regards to the blue nylon bag containing six guns, Dunlap
stated that she and defendant fabricated a story to tell the
officers how the guns came to be in their possession. She stated
that defendant told her to tell the officers that they found the
bag outside the apartment building after seeing a man run down the
street and throw the bag into the tall grass. Dunlap testified
that at the time she did not know to what bag defendant was
referring, and that defendant then told her about the guns in the
bag. With regards to the drugs and other items seized, Dunlap
testified that she previously had seen defendant with the blue
bowl, plastic bags and scales, and that at the time he had been
bagging up marijuana.
Defendant, who testified on his own behalf, stated that at no
time did he date Dunlap or live in Apartment H with her. He
testified that in 2003 he lived with his girlfriend, Theresa Brown
(Brown), who is also the mother of his child. Brown's owntestimony supported defendant's statement regarding his residence.
Defendant stated that the only reasons he ever went to Dunlap's
apartment were to buy and smoke marijuana, and to sell her various
items including clothing. He also testified that Dunlap was the
one who came up with the story about finding the blue nylon bag.
Defendant stated that he knew there were guns in Dunlap's
apartment, but did not know any of them were stolen.
On 2 December 2005, the jury convicted defendant of possession
of a stolen firearm, forgery, possession of marijuana, and
manufacturing marijuana, and acquitted him of the remaining
offenses. Defendant was sentenced to a prison term of eight to ten
months for his conviction for possession of a stolen firearm. For
the remaining convictions he was given a sentence of fifteen to
eighteen months imprisonment, to run consecutively to his sentence
for the possession of a stolen firearm conviction. Defendant
appeals from his convictions.
[1] Defendant first contends the trial court erred in denying
his motion to dismiss the charge of possession of a stolen firearm,
in that the State failed to present evidence sufficient to support
his conviction. Specifically, defendant contends the State failed
to present substantial evidence that he knew or had reasonable
grounds to believe the property was stolen.
In ruling on a defendant's motion to dismiss, the trial court
must determine whether the State has presented substantial evidence
(1) of each essential element of the offense and (2) of the
defendant's being the perpetrator. State v. Boyd, 177 N.C. App.165, 175, 628 S.E.2d 796, 804 (2006) (citing State v. Robinson, 355
N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006,
154 L. Ed. 2d 404 (2002)). 'Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.' Id. (quoting State v. Matias, 354 N.C. 549, 552,
556 S.E.2d 269, 270 (2001)). When considering a motion to
dismiss, the trial court must view all of the evidence presented
'in the light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any
contradictions in its favor.' Id. (quoting State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S.
1135, 132 L. Ed. 2d 818 (1995)). [H]owever, if the evidence 'is
sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the
perpetrator, the motion to dismiss must be allowed[.]' State v.
Grooms, 353 N.C. 50, 79, 540 S.E.2d 713, 731 (2000), cert. denied,
534 U.S. 838, 151 L. Ed. 2d 54 (2001) (citation omitted).
Contradictions and discrepancies in the testimony or evidence
are for the jury to resolve and will not warrant dismissal. State
v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). Moreover,
determinations of the credibility of witnesses are issues for the
jury to resolve, and they do not fall within the role of the trial
court or the appellate courts. See State v. Hyatt, 355 N.C. 642,
666, 566 S.E.2d 61, 77 (2002) ([I]t is the province of the jury,
not the court, to assess and determine witness credibility.),
cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). When atrial court is considering a defendant's motion to dismiss based
upon an insufficiency of the evidence presented, the trial court
is concerned only with the sufficiency of the evidence to carry
the case to the jury and not with its weight. State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
For a defendant to be found guilty of possession of a stolen
firearm, the State must present substantial evidence that (1) the
defendant was in possession of a firearm; (2) which had been
stolen; (3) the defendant knew or had reasonable grounds to believe
the property was stolen; and (4) the defendant possessed the pistol
with a dishonest purpose. See N.C. Gen. Stat. § 14-71.1 (2003);
State v. Taylor, 311 N.C. 380, 385, 317 S.E.2d 369, 372 (1984). On
appeal, defendant contests only the element regarding whether he
knew or had reasonable grounds to believe the firearm was stolen.
The evidence presented at trial indicated that defendant
always slept with a gun in the bed with him at night, however there
was no evidence regarding the gun with which defendant slept.
Dunlap testified that defendant asked her to tell the officers a
story about finding the bag of guns after a man threw it into the
area near the apartment building; however defendant's testimony
regarding these events was the exact opposite. There was no
testimony or evidence which tended to show that defendant had any
knowledge about from where the guns came, much less that one of the
eight guns in the apartment was stolen. Moreover, no evidence was
presented from which one could infer that defendant should have had
reason to believe that one of the guns was stolen. Without more, we hold the State's evidence failed to do more
than raise a suspicion or conjecture that defendant knew or had
reason to know that one of the firearms was in fact stolen.
Therefore, we hold the State failed to present sufficient evidence
that defendant knew or had reason to believe that the Sturm Ruger
semi-automatic pistol found in the blue nylon bag was stolen. As
such, defendant's motion to dismiss the charge of possession of a
stolen firearm should have been granted. Defendant's conviction
for this offense thus is vacated.
[2] Next, defendant argues the trial court erred in denying
his motion to dismiss the charge of manufacturing marijuana, in
that the State failed to present evidence sufficient to support his
conviction. Specifically, defendant contends there was
insufficient evidence presented showing he manufactured the
marijuana by repackaging it. Defendant alleges he merely was found
in the apartment and no more.
Our courts have held that evidence consisting of the presence
of a controlled substance, when combined with that of packaging
materials such as plastic bags, large amounts of currency, and
scales, is sufficient to support a charge of manufacturing
marijuana pursuant to North Carolina General Statutes, section 90-
95(a)(1). See State v. Perry, 316 N.C. 87, 99, 340 S.E.2d 450,
457-58 (1986); State v. Jones, 97 N.C. App. 189, 202, 388 S.E.2d
213, 220 (1990). The term manufacture, as defined in the
statute, includes the packaging and repackaging of the controlled
substance. N.C. Gen. Stat. § 90-87(15) (2003). The evidence presented at trial showed that when arrested,
defendant had in his pants pocket a plastic bag containing
marijuana which was the same or similar to the plastic bags found
in the apartment. Moreover, Dunlap testified that defendant
resided in the apartment with her, and that she previously had seen
defendant near the blue bowl, plastic bags and scales, and that he
had been bagging up marijuana. While defendant's testimony, and
that of Brown contradicted Dunlap's testimony, it was for the jury
to resolve the discrepancies and to determine the credibility of a
witness' testimony. Thus, as there was substantial evidence
presented indicating that defendant manufactured marijuana by
packaging it, the trial court acted properly in denying defendant's
motion to dismiss the charge of manufacturing marijuana.
[3] Finally, defendant contends the trial court erred in
overruling defendant's objection to remarks made by the prosecutor
during her closing argument. During her closing argument,
prosecutor Stephanie Reese stated Ms. Bailey and the defense's job
is to defend. Not to explain, not to be even, not to be fair. Her
job is to defend. Defendant contends this statement constituted
an improper attack on defense counsel Sabrina Bailey's character
and integrity, and that the trial court should have instructed the
jury to disregard the prosecutor's statement.
On appeal, [t]he standard of review for improper closing
arguments that provoke timely objection from opposing counsel is
whether the trial court abused its discretion by failing to sustain
the objection. State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97,106 (2002) (citing State v. Huffstetler, 312 N.C. 92, 111, 322
S.E.2d 110, 122 (1984) (holding that appellate courts will review
the exercise of such discretion when counsel's remarks are extreme
and calculated to prejudice the jury), cert. denied, 471 U.S. 1009,
85 L. Ed. 2d 169 (1985)). A trial court will be found to have
abused its discretion when the ruling could not have been the
result of a reasoned decision. State v. Burrus, 344 N.C. 79, 90,
472 S.E.2d 867, 875 (1996). Further, it is well-established that
counsel are to be given wide latitude in their closing arguments to
the jury. See State v. Forte, 360 N.C. 427, 444, 629 S.E.2d 137,
148-49, cert. denied, __ U.S. __, 166 L. Ed. 2d 413 (2006); State
v. Richardson, 342 N.C. 772, 792-93, 467 S.E.2d 685, 697, cert.
denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996). Under an abuse of
discretion standard of review, '[a] prosecutor's improper remark
during closing arguments does not justify a new trial unless it is
so grave that it prejudiced the result of the trial.' State v.
Rashidi, 172 N.C. App. 628, 642, 617 S.E.2d 68, 77-78 (quoting
State v. Glasco, 160 N.C. App. 150, 158, 585 S.E.2d 257, 263, disc.
review denied, 357 N.C. 580, 589 S.E.2d 356 (2003)), aff'd, 360
N.C. 166, 622 S.E.2d 493 (2005).
In reviewing whether the trial court abused its discretion,
this Court must first determine if the remarks were in fact
improper. Jones, 355 N.C. at 131, 558 S.E.2d at 106. North
Carolina General Statutes, section 15A-1230 provides that:
During a closing argument to the jury an
attorney may not become abusive, inject his
personal experiences, express his personal
belief as to the truth or falsity of theevidence or as to the guilt or innocence of
the defendant, or make arguments on the basis
of matters outside the record except for
matters concerning which the court may take
judicial notice. An attorney may, however, on
the basis of his analysis of the evidence,
argue any position or conclusion with respect
to a matter in issue.
N.C. Gen. Stat. § 15A-1230(a) (2005). Rule 12 of the General Rules
of Practice for the Superior and District Courts in North Carolina
provides that [a]ll personalities between counsel should be
avoided and [a]busive language or offensive personal references
are prohibited. Gen. R. Pract. Super. and Dist. Ct. 12, 2005 Ann.
R. N.C. 11. Moreover, [a] trial attorney may not make
uncomplimentary comments about opposing counsel, and should
'refrain from abusive, vituperative, and opprobrious language, or
from indulging in invectives.' Grooms, 353 N.C. at 83, 540 S.E.2d
at 733-34 (quoting State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d
33, 39 (1994)). Next, we determine if the remarks were of such a
magnitude that their inclusion prejudiced defendant, and thus
should have been excluded by the trial court. Jones, 355 N.C. at
131, 558 S.E.2d at 106 (citations omitted). Defendant argues that
the prosecutor's statements violated not only section 15A-1230, but
also defendant's due process rights under the Fourteenth Amendment
to the U.S. Constitution, and Article I section nineteen of the
North Carolina Constitution.
In the instant case, the prosecutor neither used abusive,
vituperative, and opprobrious language nor did her comments amount
to an offensive personal reference about defense counsel. The
prosecutor's statements, although not worded as carefully as theymay have been, attempted to explain the role of defense counsel
Bailey, but did not amount to an attack on her. When considered
within the context of the prosecutor's entire closing argument, the
statements do not amount to a violation of section 15A-1230 or
defendant's due process rights. In addition, defendant has failed
to show this Court how the prosecutor's statements prejudiced him
and resulted in a jury verdict which would not have been reached
absent the statements. Therefore, we hold the trial court did not
abuse its discretion in denying defendant's motion.
Vacated in part; No error in part.
Judges CALABRIA and GEER concur.
*** Converted from WordPerfect ***