State v. Gunter ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-669
Filed 16 May 2023
Cleveland County, Nos. 20CRS51693-94, 20CRS51858
STATE OF NORTH CAROLINA
v.
TIMOTHY DAVID GUNTER
Appeal by defendant from judgment entered 14 October 2021 by Judge
James W. Morgan in Cleveland County Superior Court. Heard in the Court of
Appeals 25 April 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel
Snipes Johnson, for the State.
Appellate Defender Glenn Gerding by Assistant Appellant Defender Amanda S.
Zimmer, for the defendant-appellant.
Paul F. Herzog, for the defendant-appellant.
TYSON, Judge.
Timothy David Gunter (“Defendant”) appeals from judgment entered on a
jury’s verdict for aiding and abetting possession of a firearm by a felon. Our review
reveals no error.
I. Background
Cleveland County Sheriff’s Detectives Aaron Shumate and Timothy Sims were
driving in an unmarked vehicle. Detective Shumate observed a black Chevrolet
STATE V. GUNTER
Opinion of the Court
pickup truck three or four car lengths ahead swerve left of the center line several
times while travelling on County Line Road. The Detectives observed two occupants
seated inside the pickup truck and observed the passenger reaching all around the
vehicle. Detective Shumate initiated a traffic stop.
The truck pulled into a convenience store’s parking lot at the intersection of
Goforth Road and County Line Road. Detective Shumate approached the passenger
side of the truck, while Detective Sims approached the driver’s side. Detective
Shumate recognized Defendant, seated in the passenger seat of the truck, based upon
prior encounters with him.
Detective Shumate asked Defendant to step out of the truck, and Defendant
complied with the request. Defendant placed his hands on the side of the truck, and
Detective Shumate conducted a Terry frisk, but did not find any contraband.
Defendant denied Detective Shumate’s request to search the truck. Simultaneously,
Detective Sims asked the driver, Conner Bryce Wellmon (“Wellmon”), to exit the
vehicle. Detective Sims conducted a Terry frisk of Wellmon and discovered .32 caliber
ammunition located inside his pocket. Detective Sims knew Wellmon was a convicted
felon. Backup officers had arrived and stood with Defendant and Wellmon, while
Detectives Sims and Shumate searched the truck.
Detectives opened the glove box and found a Glock handgun behind the dash
of the truck. A thirty-three round 9mm magazine was found on the floorboard behind
the driver’s seat and a fifteen round 9mm Glock magazine was found under the
-2-
STATE V. GUNTER
Opinion of the Court
passenger’s seat. Loose ammunition was found scattered throughout the truck’s
interior cabin.
Detective Sims located a nickel-plated .32 caliber revolver under the center
seat. Detective Shumate found a clear plastic baggie, on the rear floor between the
driver’s and passenger’s seats, which he believed contained methamphetamine.
Defendant was arrested and transported to the county detention center. While being
processed, Defendant told Detective Gunter he was surprised the detectives had
found methamphetamine inside the truck because he had eaten it. While Detective
Gunter was reading Defendant the warrant for carrying a concealed handgun,
Defendant stated he had concealed the guns only because he knew Wellmon was a
convicted felon.
Defendant was indicted for aiding and abetting possession of a firearm by a
felon, possession of methamphetamine, and for carrying a concealed weapon.
Defendant moved to dismiss for sufficiency of the evidence at the close of the State’s
evidence and again at the close of all evidence. The trial court denied both motions.
A jury convicted Defendant of all three charges on 14 October 2021.
Defendant was sentenced as a prior record level II offender to an active term
of 13 to 25 months, suspended for 24 months of supervised probation. As a condition
of supervised probation, Defendant was ordered to serve 30 days in the Cleveland
County Jail. Defendant appeals.
II. Jurisdiction
-3-
STATE V. GUNTER
Opinion of the Court
This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1)
and 15A-1444(a) (2021).
III. Issues
Defendant challenges his conviction for aiding and abetting possession of a
firearm by a felon. Defendant first argues the indictment was fatally defective. He
also asserts the trial court erred by denying Defendant’s motion to dismiss for
insufficiency of the evidence.
IV. Fatal Defect
A. Standard of Review
North Carolina Rules of Appellate Procedure 10(a)(1) delineates the
procedures for preserving errors on appeal:
In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C. R. App. P. 10(a)(1). Rule 10(a)(1) requires a defendant to “preserve the right to
appeal a fatal variance.” State v. Mason, 222 N.C. App. 223, 226, 730 S.E.2d 795, 798
(2012) (citations omitted).
Our Supreme Court held in State v. Golder that a defendant’s blanket motion
to dismiss at the close of the state’s evidence and renewed again at the close of all the
evidence “preserves all issues related to sufficiency of the State’s evidence” arguments
-4-
STATE V. GUNTER
Opinion of the Court
for appellate review. State v. Golder, 374 N.C. 238, 246, 839 S.E.2d 782, 788 (2020)
(“Because our case law places an affirmative duty upon the trial court to examine the
sufficiency of the evidence against the accused for every element of each crime
charged, . . . under Rule 10(a)(3), a defendant’s motion to dismiss preserves all issues
related to sufficiency of the State’s evidence for appellate review.”).
This Court explained the ambiguity about whether a defendant’s general and
generic motion to dismiss for insufficiency of the evidence properly preserves a
defendant’s fatal defect argument on appeal in State v. Mackey:
Post-Golder, our Supreme Court has not
affirmatively held whether a general motion to dismiss
preserves a defendant’s fatal variance objection for appeal
as a “sufficiency of the State’s evidence” objection under
Golder. Id.; State v. Smith, 375 N.C. 224, 228, 846 S.E.2d
492, 494 (2020) (explaining this Court in State v. Smith,
258 N.C. App. 698, 812 S.E.2d 205 (2018), “concluded [ ]
defendant’s fatal variance argument was not preserved
because it was not expressly presented to the trial court[,]”
while also acknowledging this Court had reached its
decision before our Supreme Court issued Golder)
(emphasis supplied) (citation omitted). The Supreme
Court in Smith, “assum[ed] without deciding that
defendant’s fatal variance argument was preserved[.]” Id.
at 231, 846 S.E.2d at 496.
Since Smith and Golder, criminal defendants before
this Court assert “the Supreme Court in Golder [had]
‘assumed without deciding’ that ‘issues concerning fatal
variance are preserved by a general motion to dismiss.’”
See State v. Brantley-Phillips, 278 N.C. App. 279, 286,
2021-NCCOA-307, ¶ 21, 862 S.E.2d 416, 422 (2021).
State v. Mackey, __ N.C. App. __, __, 2022-NCCOA-715, ¶24-25, 882 S.E.2d 405, 409
(2022).
-5-
STATE V. GUNTER
Opinion of the Court
Here, like in Mackey, this Court again presumes, “without deciding”,
Defendant’s general and generic motion to dismiss for sufficiency of the evidence
preserved his fatal variance objections. Id.B. Analysis
An indictment “is fatally defective if it fails to state some essential and
necessary element of the offense of which the defendant is found guilty.” State v.
Ellis, 368 N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (citation and quotation marks
omitted).
A defendant is guilty of aiding and abetting another person in committing a
crime if: “(i) the crime was committed by some other person; (ii) the defendant
knowingly advised, instigated, encouraged, procured, or aided the other person to
commit that crime; and (iii) the defendant’s actions or statements caused or
contributed to the commission of the crime by that other person.” State v. Goode, 350
N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citation omitted).
N.C. Gen. Stat. § 14–415.1(a) provides: “It shall be 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 [.]” N.C. Gen. Stat. § 14–415.1(a) (2021) “Thus, the State
need only prove two elements [beyond a reasonable doubt] to establish the crime of
possession of a firearm by a felon: (1) defendant was previously convicted of a felony;
and (2) thereafter possessed a firearm.” State v. Wood, 185 N.C. App. 227, 235, 647
S.E.2d 679, 686 (2007).
-6-
STATE V. GUNTER
Opinion of the Court
The indictment charging Defendant with aiding and abetting the possession of
a firearm by a felon asserted Defendant did “unlawfully, willfully, and feloniously”:
Aid and abet, Conner Bryce Wellmon, by concealing two
handguns for Conner Bryce Wellmon prior to a traffic stop
knowing that Mr. Wellmon was convicted of obtaining
property by false pretense, a class H felony with a
maximum sentence of 39 months in prison. The felony was
committed on 11/26/2014 and Mr. Wellmon was convicted
of that felony on 08/05/2015 and he received a 6-17 month
active sentence that was suspended for 30 months of
supervised probation in Cleveland County file number 14
CRS 55542.
(all caps in original).
The indictments included the necessary elements for the crime of aiding and
abetting the possession of a firearm by a felon. N.C. Gen. Stat. § 14–415.1(a); Wood,
185 N.C. App. at 235, 647 S.E.2d at 686. Defendant’s argument is without merit and
overruled.
V. Sufficiency of the Evidence
Defendant argues the State was required to produce evidence of Defendant’s
intent, despite the absence of an intent requirement in N.C. Gen. Stat. § 14–415.1(a),
because the indictment referenced Defendant’s knowledge of Wellmon’s prior felony
conviction. Defendant cites cases wherein North Carolina’s appellate courts have
held insufficient evidence of intent existed to support a conviction for crimes with an
specific intent element, such as burglary and breaking and entering.
A. Standard of Review
-7-
STATE V. GUNTER
Opinion of the Court
“[T]he denial of a motion to dismiss for insufficiency of the evidence is a
question of law reviewed de novo (sic) by the appellate court.” State v. Barnett, 368
N.C. 710, 713, 782 S.E.2d 885, 888 (2016). “Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment for that of the
lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)
(citation and quotation marks omitted).
This Court reviews whether sufficient evidence existed to support a criminal
conviction by considering the evidence “in the light most favorable to the State; the
State is entitled to every reasonable intendment and every reasonable inference to be
drawn therefrom.” Golder, 374 N.C. at 250, 839 S.E.2d at 790 (citation and internal
quotation marks omitted).
B. Analysis
“In ruling on a motion to dismiss, the trial court need determine only whether
there is substantial evidence of each essential element of the crime and that the
defendant is the perpetrator.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824,
826 (2015) (citation and internal quotation marks omitted).
Possession of a firearm by a felon only requires the State to prove two elements:
“(1) defendant was previously convicted of a felony; and (2) thereafter possessed a
firearm.” Wood, 185 N.C. App. at 235, 647 S.E.2d at 686.
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,
-8-
STATE V. GUNTER
Opinion of the Court
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.
State v. Taylor, 203 N.C. App. 448, 459, 691 S.E.2d 755, 764 (2010) (internal citations
omitted).
Here, the State presented evidence which tended to show Defendant had
provided the firearm to Wellmon. The State also presented evidence which tended to
show Defendant knew of Wellmon’s prior felony conviction. Detective Shumate
testified that, when he arrested Defendant for concealing a handgun, Defendant
“uttered that he [had] only concealed the guns because he knew Conner Wellmon was
a convicted felon.” Detective Sims corroborated this information, testifying
Defendant stated “the only reason that [he] even hid the gun or threw the guns and
concealed them was because [he] thought Mr. Wellmon was a felon and [he] didn’t
want him to get in trouble.”
The State’s evidence sufficiently supports Defendant’s conviction for aiding
and abetting the possession of a firearm by a felon. Winkler, 368 N.C. at 574, 780
S.E.2d at 826; Wood, 185 N.C. App. at 235, 647 S.E.2d at 686; Taylor, 203 N.C. App.
at 459, 691 S.E.2d at 764. Defendant’s argument is without merit.
-9-
STATE V. GUNTER
Opinion of the Court
VI. Conclusion
The indictment charging Defendant with aiding and abetting the possession of
a firearm by a felon included the necessary elements outlined in N.C. Gen. Stat. § 14–
415.1(a). Wood, 185 N.C. App. at 235, 647 S.E.2d at 686. Defendant’s argument
asserting his indictment was fatally defective is overruled.
The State presented sufficient evidence for the trial court to overrule
Defendant’s motion to dismiss and submit the charge to the jury. Winkler, 368 N.C.
at 574, 780 S.E.2d at 826; Wood, 185 N.C. App. at 235, 647 S.E.2d at 686; Taylor, 203
N.C. App. at 459, 691 S.E.2d at 764.
Defendant received a fair trial, free from prejudicial errors he preserved and
argued on appeal. We find no error in the jury’s verdicts or in the judgment entered
thereon. It is so ordered.
NO ERROR.
Judges COLLINS and RIGGS concur.
- 10 -