State v. Bailey ( 2014 )

NO. COA13-1326
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Person County
No. 11 CRS 52522
SHAWN RONDEL BAILEY
Appeal by defendant from judgment entered 17 September 2013
by Judge Henry W. Hight, Jr. in Person County Superior Court.
Heard in the Court of Appeals 18 March 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood, for the State.
Winifred H. Dillon for defendant.
HUNTER, Robert C., Judge.
Defendant Shawn Bailey appeals the judgment entered after a
jury convicted him of possession of a firearm by a convicted
felon. On appeal, defendant argues that the trial court erred
in denying his motion to dismiss for insufficiency of the
evidence.
After careful review, because the State failed to produce
circumstantial evidence that defendant constructively possessed
the firearm, we reverse the order denying his motion to dismiss.
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Background
On 25 November 2011, Deputy Dustin Harris (“Deputy Harris”)
and Deputy Adam Norris (“Deputy Norris”) of the Person County
Sheriff’s office were standing outside the law enforcement
center in Roxboro when they heard multiple, rapidly-fired
gunshots coming from the Harris Gardens Apartments (“the
apartments”). Deputies Harris and Norris responded to the scene
of the gunshots. As Deputy Harris entered the apartment
complex, he saw a dark-colored, four-door sedan leaving. A
female was driving the car, and defendant was in the passenger
seat. The driver was later identified as Sherika Torrain (“Ms.
Torrain”), defendant’s girlfriend. The car was registered to
defendant. Deputy Harris turned his car around, followed the
sedan briefly, and then stopped it. Deputy Harris asked if
there were any weapons in the car; according to Deputy Harris,
defendant replied “yes” and told him that there was a gun on the
floor in the back. Deputy Norris saw the weapon, which was
later identified as an AK-47 assault rifle (“the rifle”). The
rifle was warm and had been recently fired, with the magazine
still in the gun. Later, investigators determined that the
rifle was registered to Ms. Torrain.
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Corporal Pam Ferstenau (“Corp. Ferstenau”) of the Roxboro
Police Department also responded to the scene. When she
arrived, she saw Deputy Harris and Deputy Norris with the sedan.
Corp. Ferstenau took custody of the rifle and an empty magazine
found on the center console of the car. Sergeant Will Dunkley
(“Sgt. Dunkley”), a patrol supervisor with the Roxboro Police
Department, also responded to the scene. Sgt. Dunkley, along
with another officer, searched the road near the apartments for
evidence and found a spent shell case. Sgt. Dunkley testified
that the casing is known as an “SKS round or AK round” which
could be used in either an SKS or AK weapon.
During an interview at the Roxboro Police Department,
defendant told police that he and his girlfriend were at the
apartment complex when they heard shots. Defendant claimed that
they left after the shots, but he denied possessing or firing
the rifle. A gunshot residue test taken of defendant’s hands
was inconclusive.
Defendant testified in his own defense at trial. He
claimed that he had spent the day at the apartment complex.
After the shooting, he called Ms. Torrain to pick him up. She
arrived, and defendant got in the passenger seat. Because he
helped her buy the car, defendant admitted it was titled in his
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name; however, he contended that she was the one who used and
controlled the vehicle.
According to defendant, after Deputy Harris stopped the car
and asked if there were any weapons in it, Ms. Torrain said
“yes.” Defendant denied knowing there was a gun in the car and
denied telling Deputy Harris where it was located.
Defendant was indicted for possession of a firearm by a
felon (“possession of a firearm”), going armed to the terror of
the people, and discharging a firearm within city limits.
Defendant’s trial began 16 September 2013. The jury convicted
defendant of possession of a firearm and acquitted him on the
other charges. The trial court sentenced defendant to a minimum
term of twelve months to a maximum term of fifteen months
imprisonment. Defendant timely appealed.
Argument
Defendant’s sole argument on appeal is that the trial court
erred in denying his motion to dismiss the possession of a
firearm charge for insufficiency of the evidence. Specifically,
defendant contends that the State failed to present sufficient
incriminating evidence that defendant constructively possessed
the firearm. We agree.
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“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal,
the question for the Court is whether 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. If so, the motion is
properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150(2000) (internal quotation marks omitted). “In making its
determination, the trial court must consider all evidence
admitted, whether competent or incompetent, in the light most
favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor.” 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).
Here, defendant was charged with possession of a firearm by
a felon in violation of N.C. Gen. Stat. § 14-415.1. Pursuant to
section 14-415.1(a) (2013), it is “unlawful for any person who
has been convicted of a felony to purchase, own, possess, or
have in his custody, care, or control any firearm[.]” Defendant
does not challenge his status as a convicted felon; therefore,
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the only element of the offense we must consider on appeal is
possession.
With regard to possession, our Supreme Court has noted
that:
In a prosecution for possession of
contraband materials, the prosecution is not
required to prove actual physical possession
of the materials. Proof of nonexclusive,
constructive possession is sufficient.
Constructive possession exists when the
defendant, while not having actual
possession, has the intent and capability to
maintain control and dominion over the
narcotics. Where such materials are found
on the premises under the control of an
accused, this fact, in and of itself, gives
rise to an inference of knowledge and
possession which may be sufficient to carry
the case to the jury on a charge of unlawful
possession. However, unless the person has
exclusive possession of the place where the
narcotics are found, the State must show
other incriminating circumstances before
constructive possession may be inferred.
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71
(2001) (internal citations and quotation marks omitted).
Whether constructive possession exists is based on the totality
of the circumstances. State v. Butler, 147 N.C. App. 1, 11, 556
S.E.2d 304, 311 (2001).
In this case, it is undisputed that defendant did not
actually possess the rifle nor was he the only occupant in the
car where it was found. Therefore, he did not have “exclusive
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possession” of the car, Matias, 354 N.C. at 552, 656 S.E.2d at
270, and the mere fact that defendant was in the car where the
firearm was found does not, by itself, establish constructive
possession, State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d
193, 194 (1976). Accordingly, the State was required to show
“other incriminating circumstances” linking defendant to the
rifle. Matias, 354 N.C. at 552, 556 S.E.2d at 271.
A review of decisions by this Court establishes that when
evidence presented definitively links a defendant to a weapon,
we have found that the circumstantial evidence of constructive
possession was sufficient to withstand a defendant’s motion to
dismiss. For example, in State v. Glasco, 160 N.C. App. 150,
157, 585 S.E.2d 257, 262, this Court held that the trial court’s
denial of the defendant’s motion to dismiss was proper where the
evidence “tended to show” that the defendant had “discharged a
gun.” Specifically, the evidence showed that: (1) the defendant
was seen jumping over a fence of a yard near the shooting; (2)
the gun was recovered in that same yard; (3) the defendant was
found carrying a bag with gunshot residue on it; and (4) the
garbage bag had holes in it consistent with a firearm being
fired inside the bag. Id.-8-
Similarly, in State v. Mitchell, __ N.C. App. __, __, 735
S.E.2d 438, 440 (2012), appeal dismissed, __ N.C. __, 740 S.E.2d
466 (2013), police stopped the defendant, who was driving a
rental car, for speeding. The defendant’s girlfriend, Ms.
Harris, was a passenger in the car. Id. The defendant
“indicated” that there was a gun in the glove compartment. Id.Police found the gun inside Ms. Harris’s purse which was being
kept in the glove compartment. Id. Although the defendant
denied telling the police about the gun, this Court found that
the circumstances were sufficient to establish the defendant's
constructive possession of the gun because the defendant was
driving the vehicle—thus, he “controlled” it—and he was “aware”
of the gun’s presence in the glove compartment. Id. at ___, 735
S.E.2d at 443.
In contrast, however, this Court has found the evidence
insufficient to go to the jury when there is no link between the
defendant and the firearm besides mere presence. For example,
in State v. Alston, 131 N.C. App. 514, 515, 508 S.E.2d 315, 316
(1998), the defendant was a passenger in a car driven by his
wife. A handgun was found on the console of the automobile,
with the defendant and his wife having equal access to it. Id.The handgun was registered to his wife, and the car was
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registered to the defendant’s brother. Id. at 516, 508 S.E.2d
at 317. Although a child in the car told police that “Daddy’s
got a gun[,]” this evidence was not admitted for the truth of
the matter asserted, so the trial court could not consider it as
substantive proof of possession. Id. Because the evidence
showed no more than mere presence, this Court held that there
was insufficient evidence to support an inference of possession.
Id. at 519, 508 S.E.2d at 319.
We find the facts of this case closer to those of Alston
than Glasco or Mitchell. Like Alston, the rifle was registered
to Ms. Torrain, defendant’s girlfriend, who was driving the car
when the rifle was found. Defendant was a passenger in the
vehicle, not the driver. Moreover, the rifle was found in a
place where Ms. Torrain and defendant had equal access. In
addition, unlike Glasco, there was no physical evidence tying
defendant to the rifle. Specifically, defendant’s fingerprints
were not found on the rifle, the magazine on the console, or the
spent casing on the road which may have come from an AK firearm.
Although the gun was warm and appeared to have been recently
fired, there was no evidence that defendant had actually
discharged the rifle because the gunshot residue test was
inconclusive. Although it is undisputed that the sedan was
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registered to defendant, he was not driving it at the time.
Therefore, despite having legal ownership of the vehicle,
defendant exercised no control over the car at the time the
rifle was found.
Finally, although defendant allegedly admitted he knew that
the rifle was in the car to Deputy Harris, awareness of the
weapon is not enough to establish constructive possession. In
Mitchell, __ N.C. App. __, 735 S.E.2d at 443-43, awareness was
one of the factors the Court noted; however, its conclusion that
there was sufficient incriminating evidence to submit the issue
to the jury was predicated on both the defendant’s awareness of
the gun and the fact that he was driving the vehicle, noting
that because “[a] driver generally has power to control the
vehicle he is driving[,]” the defendant had the “power to
control” the vehicle. Unlike Mitchell, defendant was not
driving and, thus, not “controlling” the vehicle where the rifle
was found. Therefore, defendant’s knowledge or awareness of the
rifle in and of itself did not constitute sufficient
incriminating evidence to submit the issue to the jury.
While the State argues that the fact that the rifle was
registered to defendant’s girlfriend constitutes substantial
evidence of constructive possession, the Alston Court
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specifically rejected a similar argument, noting “we are not
persuaded that the purchase and ownership of the handgun by
[the] [d]efendant’s wife is sufficient other incriminating
evidence linking [the] [d]efendant to the handgun.” Alston, 131
at 519, 508 S.E.2d at 319.
In summary, the only evidence linking defendant to the
rifle was his presence in the vehicle and his knowledge that the
gun was in the backseat. Consequently, the State failed to
present sufficient “other incriminating circumstances,” Matias,
354 N.C. at 552, 556 S.E.2d at 271, from which the jury could
infer constructive possession. Accordingly, we reverse the
trial court’s order denying his motion to dismiss for
insufficiency of the evidence.
Conclusion
Because the State failed to present substantial evidence of
constructive possession, we reverse the trial court’s order
denying defendant’s motion to dismiss the charge of possession
of a firearm by a felon.
REVERSED.
Judges BRYANT and STEELMAN concur.