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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1055


Filed: 01 May 2007


         v.                        Wake County
                                No. 05 CRS 120264

    Appeal by defendant from judgment entered 26 April 2006 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 9 April 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jane T. Hautin, for the State.

    M. Jason Williams, for defendant-appellant.

    STEELMAN, Judge.

     The State's evidence showed that a handgun was found under defendant's jacket in the back seat of a motor vehicle where defendant had been sitting. Defendant repeatedly asked to be able to retrieve his jacket from the vehicle, prior to the officer conducting a consent search of the vehicle. This was sufficient evidence of constructive possession of the handgun to withstand defendant's motion to dismiss at the close of the State's evidence.
    The State presented evidence tending to show that on 3 December 2005, Sergeant Jacques Gilbert of the Apex Police Department observed a burgundy Cadillac parked at a town park. He saw two men, one of whom he identified as Anthony Tate, standing at the rear of the vehicle. He saw defendant and two females seatedin the back seat of the vehicle. Gilbert spoke to defendant, who stepped out of the vehicle with the two females, about an unrelated matter. Noticing that defendant kept looking back at the vehicle, Gilbert asked Anthony Tate, who owned the vehicle, for permission to search the vehicle. Tate consented. Before Gilbert could begin to search the vehicle, defendant on three occasions asked to be allowed to retrieve his jacket from the inside of the vehicle. Gilbert refused, citing concern for his safety. Gilbert picked up the jacket lying on the back seat and found a nine millimeter handgun underneath the jacket. Defendant identified the jacket as belonging to him.
    Defendant did not present any evidence. Defendant stipulated that he had previously been convicted of a felony. Defendant was found guilty of possession of a firearm by a felon and received an active sentence of 16-20 months imprisonment. Defendant appeals.
    In his first argument, defendant contends that the trial court erred by denying his motion to dismiss for insufficient evidence. We disagree.
     A motion to dismiss requires a trial 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). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Whether the evidence is direct, circumstantial orboth, if there is substantial evidence to support a finding that the defendant committed the charged offense, then 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). In ruling upon the motion, the trial 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).
     Defendant argues the evidence is insufficient to show he possessed the handgun. 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). Constructive possession may be found when the item is discovered on premises under the exclusive control of the defendant or “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, 187 S.E.2d 706, 714 (1972) (internal citation omitted). However, when the contraband material is found on premises where the defendant does not have ownership or exclusive control, the State must show other incriminating circumstances before constructive possession of the item may be inferred. State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
    We conclude the State presented sufficient evidence to permit a jury to find defendant had constructive possession of the gun. Gilbert found the gun underneath defendant's jacket on the left side of the back seat of the vehicle where defendant had been sitting. Defendant's knowledge of the gun's presence may be inferred from evidence that defendant made three requests to retrieve his jacket and he made the requests after consent to search was given. The third request suggested panic or desperation, as Gilbert testified that just as he opened the rear door of the vehicle, defendant shouted, “Jacques, I need to get my jacket out of the car.” The owner of the vehicle, who had given consent to search, testified that the gun did not belong to him. This argument is without merit.
    In his second argument, defendant contends that the indictment is fatally defective in that it fails to specify the verdict and judgment rendered against him. Consequently, he submits, the trial court lacked jurisdiction. We disagree.
    An indictment charging one with possession of a firearm by a convicted felon “must set forth the date that the prior offense was committed, the type of offense and the penalty therefor...and the verdict and judgment rendered therein.” N.C. Gen. Stat. § 14- 415.1(c) (2005). Even though the foregoing statute contains mandatory language, the omission of a required allegation does not necessarily negate the trial court's jurisdiction. State v. Inman, 174 N.C. App. 567, 569-70, 621 S.E.2d 306, 308-09 (2005), disc. review denied, N.C. , 638 S.E.2d 907 (2006). In State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004), we held the omission of an allegation regarding the penalty for the prioroffense is not material and does not affect a substantial right because the defendant “is no less apprised of the conduct which is the subject of the accusation than he would have been if the penalty for the prior conviction had been included in the indictment.” In Inman, we ruled the omission of an allegation as to the date of the prior conviction was not fatal to jurisdiction because it was not a material allegation. We stated, “[t]his conclusion is especially appropriate where, as here, defendant stipulated to the prior conviction at trial and challenged only whether he was in possession of a firearm.” Inman, at 571, 621 S.E.2d at 309.
Here, the indictment charged that defendant “had previously been convicted of the felony of Possession with Intent to Sell & Deliver Cocaine, which is punishable as a Class H felony with a maximum punishment of eight (8) months. The defendant committed this felony on June 12, 2002 and was convicted on July 1, 2003 in Wake County Superior Court.” We conclude this indictment adequately apprised defendant of the prior felony conviction. Whether the prior conviction was the result of a plea or jury verdict is not material. It is noteworthy that defendant did stipulate to the prior conviction. This argument is without merit.
    In defendant's final argument, he contends that the trial court committed plain error by failing to instruct the jury regarding his exercise of his right not to testify. We disagree.
    At the jury instruction conference, defendant requested that the trial court instruct the jury as to the effect of his decisionnot to testify and the judge agreed to give this instruction. In its instruction to the jury, the trial court omitted this instruction. Prior to sending the verdict sheet back to the jury, the trial court gave counsel the opportunity to object to the jury charge, as given. Upon being advised by counsel for defendant that he had failed to give the requested instruction, the trial court brought the jury back into the courtroom and gave them the omitted instruction. Defendant did not object to the additional instruction.
    Plain error is present only if the error was so fundamental that, absent the error, the jury probably would have reached a different result. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). The trial court did give the requested instruction immediately upon having its omission called to its attention. We fail to discern how a different result would have been reached if the instruction had been given as part of the original charge.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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