Opinion
No. COA12–1217.
2013-06-18
STATE of North Carolina v. Andwele Willie EAVES.
Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant.
Appeal by defendant from judgment entered 2 February 2012 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant.
ELMORE, Judge.
Andwele Willie Eaves (defendant) was tried on indictments charging him with felony possession with intent to sell or deliver marijuana, felony possession of a firearm by a felon, and misdemeanor possession of drug paraphernalia. He was found guilty of non-felonious possession of marijuana, felony possession of a firearm by a felon, and misdemeanor possession of drug paraphernalia. The convictions were consolidated for judgment and he was sentenced to an active term of twelve to fifteen months. Defendant now appeals.
Defendant first contends the trial court erred by sentencing him for possession of more than one half ounce of marijuana when the indictment did not charge that offense. We agree with defendant that the court erred in sentencing defendant but for a different reason. The jury verdict shows that the jury found defendant guilty of non-felonious possession of marijuana without naming any specific amount. The judgment reflects that in sentencing defendant, the trial court listed the offense as possession of marijuana in an amount “up to” one half ounce, rather than more than one half ounce as defendant erroneously asserts, and classified it as a Class 1 misdemeanor. According to N.C. Gen.Stat. § 90–95(d)(4) (2011), possession of marijuana in an amount up to one half ounce is a Class 3 misdemeanor. The trial court therefore erred by classifying the offense as a Class 1 misdemeanor. We accordingly remand for resentencing upon a correct classification and identification of the offense of misdemeanor possession of marijuana.
Defendant's other contention is that the trial court erred by denying his motion to dismiss the charge of possession of a firearm by a felon. Upon a motion to dismiss, a court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65–66, 296 S.E.2d 649, 651 (1982). The trial court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v.. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
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[.]” N.C. Gen.Stat. § 14–415.1(a) (2011). To convict an accused of this offense, the State must show the accused was previously convicted of a felony and was thereafter in possession of a firearm. State v. Wood, 185 N.C.App. 227, 235, 647 S.E.2d 679, 686 (2007).
Defendant contends the evidence is insufficient to establish that he possessed the firearm found during a search of the master bedroom of his girlfriend's apartment.
Possession of any item may be actual or constructive. 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.... 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[.]
State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted). Accordingly, a defendant has “constructive possession of [a] 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.” State v. Taylor, 203 N.C.App. 448, 459, 691 S.E.2d 755, 764 (2010).
Here, the trial court received into evidence State's Exhibit 13, a video and audio recording of an interview between defendant and law enforcement officers made at the scene of the search. During this interview, defendant told the officers that he owned a gun to protect his family and that he kept it in a closet in the master bedroom of the residence.
The officers did find a black Glock handgun on a shelf in the bedroom closet. The foregoing shows that defendant owned the gun, knew where it was located, and had the power and intent to control its disposition or use. Based upon this evidence, a jury could reasonably find that defendant possessed the gun found during the search of the residence. Defendant's evidence at trial indicating that the gun belonged to the named lessee of the apartment merely created a contradiction in the evidence for the jury to resolve and did not warrant dismissal of the charge.
We hold that the trial court properly denied the motion to dismiss at the close of all the evidence. We find no error in defendant's trial. We, however, remand for resentencing upon a conviction of the Class 3 misdemeanor of possession of marijuana.
No error in part, remanded for resentencing. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).