State v. McCoy , 234 N.C. App. 268 ( 2014 )

NO. COA13-933
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Durham County
No. 11CRS061001
PIERCE MCCOY,
Defendant.
Appeal by defendant from judgment entered on or about 19
February 2013 by Judge R. Allen Baddour in Superior Court,
Durham County. Heard in the Court of Appeals 23 January 2014.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Melody Hairston, for the State.
Anne Bleyman, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgment convicting him of possession of
firearm by felon. For the following reasons, we find no error.
I. Background
Defendant was charged with possession of a firearm by a
felon based upon an investigation conducted by Officer Charles
Britt of the fraud unit of the Durham Police Department
Investigations Bureau. Officer Britt testified that he
“download[s] pawn [shop] files every morning and check[s] for
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stolen property[.]” “[A]t the end of every month [Officer Britt]
run[s] all firearms that are pawned at the pawn shops in Durham.
Then [Officer Britt] check[s] to see if either persons that have
sold or pawned firearms are convicted felons.” In 2011, Officer
Britt picked up a buy transaction (“buy ticket”)1 for a firearm
which listed defendant’s name and date of birth. Defendant had
previously been convicted of a felony. At defendant’s trial the
State admitted exhibits, including the buy ticket, a DVD, and an
affidavit of indigency (“affidavit”). A jury found defendant
guilty of possession of a firearm by a felon, and the trial
court entered judgment upon the conviction. Defendant appeals.
II. Defendant’s Signature
Defendant first contends that “the trial court committed
error or plain error in allowing the signature on the affidavit
to be compared to the signature on the buy ticket where the
signatures on the documents were not sufficiently authenticated
nor ruled to be sufficiently similar to each other in violation
1
The “buy transaction” is actually a piece of paper signed by
the individual selling property to the pawn shop. It is
documentary evidence that the individual is selling property to
the pawn shop. The director of operations of the pawn shop
testified that “[a] buy transaction and a pawn transaction are
two different things. . . . A pawn is when you're actually
leaving your merchandise in exchange for money for an extended
period of time; 30 days. A buy transaction, you're literally
relinquishing your rights to the merchandise immediately[.]”
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of . . . [defendant’s] rights.” (Original in all caps.)
Defendant’s arguments are based upon the comparison of his
signature on the buy ticket and his affidavit; defendant claims
that each signature required authentication by either an expert
in handwriting analysis or by a witness who was familiar with
his handwriting based upon knowledge gained outside of this case
in order for the jury to be able to compare them. Defendant is
correct that no witness testified who could identify the
signatures as an expert or based upon familiarity with
defendant’s signature outside of the case, but we disagree with
defendant that such testimony was necessary.
A. Affidavit of Indigency
The State’s last witness was “a Deputy Clerk with the
Durham County Superior Criminal Division.” Through the Deputy
Clerk the State admitted “a certified, true copy” of the
affidavit which was signed by defendant and had his date of
birth on it. The affidavit was “SWORN/AFFIRMED AND SUBSCRIBED
TO BEFORE” a Deputy Clerk of Superior Clerk who also signed the
document, which is a self-authenticating document pursuant to
North Carolina General Statute § 8C-1, Rule 902, and thus the
affidavit did not need to be authenticated pursuant to Rule 901.
See N.C. Gen. Stat. § 8C-1, Rules 901 and 902 (2011). As such,
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the trial court did not err in admitting the affidavit without
consideration of North Carolina General Statute § 8C-1, Rule
901.
B. Comparison of Defendant’s Signature
In determining the authenticity of a
document, it is a well-settled evidentiary
principle that a jury may compare a known
sample of a person’s handwriting with the
handwriting on a contested document without
the aid of either expert or lay testimony.
However, before handwritings may be
submitted to a jury for its comparison, the
trial court must satisfy itself that there
is enough similarity between the genuine
handwriting and the disputed handwriting,
such that the jury could reasonably infer
that the disputed handwriting is also
genuine.
State v. Owen, 130 N.C. App. 505, 509, 503 S.E.2d 426, 429
(1998) (citations and quotation marks omitted) (citing State v.
LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982)), disc. review denied
and appeal dismissed, 349 N.C. 372, 525 S.E.2d 187-88 (1998).
In State v. LeDuc, the case cited in Owen, id., the Supreme
Court noted that the “preliminary determinations[,]” both of
whether one of the handwritings was genuine and whether the
genuine and disputed handwritings were similar, were to be made
by the trial court. 306 N.C. 62, 74, 291 S.E.2d 607, 614
(1982), overruled on other grounds, State v. Childress, 321 N.C.
226, 362 S.E.2d 263 (1987). Yet the Court also stated that
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“[b]oth of these preliminary determinations by the trial judge
are questions of law fully reviewable on appeal.” Id. Thus in
LeDuc, this Court itself made “these preliminary
determinations[.]” Id. (“In the instant case, the samples
shown to the jury for comparison with the disputed charter were
given by the defendant himself. Having examined these samples
with the disputed signature on the charter, we are satisfied
that there is enough similarity between them for the documents
to have been submitted to the jury for its comparison.”) In
Owen, this Court noted that both the trial court and this Court
itself had compared the genuine and disputed handwritings. See
Owen, 130 N.C. App. at 509, 503 S.E.2d at 429-30.
Thus, we must review the evidence to determine if there was
“enough similarity between them for the documents to have been
submitted to the jury for its comparison.” LeDuc, 306 N.C. at
74, 291 S.E.2d at 614. The “known sample” of the signature,
found on defendant’s self-authenticating affidavit, see N.C.
Gen. Stat. § 8C-1, Rule 902, shows the signature of “Pierce E.
McKoy[.]”2 Notable about the signature on the affidavit is the
inclusion of the middle initial followed by a period and that
2
We note that the judgment and documents in the record spell
defendant’s name McCoy with a “c” rather than a “k” as in McKoy.
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the “c” in “McKoy” is underscored with a zigzag line. On the
buy ticket which has the disputed signature, the signature is
also by “Pierce E. McKoy[,] including the middle initial
followed by a period, and the “c” in “McKoy” underscored by a
zigzag line. In fact, all of the letters are formed in
essentially the same way and the signatures are nearly
identical. We are “satisfied that there is enough similarity
between the genuine handwriting and the disputed handwriting,
that the jury could reasonably infer that the disputed
handwriting is also genuine[.]” LeDuc, 306 N.C. at 74, 291
S.E.2d at 614. Thus, the buy ticket with the disputed signature
was properly admitted, and the jury was free to compare the
signature on it with the signature on the self-authenticating
affidavit. See id. Accordingly, this argument is overruled.
III. Motion to Dismiss
Defendant next contends that the trial court erred in
denying his motion to dismiss. Defendant argues that the State
failed to present sufficient evidence that he either actually or
constructively possessed the gun which was sold to the pawn
shop.
The standard of review for a motion to
dismiss is well known. A defendant’s motion
to dismiss should be denied if there is
substantial evidence of: (1) each essential
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element of the offense charged, and (2) of
defendant’s being the perpetrator of the
charged offense. Substantial evidence is
relevant evidence that a reasonable mind
might accept as adequate to support a
conclusion. The Court must consider the
evidence in the light most favorable to the
State and the State is entitled to every
reasonable inference to be drawn from that
evidence. Contradictions and discrepancies
do not warrant dismissal of the case but are
for the jury to resolve.
State v. Teague, 216 N.C. App. 100, 105, 715 S.E.2d 919, 923
(2011) (citation omitted), disc. rev. denied and appeal
dismissed, 365 N.C. 547, 720 S.E.2d 684 (2012).
There are two elements to possession of a
firearm by a felon: (1) defendant was
previously convicted of a felony; and (2)
thereafter possessed a firearm. It is
uncontested that defendant had been
convicted of a felony prior to the date in
question. Therefore, the only element we
must consider is possession.
Possession of any item may be
actual or constructive. Actual
possession requires that a party
have physical or personal custody
of the item. A person has
constructive possession of an item
when the item is not in his
physical custody, but he
nonetheless has the power and
intent to control its disposition.
State v. Mitchell, ___ N.C. App. ___, ___, 735 S.E.2d 438, 442-
43 (2012) (citations and quotation marks omitted).
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Here, as in Mitchell, defendant does not contest that he
has previously been convicted of a felony, so possession is the
only element at issue on appeal. See id. at ___, 735 S.E.2d at
443. Taken in a light most favorable to the State, see Teague,
216 N.C. App. at 105, 715 S.E.2d at 923, the State presented a
DVD showing a man consistent with defendant’s appearance placing
a gun on the pawn shop counter. The State’s evidence also
included a buy ticket with both defendant’s name and date of
birth on it along with defendant’s affidavit uncontestably
signed by defendant. A director of operations for the pawn shop
explained that the individual signing the buy ticket at issue
here is “literally relinquishing [his] rights to the merchandise
immediately[,]” in this case the gun. As discussed above, the
jury could find based upon comparison of the signatures on the
affidavit and the buy ticket that the same person signed both of
them, meaning that the person who placed the gun on the counter
of the pawn shop, sold the gun to the pawn shop, and filled out
the buy ticket, was the defendant. This evidence would permit
the jury to find that the defendant actually possessed the gun
when he brought it to the pawn shop to sell it. This was
substantial evidence upon which to deny defendant’s motion to
dismiss, see Mitchell, ___ N.C. App. at___, 735 S.E.2d at 443;
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Teague, 216 N.C. App. at 105, 715 S.E.2d at 923, and therefore
overrule this argument.
IV. Jury Instructions
Before defendant’s trial he stipulated in writing as to his
prior felony conviction. When the trial court was instructing
the jury it stated,
[O]n February 10th, 2000, in Durham County
Superior Court, the defendant pled guilty to
the felony of possession of a firearm by a
felon that was committed on July 2nd, 1999,
in violation of the laws of the State of
North Carolina. The defendant and the State
have stipulated to this prior conviction.
So, for purposes of . . . this trial you are
to find this element to be proved beyond a
reasonable doubt.” Defendant contends it
was error for the trial court to instruct
the jury in this manner, and the State
agrees.
Defendant failed to object at trial, but now contends it
was plain error for the trial court to inform the jury he had
previously been convicted of the crime possession of a firearm
by a felon. In light of the evidence as noted above, we are not
convinced that the trial court’s statement that defendant had
previously been convicted of the same crime “had a probable
impact on the jury’s finding that the defendant was guilty.”
See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Accordingly,
we overrule this argument.
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V. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges HUNTER, JR., Robert N. and DILLON concur.