State v. Barkley

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1025
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 11 CRS 9216, 218802
CARL DUVEE BARKLEY
Appeal by defendant from judgments entered 31 January 2013
by Judge Paul C. Ridgeway in Wake County Superior Court. Heard
in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Amanda P. Little, for the State.
Mark L. Hayes for defendant-appellant.
ELMORE, Judge.
Carl Duvee Barkley (defendant) appeals from judgments
entered upon his convictions for possession of a firearm by a
felon and manufacture of marijuana. Defendant contends that the
trial court erred by denying his motion to dismiss the
possession of a firearm charge and committed plain error in its
jury instructions on that charge. We find no error.
I. Facts
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On 11 August 2011, Raleigh Police Department Detective
Frank Patercity was conducting a drug investigation involving
defendant and obtained a search warrant for the residence, a
single-wide trailer, where he believed defendant lived. Before
the investigating officers executed the warrant, they observed
defendant’s car in the trailer’s driveway, then left for a
briefing. When the officers returned to the house five minutes
later, defendant’s car was gone.
One team of officers secured the trailer, then drug
detectives searched it. No one was home in the trailer at the
time, although a tenant was present in an attached rental unit.
During the search of the trailer, the detectives found pills and
white powder, and shotgun shells in several locations, including
in a nightstand next to the bed. Detectives also found
documents in defendant’s name that listed his address as the
trailer’s address and as his mother’s address. In the master
bedroom closet, detectives found a shotgun. Half of the closet
was filled with men’s clothes, the other half with women’s
clothes. Outside, a marijuana plant grew near the trailer.
Defendant was detained as he attempted to return to the
trailer, waived his Miranda rights, and agreed to speak to
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Detective Patercity. Defendant denied that he lived in the
trailer but stated that he still “stayed there some nights[.]”
Defendant also told Detective Patercity that the shotgun
belonged to his wife, but acknowledged that at some point in the
past two months he had handled the shotgun to make sure it was
“clear.” Defendant denied that he possessed any illegal drugs
and claimed that the marijuana plant grew naturally. The jury
found defendant guilty of manufacturing marijuana and possession
of a firearm by a felon. Defendant received a suspended
sentence of 24 months supervised probation for the manufacture
of marijuana conviction, which was to begin after a term of 12-
15 months active imprisonment for the possession of a firearm by
a felon conviction. Defendant appeals.
II. Analysis
In his first argument, defendant contends that the trial
court erred by denying his motion to dismiss the possession of a
firearm by a felon charge. We disagree.
“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,
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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 (quoting State v. Barnes, 334 N.C. 67, 75, 430
S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.
2d 150 (2000). “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).
The two elements of possession of a firearm by a felon are:
(1) the defendant had a prior felony conviction; and (2) the
defendant had a firearm in his possession. State v. Hussey, 194
N.C. App. 516, 521, 669 S.E.2d 864, 867 (2008); see also N.C.
Gen. Stat. § 14-415.1 (2013). Possession of the firearm may be
actual or constructive. State v. Bradshaw, 366 N.C. 90, 93, 728
S.E.2d 345, 348 (2012) (citation omitted). “Constructive
possession occurs when a person lacks actual physical
possession, but nonetheless has the intent and power to maintain
control over the disposition and use of the [item].” State v.
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Acolatse, 158 N.C. App. 485, 488, 581 S.E.2d 807, 810 (2003)
(citation and quotation marks omitted). “However, unless the
person has exclusive possession of the place where the [item is]
found, the State must show other incriminating circumstances
before constructive possession may be inferred.” State v.
Tisdale, 153 N.C. App. 294, 297, 569 S.E.2d 680, 682 (2002)
(citation and quotation marks omitted).
In Bradshaw, our Supreme Court held that the State
presented sufficient evidence of other incriminating
circumstances in a similar situation. Bradshaw, 366 N.C. at 97,
728 S.E.2d at 350. Although the defendant in Bradshaw was not
present at the time the weapon was discovered in the bedroom
closet of his mother’s home, the State produced evidence that
officers discovered a cable receipt at the house in the
defendant’s name, photographs and a father’s day card addressed
to the defendant, and men’s clothing in a bedroom. Id. at 96,
728 S.E.2d at 349. The officers had also recently observed the
defendant at the house. Id. at 92, 728 S.E.2d at 347.
Defendant was arrested, months later, near the house. Id. at
96-97, 728 S.E.2d at 349-350.
Similarly, viewing the evidence in the light most favorable
to the State in this case, there is substantial evidence of
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defendant’s constructive possession of the firearm. First, the
officers observed defendant’s car parked at the trailer just
minutes before they conducted their search. Defendant admitted
to staying in the trailer, and officers found the shotgun in the
master bedroom closet, along with men’s clothes, and shotgun
shells in various locations throughout the trailer, including
the nightstand in the master bedroom. Although there was some
conflicting evidence about defendant’s residency, officers found
documents in defendant’s name that bore the trailer’s address.
Finally, defendant was detained when he attempted to return to
the trailer shortly after the officers conducted the search and
admitted to having handled the shotgun. Taking all of this
evidence in the light most favorable to the State, we conclude
that the trial court did not err in denying the motion to
dismiss.
In a related sufficiency argument, defendant contends that
there was a fatal variance between the allegation in the
indictment that he possessed the shotgun on or about 11 August
2011, and the State’s evidence that he actually possessed the
shotgun two months prior to that date. Defendant contends that
the evidence of actual possession supported a separate charge,
and that his trial counsel was not prepared to refute the
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evidence of actual possession in what appeared to be a
constructive possession case. We disagree.
In order to prevail on a motion to dismiss based on a fatal
variance between the allegations in the indictment and the
evidence at trial, “the defendant must show a fatal variance
between the offense charged and the proof as to ‘the gist of the
offense.’ This means that the defendant must show a variance
regarding an essential element of the offense.” State v.
Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997)
(citations omitted).
In this case, contrary to defendant’s argument, “the date
of the offense is not an essential element of the offense of
possession of a firearm by a felon.” State v. Coltrane, 188
N.C. App. 498, 501, 656 S.E.2d 322, 325 (2008), disc. review
denied, appeal dismissed, 362 N.C. 476, 666 S.E.2d 760 (2008).
Accordingly, defendant’s contention of a fatal variance is
without merit.
Finally, defendant argues, based on the same evidence that
he actually possessed the shotgun prior to 11 August 2011, that
the trial court committed plain error by instructing the jury on
both actual and constructive possession, when the indictment
only alleged that he possessed the shotgun on or about 11 August
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2011. Defendant contends that the instructions permitted the
jury to convict him based on a theory of the offense not alleged
in the indictment. We disagree.
“In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by
rule or law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss,
361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555
U.S. 835, 172 L. Ed. 2d 58 (2008). The North Carolina Supreme
Court “has elected to review unpreserved issues for plain error
when they involve either (1) errors in the judge’s instructions
to the jury, or (2) rulings on the admissibility of evidence.”
State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
Plain error arises when the error is “‘so basic, so prejudicial,
so lacking in its elements that justice cannot have been
done[.]’” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002
(4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513
(1982)). “Under the plain error rule, defendant must convince
this Court not only that there was error, but that absent the
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error, the jury probably would have reached a different result.”
State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
In this case, defendant cannot demonstrate error, much less
plain error, in the trial court’s instructions. The trial court
used the pattern jury instruction to define actual and
constructive possession as to the offense of possession of
marijuana:
Possession of a substance or article
may be either actual or constructive. A
person has actual possession of a substance
or article if that person has it on their
person, is aware of its presence and either
alone or together with others has both the
power and intent to control its disposition
or use.
A person has constructive possession of
a substance or an article if the person does
not have it on their person but is aware of
its presence and has either alone or
together with others both the power and
intent to control its disposition or use.
A person’s awareness of the presence of
a substance or article and a person’s power
and intent to control its disposition or use
may be shown by direct evidence or may be
inferred from the circumstances.
See N.C.P.I. – Crim. 104.41. The trial court referred back to
the possession instruction when it instructed the jury on
possession of a firearm by a felon.
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Rather than presenting an alternate theory of the offense,
as defendant claims, the instruction as given simply provided
the jury with an accurate legal definition of possession, which
includes both actual and constructive possession. In fact, the
pattern jury instructions for the substantive offense of
possession of a firearm by a felon, N.C.P.I. – Crim. 254A.11
n.5, refer back to the pattern instruction for possession that
the trial court read to the jury. Where the pattern
instructions are an accurate statement of the law, we decline to
find plain error in those instructions. State v. Warren, 348
N.C. 80, 113, 499 S.E.2d 431, 449 (1998).
III. Conclusion
In sum, we hold that the trial court did not err by denying
defendant’s motion to dismiss the possession of a firearm
charge, nor did it commit plain error in its jury instructions
on that charge.
No error.
Judges McGEE and DAVIS concur.
Report per Rule 30(e).