State v. WirtÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-375
Filed: 18 December 2018
Randolph County, Nos. 16 CRS 50079-50080; 16 CRS 197
STATE OF NORTH CAROLINA
v.
BRAD CHATMAN WIRT
Appeal by Defendant from judgments entered 16 November 2017 by Judge V.
Bradford Long in Superior Court, Randolph County. Heard in the Court of Appeals
15 October 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Stuart
Saunders, for the State.
Stephen G. Driggers for Defendant.
McGEE, Chief Judge.
Brad Chatman Wirt (“Defendant”) appeals his convictions for possession of
methamphetamine, possession of a firearm by a felon, and habitual felon status.
Defendant argues the trial court erred in instructing the jury that his status as the
driver of a stopped vehicle was sufficient to support an inference that he
constructively possessed both methamphetamine and a firearm. We disagree.
I. Factual and Procedural History
STATE V. WIRT
Opinion of the Court
Defendant was stopped by officers of the Randolph County Sheriff’s Office
(“Sheriff’s Office”) on 6 January 2016 while driving a beige Chevrolet pickup truck
(“the truck”). The Sheriff’s Office had received “drug complaints” about a man named
Omar Sanchez (“Sanchez”). Officers conducted a two-hour “rolling surveillance” of
Sanchez and Defendant as they drove to several hotels in the area. Both Sanchez
and Defendant were seen driving the truck during the two-hour surveillance. Officers
checked the truck’s registration, found the license plate had expired, and pulled the
truck over.
At the time of the stop, Defendant was in the driver’s seat and Sanchez was in
the passenger seat. Officers ran a check of Defendant’s driver’s license and discovered
Defendant had an outstanding warrant and that his license was suspended. The
officers used a K-9 unit to perform a “free air sniff” of the truck. The K-9 unit alerted
to the tailgate of the truck. The officers found several bags and backpacks in the bed
of the truck that Sanchez stated belonged to him. While searching one of the
backpacks, officers found 241 blue pills and a notebook containing Sanchez’s name.
Another backpack contained a compass with 0.2 grams of a crystalline substance1, a
digital scale and counterweight, and a notebook containing entries in Defendant’s
handwriting concerning Defendant’s wife. The officers then searched the interior of
the truck and found a revolver and holster beneath the passenger seat.
1
Defendant’s brief refers to the substance found on the compass as cocaine. However, the State Crime
Laboratory tested and labeled the substance as methamphetamine. Defendant was subsequently
indicted and convicted of possession of methamphetamine.
-2-
STATE V. WIRT
Opinion of the Court
After Defendant was arrested, he was taken to a special operations center and
a strip search was conducted. During the search, officers found a bag inside
Defendant’s underwear containing thirty-nine pills, fifteen of which were later
determined to be diazepam. Defendant was indicted for possession of
methamphetamine, possession of a firearm by a felon, three counts of possession with
intent to manufacture, sell or deliver a controlled substance, and having attained
habitual felon status.
Following the presentation of evidence at trial, the State requested the trial
court include jury instructions based on this Court’s opinion in State v. Mitchell, 224
N.C. App. 171, 177, 735 S.E.2d 438, 443 (2012). The requested instruction explained:
An 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 the 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.
Defendant objected to the additional instruction, but the trial court elected to
include the expanded instruction. At Defendant’s request, the trial court also added
a definition of “inference” to the jury instructions.
The jury was instructed on actual and constructive possession. The jury
instructions stated that an inference of possession can arise when an item is found in
a premises that Defendant had control over even if Defendant did not own the
-3-
STATE V. WIRT
Opinion of the Court
premises. The instructions further informed the jury that “power to control the
automobile where the contraband was found is sufficient in and of itself to give rise
to the inference of knowledge and possession.”
The jury found Defendant guilty of possession of methamphetamine,
possession of a firearm by a felon, and possession of diazepam. Defendant entered a
plea of guilty to habitual felon status. Defendant appeals his convictions for
possession of methamphetamine, possession of a firearm by a felon, and habitual
felon status.
II. Analysis
Defendant’s sole issue on appeal is that “the trial court erred by giving the
special instruction on constructive possession offered by the State over defense
objection where that instruction was an incomplete and misleading statement of the
law.” Defendant’s brief also implies that the State presented insufficient evidence to
support a finding that he constructively possessed either the firearm or the
methamphetamine and the State specifically addresses these arguments. Thus, we
first consider whether there was sufficient evidence to support a finding of
constructive possession and then address whether the trial court erred in giving the
special instruction for constructive possession.
A. Sufficient Evidence
Defendant states there was insufficient evidence to convict him of possession
of a firearm by a felon and possession of methamphetamine. “The denial of a motion
to dismiss for insufficient evidence is a question of law, which this Court reviews de
-4-
STATE V. WIRT
Opinion of the Court
novo.” State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). “Evidence
is sufficient to sustain a conviction when, viewed in the light most favorable to the
State . . . there is substantial evidence to support a jury finding of each essential
element of the offense charged, and of the defendant being the perpetrator of such
offense.” Id.Defendant was convicted of possession of methamphetamine in violation of
N.C. Gen. Stat. § 90-95(A)(3) (2017). In order to sustain a conviction for possession
of methamphetamine, the State must prove beyond a reasonable doubt that (1)
Defendant was in possession of (2) a controlled substance. N.C. Gen. Stat. § 90-
95(A)(3) (2017). The State presented evidence that the North Carolina State Crime
Laboratory determined the substance found on the compass was methamphetamine,
a Schedule II controlled substance, and Defendant does not challenge this finding.
Therefore, the only question for this Court is whether there was sufficient evidence
to show Defendant possessed the methamphetamine.
Defendant was also convicted of possession of a firearm by a felon. To sustain
a conviction for possession of a firearm by a felon, the State must prove beyond a
reasonable doubt that “(1) defendant was previously convicted of a felony; and (2)
thereafter possessed a firearm.” State v. Best, 214 N.C. App. 39, 45, 713 S.E.2d 556,
561 (2011) (internal citations omitted). At trial, Defendant stipulated to his status
as a convicted felon. However, Defendant contends there was insufficient evidence
to support that he was in possession of the firearm.
-5-
STATE V. WIRT
Opinion of the Court
The State must prove that Defendant possessed methamphetamine or the
firearm either actually or constructively. “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. Alston, 131 N.C. App. 514, 519,
508 S.E.2d 315, 318 (1998) (internal citations omitted). As the methamphetamine
was found in a backpack in the bed of the truck, and not in Defendant’s physical or
personal custody, the State was required to present sufficient evidence to show
constructive possession.
“[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.”
Mitchell, 224 N.C. App. at 177, 735 S.E.2d at 443 (internal citations omitted). As
Defendant was undisputedly the driver of the truck in which the methamphetamine
was found at the time the officers stopped the truck, Defendant’s dominion and
control over the truck is sufficient to give rise to an inference of possession.
In Mitchell, the defendant was convicted of possession of marijuana and
possession of a firearm by a felon. Id. at 172, 735 S.E.2d at 440. The defendant in
Mitchell was driving a rental car, had a suspended license, and his girlfriend was in
-6-
STATE V. WIRT
Opinion of the Court
the passenger seat when the vehicle was stopped by a police officer. Id. After the
defendant revealed that his girlfriend was in possession of a marijuana cigarette and
told the officer there was a gun in the glove compartment, the officer searched the
vehicle and found a handgun and 79.3 grams of marijuana. Id. at 172-73, 735 S.E.2d
at 440. This Court found that “‘[p]ower to control’ the vehicle is sufficient evidence
from which it is reasonable to infer possession” (“Mitchell standard”), and upheld the
convictions. Id. at 178, 735 S.E.2d at 443.
Similar to Mitchell, in the present case Defendant was driving a borrowed
truck, with a passenger, when illegal drugs and a weapon were found in the truck.
However, Defendant argues that his dominion and control over the truck was
insufficient to give rise to an inference of constructive possession because he was not
the only occupant of the truck. Instead, Defendant argues that when a defendant
does not have “exclusive possession of the place where the [contraband is] found, the
State must show other incriminating circumstances before constructive possession
may be inferred” (“additional evidence rule”). Best, 214 N.C. App. at 53, 713 S.E.2d
at 565. Defendant further argues that “the State presented little ‘additional
incriminating evidence’ to support an inference beyond a reasonable doubt that
[Defendant] constructively possessed” the firearm or the methamphetamine on the
compass. However, Best also states that the fact the contraband was found in a
vehicle driven by a defendant “standing alone, might be sufficient to permit a
reasonable inference” of possession. Best, 214 N.C. App. at 47, 713 S.E.2d at 562(emphasis added).
-7-
STATE V. WIRT
Opinion of the Court
Defendant contends that the definition of constructive possession should
include the additional evidence rule as our Supreme Court discussed in State v.
Chekanow, 370 N.C. 488, 494, 809 S.E.2d 546, 551 (2018) that:
“[I]f drugs are found in a closet in the defendant’s home and
the defendant is the sole resident of the home, the evidence
of constructive possession is sufficient to take the issue to
the jury.” But if drugs are found “in a vehicle driven by one
person and carrying several others as passengers,” the
defendant is not in exclusive possession and other
incriminating circumstances must be shown.
Importantly, the quoted portion of Chekanow was part of a citation showing the
limited scope of our State’s prior jurisprudence concerning exclusive possession, not
as part of the Supreme Court’s ultimate holding. Id. at 493, 809 S.E.2d at 550.
Instead, Chekanow involved the discovery of marijuana plants outdoors on the
outskirts of the defendant’s property, not contraband inside a vehicle. Id. at 490, 809
S.E.2d at 548. Additionally, the quoted portion of Chekanow comes from a North
Carolina Crimes treatise, not from North Carolina case law. Id. at 493, 809 S.E.2d
at 551 (quoting Jessica Smith, NORTH CAROLINA CRIMES 702 (7th ed. 2012)). Our
Supreme Court denied review in both Best and Mitchell. We believe had the Supreme
Court intended to overrule this Court’s prior holdings that power to control the
automobile where the contraband was found is sufficient, in and of itself, to give rise
to the inference of knowledge and possession, it would have done so explicitly. See
Mitchell, 224 N.C. App. at 177, 735 S.E.2d at 443
In the present case, while Defendant’s status as the driver might, like in Best,
be sufficient to uphold his conviction for possession of methamphetamine, the State
-8-
STATE V. WIRT
Opinion of the Court
also presented additional incriminating evidence to support an inference of
constructive possession. Such evidence included (1) Defendant’s frequent stops at
hotels and a gas station – indicative of drug transactions, (2) Defendant’s possession
of other controlled substances, and (3) the backpack in which the methamphetamine
was found contained Defendant’s personal belongings. Viewed in the light most
favorable to the State, there was sufficient evidence to support each element of
possession of methamphetamine.
Like possession of the methamphetamine, possession of a firearm can be actual
or constructive. Alston, 131 N.C. App. at 519, 508 S.E.2d at 318. Since the firearm
in the present case was found under the passenger seat of the truck, and not in
Defendant’s physical or personal custody, the State was required to show constructive
possession. As with possession of a controlled substance, Defendant’s dominion and
control as the driver of the truck was sufficient to give rise to an inference of
constructive possession of the firearm. Mitchell, 224 N.C. App. at 177, 735 S.E.2d at
443.
Defendant argues that his nonexclusive control over the truck required the
State to provide additional incriminating evidence. As discussed above, Defendant’s
status as the driver is sufficient to give rise to an inference of possession. Best, 214
N.C. App. at 53, 713 S.E.2d at 565. Nevertheless, the State presented additional
incriminating evidence sufficient to support a finding of constructive possession of
the firearm, including Defendant’s proximity to the firearm – both while in the
driver’s seat and while sitting directly above the gun when he was in the passenger’s
-9-
STATE V. WIRT
Opinion of the Court
seat – and his behavior consistent with the sale of drugs. Viewed in the light most
favorable to the State, there was sufficient evidence to support each element of
possession of a firearm by a felon.
B. Jury Charge
Defendant further expressly contends the trial court erroneously omitted the
additional evidence standard from the jury instructions on constructive possession,
misleading the jury. This Court reviews a challenge to a trial court’s decision
regarding jury instructions de novo, State v. King, 227 N.C. App. 390, 396, 742 S.E.2d
144, 149 (2009), and reviews the jury instructions in their entirety when determining
if there was error. State v. Blizzard, 169 N.C. App. 285, 297, 610 S.E.2d 245, 253
(2005).
The charge will be held to be sufficient if it presents the
law of the case in such manner as to leave no reasonable
cause to believe the jury was misled or misinformed . . . .
Under such a standard of review, it is not enough for the
appealing party to show that error occurred in the jury
instructions; rather, it must be demonstrated that such
error was likely, in light of the entire charge, to mislead the
jury.
Id. (quoting Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002)).
Defendant contends the trial court’s failure to instruct the jury on the
additional incriminating evidence rule constitutes reversible error. Defendant
argues the addition of the Mitchell standard and the omission of the additional
evidence standard misled the jury because they were instructed Defendant’s status
as the driver alone would raise the inference of constructive possession. However,
- 10 -
STATE V. WIRT
Opinion of the Court
the State presented the trial court with the supporting case law and the trial court
did not err in including the addition of the standard this Court articulated in Mitchell.
Because the jury was presented with additional evidence to consider and the trial
court instructed the jury that Defendant’s position as the driver of the truck might,
but did not necessarily, give rise to the inference of constructive possession, even
assuming arguendo the omission constituted error, it was not likely to mislead the
jury.
The trial court’s instructions to the jury regarding constructive possession are
as follows:
Members of the jury, if you find beyond a reasonable doubt
that a substance or article was found in close physical
proximity to [] [D]efendant, that would be a circumstance
from which, together with other circumstances, you may
infer that [] [D]efendant was aware of the presence of the
substance or article and had the power and intent to
control its disposition or use. However, [] [D]efendant’s
physical proximity, if any, to the substance or article does
not by itself permit an inference that [] [D]efendant was
aware of its presence or had the power to control its
disposition or use. Such an inference may be drawn only
from this and other circumstances from which you find . . .
from the evidence beyond a reasonable doubt.
Further, I charge you, members of the jury, if you find
beyond a reasonable doubt that a substance or article was
found in a certain premises and that [] [D]efendant
exercised control over those premises, whether or not []
[D]efendant owned it, this would be a circumstance from
which you may infer that [] [D]efendant was aware of the
presence of the substance or article and had the power and
intent to control its disposition or use.
An inference of constructive possession can arise from
evidence which tends to show that a defendant was the
- 11 -
STATE V. WIRT
Opinion of the Court
custodian of a vehicle where the contraband was found.
The driver of a borrowed car, like the owner of the car, has
the power to control the content of the car. . . . Moreover,
[] power to control the automobile where the contraband
was found is sufficient in and of itself to give rise to the
inference of knowledge and possession. Inference,
members of the jury, means you may so find but you are
not required to do so.
These instructions were based on the pattern jury instructions for constructive
possession with additions from this Court’s decision in Mitchell and a mutually
agreed upon definition of the term inference.
The State does not argue that Defendant had actual possession of either the
firearm or the illegal drugs. Therefore, if Defendant possessed the firearm or illegal
drugs, he did so constructively and the trial court’s inclusion of the pattern jury
instructions is appropriate. The State presented the trial court with supporting case
law for their requested addition of the Mitchell standard to the pattern jury
instructions. “‘[W]hen a request is made for a specific instruction, correct in itself
and supported by evidence, the trial court, while not obliged to adopt the precise
language of the prayer, is nevertheless required to give the instruction, in substance
at least[.]’” Minor v. Minor, 366 N.C. 526, 531, 742 S.E.2d 790, 793 (2013) (quoting
Calhoun v. Highway Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935)). The Mitchell
standard, that the driver of a borrowed car has the requisite dominion and control
over the vehicle to support an inference of possession of the vehicle’s contents, has
been applied and upheld consistently by this Court. See Best, 214 N.C. App. at 47,
- 12 -
STATE V. WIRT
Opinion of the Court
713 S.E.2d at 562; State v. Hudson, 206 N.C. App. 482, 490, 696 S.E.2d 577, 583
(2010).
Defendant argues the trial judge should have included language articulating
the additional evidence rule as described in the footnote of the pattern jury
instructions. N.C.P.I. – Crim. 104.41. n.1. While Defendant objected to the addition
of the Mitchell standard, he did not request that the additional evidence rule from
the footnote be included when the trial court specifically asked Defendant’s counsel
if he had any other objections to the jury instructions.
Defendant argues that footnote 1 of the North Carolina Pattern Instructions
for constructive possession requires the additional evidence rule instruction when a
defendant’s control over the premises is nonexclusive. The footnote cites to four cases,
each of which are distinguishable from the present case, as none involve inferring
possession by the driver of a vehicle. State v. Thorpe, 326 N.C. 451, 453, 390 S.E.2d
311, 313 (1990) involved illegal drugs found in a pool hall; State v. Davis, 325 N.C.
693, 695, 386 S.E.2d 187, 188 (1989) focused on illegal drugs found inside a mobile
home; State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) involved illegal
drugs located inside an apartment; and State v. Harvey, 281 N.C. 1, 6, 187 S.E.2d
706, 710 (1972) dealt with illegal drugs found inside a home. Defendant’s status as
the driver of the truck is more closely analogous to Mitchell; therefore, the trial court
made proper additions to the jury charge.
Even assuming arguendo that the trial court erred in omitting the additional
evidence rule from the instructions, the State presented sufficient additional evidence
- 13 -
STATE V. WIRT
Opinion of the Court
such that the omission was not likely to mislead the jury. As noted above, the State
presented additional evidence that could lead a reasonable juror to believe that
Defendant was in constructive possession of both the firearm and methamphetamine.
Defendant was in close proximity to the handgun and was found with other illegal
drugs. The methamphetamine was found in a backpack with Defendant’s personal
belongings, he was found in actual possession of other illegal drugs, and he made
frequent stops at hotels, behavior commonly associated with drug activity. The jury
considered all of this evidence, in addition to Defendant’s status as the driver.
Further, the trial court instructed the jury that inference means “you may so
find but you are not required to do so.” “We presume ‘that jurors . . . attend closely
the particular language of the trial court’s instructions in a criminal case and strive
to understand, make sense of, and follow the instructions given them.’” State v.
Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993) (quoting Francis v. Franklin,
471 U.S. 307, 324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985)). The jury was specifically
instructed that Defendant’s status as the driver did not require that the jury find
constructive possession. Because the trial court correctly instructed the jury that
Defendant’s status as the driver was sufficient to support an inference of constructive
possession, and the jury was presented with additional evidence to consider that it
could infer constructive possession, Defendant has failed to meet his burden of
proving the jury instructions were likely to mislead the jury.
III. Conclusion
- 14 -
STATE V. WIRT
Opinion of the Court
For the reasons stated above, we conclude there was sufficient evidence to
support Defendant’s convictions of possession of a firearm by a felon and possession
of methamphetamine. The trial court’s instructions on constructive possession were
not misleading and, therefore, were not reversible error.
NO ERROR.
Judges ELMORE and ARROWOOD concur.
- 15 -