State v. Sharpe ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-491
Filed 16 May 2023
Nash County, Nos. 20CRS51425-26
STATE OF NORTH CAROLINA
v.
TYQUEAN QUA’SHED SHARPE, Defendant.
Appeal by Defendant from Judgments entered 14 July 2021 by Judge Thomas
D. Haigwood in Nash County Superior Court. Heard in the Court of Appeals 22
February 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Kellie E.
Army, for the State.
Shawn R. Evans for Defendant-Appellant.
HAMPSON, Judge.
Factual and Procedural Background
Tyquean Qua’shed Sharpe (Defendant) appeals from Judgments entered 14
July 2021 upon jury verdicts finding him guilty of Possession of a Firearm by a Felon
and Misdemeanor Resisting a Public Officer. On appeal to this Court, Defendant only
challenges his conviction for Possession of a Firearm by a Felon. As such, we conclude
there was no error in Defendant’s Misdemeanor Resisting a Public Officer conviction
and limit our analysis to the sole argument raised by Defendant. The Record before
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us tends to reflect the following:
On 14 September 2020, Defendant was indicted for Possession of a Firearm by
a Felon and Misdemeanor Resisting a Public Officer. The matter came on for trial on
13 July 2021. The State’s evidence presented at trial tends to reflect the following:
On 11 May 2020, the Problem Oriented Response Team (PORT) of the Rocky
Mount Police Department, whose purpose is to focus on high crime areas, was
monitoring social media. PORT was aware of several shootings in the area and was
attempting to prevent retaliatory shooting by locating individuals that may have
been involved in the incidents. PORT identified Defendant as one of those possible
individuals. Officers with PORT observed Defendant—via social media—“looking at
weapons, firearms, ammunition, things of that nature” at a local retail store. Shortly
thereafter, the Officers with PORT located Defendant and initiated a traffic stop;
Corporal Chad Creech (Corporal Creech) and Officer Cameron McFadden (Officer
McFadden) both testified the stop was conducted to prevent the occurrence of
“retaliation shootings.” The vehicle stopped at a gas station. Defendant was one of
four occupants inside the vehicle, sitting in the front passenger seat. Once the vehicle
was stopped, Defendant exited the vehicle and went inside the gas station. Officer
McFadden attempted to conduct a frisk of Defendant, but Defendant refused to
cooperate; did not comply with the officer’s commands; and began resisting.
Eventually, Officer McFadden resorted to tasing Defendant in order “to get him to
comply.” Defendant was then handcuffed and detained in a patrol vehicle.
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After Defendant was detained, Corporal Creech conducted a search of the
vehicle and discovered “a box of bullets in the middle of the floorboard, in between
the front – front driver and front passenger, in the middle; a bottle of Hennessy in
the front seat; and there was a rifle in the back seat.” Further, Corporal Creech
testified, the rifle “was at an angle, not longways, but like facing the driver and the
passenger, like in between the driver and the passenger, facing up towards the back
passenger, not laying flat on the seat.” No DNA evidence or fingerprints were
recovered from the firearm or introduced into evidence.
At the close of the State’s evidence, Defendant moved to dismiss the charge of
Possession of a Firearm by a Felon for insufficient evidence. The trial court denied
the Motion. Defendant presented evidence, including the driver of the vehicle
testifying the rifle found in the backseat belonged to Qadarius Grimes (Grimes), one
of the other occupants of the vehicle. Grimes testified that the rifle found in the
vehicle belonged to Grimes, and further, he stated he told the officers at the time of
the traffic stop the rifle belonged to him. Defendant testified the vehicle belonged to
his mother. Defendant testified he did not have a license and his mother only
permitted use of the vehicle if someone else was driving. Defendant testified his
mother had required him to bring the vehicle home after she saw Defendant driving
the vehicle earlier that day via livestream on social media. At the close of all the
evidence, Defendant renewed his Motion to Dismiss. The trial court again denied the
Motion. On 14 July 2021, the jury returned a verdict finding Defendant guilty of
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Opinion of the Court
Possession of a Firearm by a Felon and Misdemeanor Resisting a Public Officer. That
same day, the trial court entered two Judgments against Defendant. The first
Judgment sentenced Defendant to a 17 to 30 month active sentence for the Possession
of a Firearm by a Felon conviction. The second Judgment, for the Misdemeanor
Resisting a Public Officer conviction, sentenced Defendant to a consecutive 60-day
sentence to be suspended for 18 months of supervised probation upon release from
his active sentence. Defendant provided Notice of Appeal in open court.
Issue
The dispositive issue on appeal is whether the trial court erred in denying
Defendant’s Motion to Dismiss the charge of Possession of a Firearm by a Felon.
Analysis
Defendant contends the trial court erred in denying his Motion to Dismiss the
charge of Possession of a Firearm by a Felon due to insufficiency of the evidence.
Specifically, Defendant contends the State failed to establish his constructive
possession of the firearm located in the backseat of the vehicle. We agree.
We review a 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) (citation omitted). However, “[u]pon
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
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451, 455 (2000) (citation and quotation marks omitted). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (citation
and quotation marks omitted). “Evidence is not substantial if it arouses only a
suspicion about the facts to be proved, even if the suspicion is strong.” State v.
Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986) (citing State v. Malloy, 309
N.C. 176, 305 S.E.2d 718 (1983)).
“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) (citation omitted). 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.” Malloy, 309 N.C. at 179,
305 S.E.2d at 720. “Only defendant’s evidence which does not contradict and is not
inconsistent with the state’s evidence may be considered favorable to defendant if it
explains or clarifies the state’s evidence or rebuts inferences favorable to the state.”
Sumpter, 318 N.C. at 107-08, 347 S.E.2d at 399 (citations omitted).
N.C. Gen. Stat. § 14-415.1(a) provides: “[i]t shall be unlawful for any person
who has been convicted of a felony to . . . possess, or have in his custody, care, or
control any firearm . . . .” N.C. Gen. Stat. § 14-415.1(a) (2021). “In order to obtain a
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conviction for possession of a firearm by a felon, the State must establish that (1) the
defendant has been convicted of or has pled guilty to a felony and (2) the defendant,
subsequent to the conviction or guilty [plea], possessed a firearm.” State v. Taylor,
203 N.C. App. 448, 458-59, 691 S.E.2d 755, 764 (2010) (citations omitted). Here,
Defendant does not contest his status as a felon.
Thus, the only question is whether there is evidence Defendant possessed the
firearm in question on the date of his arrest.
Possession of a firearm may be actual or constructive. Actual
possession requires that the defendant have physical or personal
custody of the firearm. In contrast, the defendant has
constructive possession of the firearm when the weapon is not in
the defendant’s physical custody, but the defendant is aware of
its presence and has both the power and intent to control its
disposition or use. When the defendant does not have exclusive
possession of the location where the firearm is found, the State is
required to show other incriminating circumstances in order to
establish constructive possession. Constructive possession
depends on the totality of the circumstances in each case.
Id. at 459, 691 S.E.2d at 764 (citations omitted).
In this case, in the absence of any evidence Defendant had physical or personal
custody of the firearm, the State proceeded on a theory of constructive possession.
Therefore, the State was required to prove Defendant had the “power and intent to
control” the disposition or use of the firearm. Id. On appeal, the State first contends
the evidence supported a finding Defendant had exclusive possession of the vehicle
because he was “custodian” of the vehicle. As such, the State contends it is entitled
to an inference of constructive possession of the firearm sufficient to submit the
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charge to the jury.
In particular, the State primarily relies on State v. Mitchell for the proposition:
“[A]n inference of constructive possession can . . . arise from
evidence which tends to show that a defendant was the
custodian of the vehicle where the [contraband] was found.
In fact, the courts in this State have held consistently that
the driver of a borrowed car, like the owner of the car, has
the power to control the contents of the car. Moreover,
power to control the automobile where [contraband] was
found is sufficient, in and of itself, to give rise to the
inference of knowledge and possession sufficient to go to
the jury.”
224 N.C. App. 171, 177, 735 S.E.2d 438, 443 (2012) (quoting State v. Best, 214 N.C.
App. 39, 47, 713 S.E.2d 556, 562 (2011)). Here, the State presented no evidence
Defendant owned the vehicle.1 Moreover, the evidence shows Defendant was not the
driver of the vehicle. Nevertheless, the State contends Defendant was the “custodian”
of the vehicle—notwithstanding the fact he was not driving the vehicle—and had
exclusive possession of the vehicle because “Defendant’s mother was the owner of the
car and allowed him to use it if he had a driver.” The State offers no support for this
assertion.
However, in State v. Mitchell, the defendant was the driver of a borrowed car.
Id. Likewise, in Best, cited by Mitchell, “the revolver was found in a van driven by
Defendant[.]” Best, 214 N.C. App. at 47, 713 S.E.2d at 562. In fact, tracing back the
1In fact, the only evidence related to ownership was in Defendant’s evidence the vehicle belonged to
his mother.
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quote relied on by the State from Mitchell reveals that in each case “custodian of the
vehicle” referred directly to the driver of a borrowed vehicle. See State v. Hudson,
206 N.C. App. 482, 490, 696 S.E.2d 577, 583 (2010); State v. Dow, 70 N.C. App. 82,
85, 318 S.E.2d 883, 886 (1984). Indeed, none of these cases provide any definition or
authority for what “custodian of the vehicle” means or from where the phrase is
derived. Ultimately, we trace the roots of the Mitchell Court’s quote to State v. Glaze,
which makes no mention of “custodian of the vehicle” and stands for the proposition:
The driver of a borrowed car, like the owner of the car, has
the power to control the contents of the car. Thus, where
contraband material is under the control of an accused,
even though the accused is the borrower of a vehicle, this
fact is sufficient to give rise to an inference of knowledge
and possession which may be sufficient to carry the case to
the jury.
24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974). Glaze and its progeny may be read
together to establish the driver of a borrowed vehicle is a custodian of the vehicle and
has the same power to control the contents of the vehicle as the owner. In fact, on
the other hand, this Court has at least suggested that where a defendant is only a
passenger, “despite having legal ownership of the vehicle, defendant exercised no
control over the car at the time the rifle was found.” State v. Bailey, 233 N.C. App.
688, 693, 757 S.E.2d 491, 494 (2014).
Nevertheless, we presume, without deciding, the State’s position is correct:
that a passenger in a vehicle may also constitute a custodian of the vehicle when the
passenger was the permitted user of the vehicle by the owner. Here, the evidence—
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drawing inferences favorable to the State from Defendant’s evidence—tends to show
Defendant was permitted to use the vehicle by his mother. As such, the evidence
could support an inference Defendant was a custodian of the vehicle. However, under
our existing case law, the driver was also a custodian of the vehicle. As such, the
evidence fails to show Defendant was in exclusive possession of the vehicle at the time
the rifle was found. Moreover, then, the State is not entitled to any presumption of
“knowledge and possession” of the firearm sufficient to submit the case to the jury.
While the evidence reflects Defendant was not in exclusive possession of the
vehicle, the State may still establish constructive possession through evidence of
“other incriminating circumstances.” Taylor, 203 N.C. App. at 459, 691 S.E.2d at 764.
Indeed, this case is analogous to State v. Alston, 131 N.C. App. 514, 508 S.E.2d 315(1998). There, the defendant was the front seat passenger in a vehicle driven by the
defendant’s wife. Id. at 515, 508 S.E.2d at 316. The vehicle was owned by the
defendant’s brother. Id. at 516, 508 S.E.2d at 317. The firearm used to support the
charge of possession of a firearm by a felon was found in the center console of the
vehicle. Id. at 515, 508 S.E.2d at 316-17. With respect to constructive possession of
the firearm, this Court observed: “Possession of an item may be either sole or joint;
however, joint or shared possession exists only upon a showing of some independent
and incriminating circumstance, beyond mere association or presence, linking the
person(s) to the item[.]” Id. at 519, 508 S.E.2d at 318. This Court explained: “Both
[d]efendant and his wife had equal access to the handgun, but there is no evidence
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otherwise linking the handgun to [d]efendant.” Id. at 519, 508 S.E.2d 319. Our Court
concluded: “Accordingly, there is not substantial evidence in this record that
Defendant had the possession, control, or custody of the handgun.” Id. Consequently,
we held the trial court should have dismissed the charge of possession of a firearm by
a felon. Id.Likewise, in Bailey, this Court held a charge of possession of a firearm by a
felon should have been dismissed for insufficient evidence. Bailey, 233 N.C. App. at
693, 757 S.E.2d at 494. There, the defendant, the owner of the vehicle, was in the
front passenger seat. Id. The rifle at issue was in the rear passenger area of the
vehicle. Id. This Court concluded “the only evidence linking defendant to the rifle
was his presence in the vehicle and his knowledge that the gun was in the backseat.”
Id.
Similarly, in the case sub judice, the evidence shows Defendant was not the
driver of the vehicle, but sitting in the front passenger seat and the firearm was
located in the rear passenger compartment. Unlike Alston and Bailey, here, there
were four adults in the vehicle—with two in the rear seat, including a passenger in
the seat behind Defendant where the rifle was found. Also, unlike Alston and
Bailey—where there was evidence the defendants’ wife and girlfriend, respectively,
were the registered owners of the firearms—here, from the State’s perspective, there
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was no evidence of ownership of the rifle.2 In this case, then, as in Alston and Bailey,
the evidence, taken in the light most favorable to the State, shows the only evidence
linking Defendant to the rifle was his presence and awareness of the firearm in the
car. This evidence is insufficient to show Defendant was in constructive possession
of the rifle.3
The State, however, contends there is evidence of additional incriminating
circumstances: “Defendant was driving the car sometime earlier in the day, was
observed examining weapons, and was among the individuals identified by PORT as
a retaliatory shooting concern.”4 The State contends these circumstances are
sufficient to support a finding of constructive possession of the firearm. We disagree.
Any linkage between Defendant and the rifle created by these circumstances
is, at best, speculative and conjectural. See State v. Angram, 270 N.C. App. 82, 87,
839 S.E.2d 865, 868 (2020) (“Although circumstantial evidence may be sufficient to
prove a crime, pure speculation is not, and the State’s argument is based upon
2 The only evidence of ownership was in Defendant’s evidence through the testimony of Grimes that
the rifle belonged to him. However, this evidence is not considered in our review of the Motion to
Dismiss.
3 The State cites to State v. Wirt, 263 N.C. App. 370, 822 S.E.2d 668 (2018), to contend Defendant’s
proximity to the firearm may constitute sufficient evidence of constructive possession. However, in
that case, the defendant was the driver of a pickup truck, which would create the inference of
knowledge and possession. Id. at 374, 822 S.E.2d at 671. Further, the firearm was found under the
front passenger seat and the defendant had been observed earlier riding in the front passenger seat.
Id. at 376, 822 S.E.2d at 672. The Court also found incriminating circumstances from the evidence
the defendant and his passenger had been involved in drug dealing using the truck. Id.4 The State does not contend the bullets found in the center console constituted an additional
incriminating circumstance linking Defendant to the rifle. Indeed, it appears from the evidence the
bullets were for a totally different firearm belonging to the driver of the vehicle.
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speculation.” (citation omitted)). There was no evidence Defendant was in
possession—actual or constructive—of the rifle while he was driving the vehicle
earlier in the day. It is highly speculative to assume the fact Defendant was observed
examining or looking at firearms in a store means he later possessed the rifle. There
was no evidence of any firearm purchase or that Defendant took any firearm from the
store. There was no evidence the rifle was purchased at the store. The State also did
not present evidence of DNA or fingerprints linking Defendant to the firearm.
Finally, the fact Defendant was identified as a “retaliatory shooting concern” may
well arouse suspicion Defendant was in possession of a firearm, but mere suspicion
does not constitute sufficient evidence to survive a motion to dismiss. See Malloy,
309 N.C. 179, 305 S.E.2d 720 (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.”).
In this case, the evidence, without more, is not sufficient to support a finding
Defendant, while seated in the front passenger seat and one of four occupants, was
in constructive possession of a firearm found in the rear passenger compartment of a
vehicle not owned or operated by Defendant. Thus, the State failed to present
sufficient evidence to establish Defendant’s constructive possession of the firearm.
Therefore, the trial court erred in denying Defendant’s Motion to Dismiss for
insufficient evidence. Consequently, we reverse the trial court’s Judgment for the
conviction of Possession of a Firearm by a Felon.
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Conclusion
Accordingly, for the foregoing reasons, we conclude there was no error in the
14 July 2021 Judgment for the conviction of Misdemeanor Resisting a Public Officer
(20 CRS 51426); however, we reverse the 14 July 2021 Judgment for the conviction
of Possession of a Firearm by a Felon (20 CRS 51425) and remand this matter for
resentencing for Misdemeanor Resisting a Public Officer.
NO ERROR IN PART; REVERSED IN PART. REMANDED FOR
RESENTENCING.
Judges COLLINS and WOOD concur.
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