Opinion
No. COA12–1006.
2013-06-4
STATE of North Carolina, v. James Otis WOMACK, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for defendant appellant.
Appeal by defendant from judgment entered 15 February 2012 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 26 February 2013. Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for defendant appellant.
McCULLOUGH, Judge.
James Otis Womack, Jr. (“defendant”) appeals from his convictions for possession of a firearm by a felon and attaining the status of an habitual felon. For the following reasons, we find no error.
I. BACKGROUND
At approximately 3:00 a.m. on 25 November 2010, the Greensboro Police Department received a call from Guilford Metro 9–1–1 reporting an armed subject at a residence at 2601 East Bessemer Avenue. Officer Jeremy Beavers (“Officer Beavers”) of the Greensboro Police Department was the first officer to arrive at the scene. Officer Jeremy Johnson (“Officer Johnson”), followed by other officers, arrived seconds later.
Officer Beavers testified that when he arrived, an extremely distraught female, later identified as Tonya Person (“Ms.Person”), was cowering behind a vehicle directly in front of the residence. With Officer Johnson providing cover, Officer Beavers safely escorted Ms. Person away from her vehicle and to the patrol vehicles. Ms. Person then informed the officers that a man in the residence had pointed a gun at her. Ms. Person described the man as “a black male with a white T-shirt[.]” Ms. Person was then placed in a patrol vehicle for her safety.
After positioning themselves behind vehicles in front of the residence, the officers gave loud verbal commands identifying themselves as the police and ordering anybody inside the residence to exit. After giving commands for over a minute, the front door opened and defendant exited the residence. Upon exiting, defendant was belligerent and cursing. The officers ordered defendant to walk backwards towards them with his hands in the air and then ordered defendant to his knees. Defendant was then detained, searched, and placed in the back of Officer Beavers' patrol vehicle. The officers continued to give loud verbal commands for anyone in the residence to exit for approximately five minutes. Upon the further commands, a female exited the residence. The officers detained the female in the same manner as defendant and placed her inside another patrol vehicle.
Having not accounted for the alleged gun and not knowing whether anyone else was in the residence, the officers performed cursory sweeps of the inside of the residence and the outside perimeter of the residence. During the cursory sweep of the perimeter, Officer Johnson located an unloaded rifle lying on the ground about three feet away from stairs leading to a door on the east side of the residence.
Officer Beavers testified that after the weapon was found, he went over to his patrol vehicle to speak with defendant. Defendant, however, was uncooperative. Defendant was yelling, cursing, and kicking at the door of the patrol vehicle. Then, after Officer Beavers rolled up the window, defendant began to bang his head against the window. As a result of defendant's behavior, the officers removed defendant from the patrol vehicle and further restrained him. Officer Beavers testified that defendant was under arrest at that point. As the officers were placing defendant back into the patrol vehicle, defendant turned his head and spat, striking Officer Johnson on the right shoulder and chest. After placing defendant back into the patrol vehicle, Officer Beavers transported defendant to the Guilford County Jail.
On 24 January 2011, separate indictments were filed charging defendant with possession of a firearm by a felon, malicious conduct by a prisoner, misdemeanor assault by pointing a gun, and attaining the status of an habitual felon. Superseding indictments were issued on 15 August 2011 for the charges of possession of a firearm by a felon and malicious conduct by a prisoner.
On 30 December 2011, defendant filed a motion to suppress “[the] gun allegedly found next to [the] residence” and “the results of any search of the residence on ” from the evidence admitted at trial. Defendant's motion came on for hearing upon the case being called for trial at the 13 February 2012 Criminal Session of Guilford County Superior Court, the Honorable R. Stuart Albright presiding. The morning following the hearing, immediately preceding jury selection, the trial judge announced his decision to deny defendant's motion to suppress in open court. An order denying defendant's motion to suppress was subsequently filed on 15 February 2012.
During the jury trial, defendant objected to the admission of the gun into evidence. The objection was overruled.
At the conclusion of the trial, the jury returned verdicts finding defendant guilty of possession of a firearm by a felon, not guilty of malicious conduct by a prisoner, and not guilty of misdemeanor assault by pointing a gun. Defendant then entered an Alford plea of guilty to having attained the status of an habitual felon as a result of his conviction for possession of a firearm by a felon. he trial court entered judgment on 15 February 2012 sentencing defendant to a term of 84 to 110 months. Defendant gave oral notice of appeal.
II. ANALYSIS
Defendant raises two issues on appeal: whether the trial court erred by (1) denying his motion to suppress, and (2) instructing the jury on constructive possession.
MOTION TO SUPPRESS
The Fourth Amendment to the U.S. Constitution, applicable to the States through the Fourteenth Amendment, protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that search warrants shall only be issued “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV; see also, U.S. Const. amend. XIV.
Thus, “warrants are generally required to search a person's home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393–94, 57 L.Ed.2d 290, 301 (1978).
Parallel provisions in the North Carolina Constitution provide similar protections. SeeN.C. Const. art. I, §§ 19 & 20.
As described earlier, the police performed warrantless protective sweeps of the residence and the perimeter of the residence at 2601 East Bessemer Avenue during the early morning hours of 25 November 2010. During the sweep of the perimeter, Officer Johnson located a gun on the ground three feet away from steps leading to a door of the east side of the residence. Prior to trial, defendant filed a motion to suppress the gun from the evidence admitted at trial. However, following a hearing on 13 February 2012, the trial court denied defendant's motion. Now, on appeal, defendant's overriding argument is that the trial court erred by denying his motion to suppress because the gun was seized as a result of an unlawful search. In support of this overriding argument, defendant specifically challenges the trial court's rulings regarding standing, the validity of the protective sweep, and plain view.
“An appellate court accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence.” State v. Johnston, 115 N.C.App. 711, 713, 446 S.E.2d 135, 137 (1994). Thus, our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
Standing
Defendant first argues that the trial court erred by finding and concluding that defendant lacked standing because he failed to establish a reasonable expectation of privacy.
In North Carolina, only “a defendant who is aggrieved may move to suppress evidence[.]” N.C. Gen.Stat. § 15A–972 (2011). “[A] defendant is ‘aggrieved’ and ‘may move to suppress evidence’ ... only when it appears that his personal rights, not those of some third party, may have been violated ....“ State v. Taylor, 298 N.C. 405, 415, 259 S.E.2d 502, 508 (1979). Thus, as this Court recognized in State v. Barnes, “ ‘[t]o claim Fourth Amendment protection, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.’ “ 158 N.C.App. 606, 613, 582 S.E.2d 313, 318 (2003) (quoting Minnesota v. Carter, 525 U.S. 83, 84, 142 L.Ed.2d 373, 376 (1998)). Defendant bears the burden. See Taylor, 298 N.C. at 415, 259 S.E.2d at 508 (“[I]t is well settled that the burden is on defendant to establish standing.”).
In the order denying defendant's motion to suppress in this case, the trial court made the following findings of fact relevant to the issue of standing:
1. Defendant made no showing and failed to establish that he owned or had any legal, legitimate or privacy interest in the house or property located at 2601 East Bessemer Avenue in Greensboro, North Carolina.
2. On 25 November 2010, Defendant made no showing and failed to establish that he had an expectation of privacy in the house or property located at 2601 East Bessemer Avenue in Greensboro, North Carolina.
3. On 25 November 2010, Defendant had no expectation of privacy in the house or property located at 2601 East Bessemer Avenue in Greensboro, North Carolina.
Based on the findings of fact, the trial court concluded:
1. Based on the totality of circumstances, Defendant has not shown and failed to establish that he had an expectation of privacy in the house or property located at 2601 Bessemer Avenue in Greensboro, North Carolina on 25 November 2010.
2. Based on the totality of circumstance, Defendant has no standing to challenge the limited, warrantless, protective search of the property located at 2601 East Bessemer Avenue in Greensboro, North Carolina on 25 November 2010.
Defendant contends these findings are “wholly unsupported by the evidence [ ]” because “all of the evidence shows that [he] lived at 2601 East Bessemer Avenue[.]”
A review of the evidence before the court at the suppression hearing reveals only two references to the residence at 2601 East Bessemer Avenue as defendant's residence. First, while describing the events of 25 November 2012 during direct examination by the State, both Officer Beavers and Officer Johnson indicated that upon defendant's exit from the residence, defendant indicated that it was his property. Second, during cross-examination by the defense, Officer Beavers identified the defense's exhibits 2–5 as pictures of “Mr. Womack's house where the incident occurred.” Defendant did not testify at the hearing and offered no further evidence establishing a reasonable expectation of privacy in support of his motion to suppress.
Where the only evidence presented before the trial court at the suppression hearing was testimony that defendant made an unsubstantiated claim that it was his property and an identification of exhibits as pictures of defendant's house, we are hesitant to hold that defendant met his burden and the trial court erred in finding and concluding “defendant ... failed to establish ... an expectation of privacy” and “defendant had no standing to challenge the limited, warrantless, protective search[.]” Nevertheless, because the trial court alternatively determined that the limited, warrantless, protective search of the residence was valid, and because the arrest warrants listed defendant's address as 2601 East Bessemer Avenue and additional evidence at trial tended to show that defendant lived at the residence, we accept defendant's argument that he was an aggrieved party with standing to contest the search.
Protective Sweep
Defendant's second argument is that the trial court erred by finding and concluding that the gun was found pursuant to a valid limited, warrantless, protective search.
Despite the warrant requirement, warrantless searches have been upheld where “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey, 437 U.S. at 394, 57 L.Ed.2d at 301. The need to ensure the safety of police officers at an arrest scene has been recognized as an exigency justifying a limited, warrantless, protective search known as a protective sweep. See Maryland v. Buie, 494 U.S. 325, 327, 108 L.Ed.2d 276, 281 (1990) (defining a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.”) A protective sweep is justified where there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 108 L.Ed.2d at 286. Yet, “such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.” Buie, 494 U.S. at 335, 108 L.Ed.2d at 287.
In the order denying defendant's motion to suppress in this case, the trial court made the following findings of fact relevant to determining the validity of the protective sweep:
14. As the firearm pointed at Ms. Person had not been accounted for, Officer Johnson had good reason to fear for his safety and for the safety of the other officers and others at the scene.
15.Based on officer safety considerations, Officer Johnson then, without a search warrant and without consent, conducted a brief, limited protective sweep of the inside of the house and the perimeter of the outside of the house to determine if any individuals were hiding or located inside or outside of the house, and to determine if the firearm could be located.
....
20. Officer Johnson could not confirm that a person was not hiding or lurking, either on the side of the house where the firearm was located or in the wooded area only a few feet away, until he made a brief, limited search of the area, just as he did in this case.
21. For safety reasons, it was necessary for Officer Johnson to conduct a brief, limited protective sweep of the perimeter of the outside of the house to ensure that no person was lurking in the shadows either beside the house or in the wooded area immediately beside the house and the area of the yard where the firearm was ultimately located, especially considering that at the time he made said protective sweep the firearm was still unaccounted for.
22. Said exigent circumstances made it reasonable for Officer Johnson to conduct a limited, warrantless, protective sweep of the perimeter of the outside of the house, just as he did in this case.
23. It was immediately necessary and reasonable for Officer Johnson to conduct a limited, warrantless, protective sweep of the property located at 2601 East Bessemer Avenue to ensure that no one remained on or near said property preparing to fire a yet unfound weapon.
24. The scope of the search undertaken by Officer Johnson was no greater than necessary to ensure the officers a safe withdrawal from the scene and that their safety was not in jeopardy.
Based on the findings of fact, the trial court concluded:
3. Based on the totality of circumstances, the State has proven by a preponderance of the credible and believable evidence that exigent circumstances existed such that Officer Johnson properly conducted a limited, warrantless, protective search of the house and property located at 2601 East Bessemer Avenue to ensure the officers a safe withdrawal from the scene and that their safety was not in jeopardy.
4. Based on the totality of circumstances, the State has proven by a preponderance of the credible and believable evidence that Officer Johnson properly conducted a limited, warrantless, protective search of the house and property located at 2601 East Bessemer Avenue to ensure the officers a safe withdrawal from the scene and that their safety was not in jeopardy.
....
6. Based on the totality of circumstances, the State has proven by a preponderance of the credible and believable evidence that Officer Johnson was justified in seizing said firearm.
7. Based on the totality of circumstances, the State has proven by a preponderance of the credible and believable evidence that Officer Johnson properly seized said firearm.
8. Based on the totality of circumstances, the State has proven by a preponderance of the credible and believable evidence that none of Defendant's rights have been violated.
Defendant contends that in this case, “there are no facts which would warrant a reasonably prudent officer in believing that the [curtilage of defendant's] home harbored an individual posing a danger to those on the arrest scene.” Thus, defendant contends the protective sweep was unreasonable and violated his Fourth Amendment rights.
In support of his argument, defendant cites State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979), to demonstrate circumstances that justify a protective sweep. In Taylor, Virginia police received information that a suspect wanted for murder in North Carolina and for robbery and maiming in Virginia was in a house known to be used for the illegal sale of alcohol. Id. at 414, 259 S.E.2d at 507. The police surrounded the house and ordered the suspect to exit. Id. at 414, 259 S.E.2d at 507–08. After the defendant exited the house, identified himself as the suspect, and was detained, the defendant informed the police that he had a weapon inside. Id. at 414, 259 S.E.2d at 508. The police then performed a protective sweep of the inside of the house and recovered a pistol. Id. Given that the house was known to be used for illegal activity, there was a weapon unaccounted for in the house, and the police were unsure if the defendant was actually the suspect or if anyone else was in the house, our Supreme Court held “the strong possibility that the officers might be fired upon from the ... house constituted an ‘exigent circumstance’ which made it reasonable for them to make a limited, protective sweep of the ... house.” Id. at 418, 259 S.E.2d at 510.
The Court explained that,
[a] warrantless search of a dwelling following an arrest outside the dwelling will be upheld where the circumstances provide the arresting officers with reason to believe that a serious threat to their safety is presented. Where the facts disclose a “high potentiality for danger” surrounding an arrest made outside a dwelling, an entry into the dwelling is permissible for the limited purpose of making a cursory safety check, even though the arrest itself was achieved without entry. The immediate need to ensure that no one remains in the dwelling preparing to fire a yet unfound weapon at the arresting officer as he leaves the scene of the arrest with arrestee constitutes an exigent circumstance which makes it reasonable for the officer to conduct a limited, warrantless, protective sweep of the dwelling.
Taylor, 298 N.C. at 416–17, 259 S.E.2d at 509 (1979) (citations omitted).
Similarly, we hold that the protective sweeps of the residence and the perimeter in this case were reasonable based on the articulable facts and rational inferences.
Here, the police responded to an emergency call alleging assault by pointing a gun. Based on the nature of the emergency call, the officers reasonably feared for their safety while on the scene.
Furthermore, although the officers detained defendant, who matched the description of the alleged assailant given by Ms. Person, and a female who exited the residence, the officers could not be certain that defendant was the alleged assailant and did not know whether anyone else remained in the house. In fact, the officers gave loud verbal commands for anyone in the house to exit for approximately five minutes and defendant and the female did not exit immediately. In accordance with the holding in Taylor, we hold these facts, along with the fact that there was a gun unaccounted for, made it reasonable for the officers to conduct a protective sweep.
The fear of the officers on the scene is evident from their methodical approach to the residence and detainment of defendant and the female with guns drawn.
Defendant does not appear to challenge the validity of the protective sweep of the residence. Instead, defendant challenges the reasonableness of the protective sweep of the perimeter of the residence based on the particular facts of the case. Specifically, defendant points to the facts that the officers did not see anyone besides Ms. Person outside of the residence upon arrival, at least three officers watched the residence as defendant and the female exited the residence and were detained, and defendant matched the description of the alleged assailant provided by Ms. Person. Additionally, defendant distinguishes this case from cases where protective sweeps have been upheld based on the facts that the residence was not known for illegal activity, the police did not observe other people in the residence, the police were not concerned with the destruction of evidence, and the police did not observe anyone attempting to flee.
Although we acknowledge the facts recognized by defendant, we find sufficient facts to uphold the protective sweep of the perimeter. Here, Officer Johnson testified that it was very dark out when the officers responded to the call at approximately 3:00 a.m. Although the officers did not see anyone outside the residence, Officer Johnson testified that someone could easily hide behind the stairs leading to the side door or in the tree line near the side door. Furthermore, since the protective sweep of the residence revealed there was no one in the residence and the gun remained unaccounted for, it was reasonable to infer that someone might have attempted to dispose of the gun or escape with the gun out the side door. Based on these facts and inferences, we hold the protective sweep of the perimeter was reasonable.
Additionally, we note that the expectation of privacy afforded the curtilage of a residence is only an extension of the expectation of privacy afforded the residence itself. See Oliver v. United States, 466 U.S. 170, 180, 80 L.Ed.2d 214, 225 (1984) (“[T]he curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man's home and the privacies of life,’ and therefore has been considered part of the home itself for Fourth Amendment purposes.”) (citation omitted). Thus, if it was reasonable for the officers to perform a protective sweep of the inside of the residence, it was also reasonable for the officers to conduct a protective sweep of the perimeter where there were places an assailant could easily hide and launch an attack.
Considering the totality of the circumstances, we find competent evidence to support the trial court's findings of fact. Furthermore, we hold the trial court's findings of fact support its conclusions of law.
Plain View
Defendant's third argument is that the trial court erred by finding and concluding that the gun was found in plain view.
“[I]t is well settled that where the officers' search is conducted during the course of ‘legitimate emergency activities', they may seize evidence of a crime that is ‘in plain view’.” State v. Phillips, 151 N.C.App. 185, 192, 565 S.E.2d 697, 702 (2002). “In North Carolina, a seizure is lawful under [the plain view] doctrine when the officer was in a place he or she had a right to be at the time the evidence was discovered, it is immediately obvious that the items observed are evidence of a crime, and the discovery is inadvertent.” State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 487 (2001).
In this appeal, defendant argues the officers were not in a place they had a right to be and the discovery was not inadvertent. Thus, defendant contends the trial court erred in concluding the seizure of the gun was lawful because it was in plain view.
Defendant's argument that the officers were not in a place they had a right to be is meritless. As discussed above, the officers were conducting a reasonable protective sweep of the residence and the perimeter at the time they located the gun on the side of the residence. In regard to defendant's second argument, that the discovery of the gun was not inadvertent, the purpose of the protective sweep was to ensure the officer's safety on the scene. Although Officer Johnson was aware that he might find a gun and even acknowledged that he performed the sweep of the perimeter in order to “make sure no one's hiding there and no weapons are still located there[,]” the purpose of the protective sweep was to secure the area. Holding that an officer who is concerned that there is an unaccounted for gun while conducting a protective sweep cannot then seize a gun when it is in plain view would frustrate the purpose of an otherwise valid protective sweep, and in this case, leave a gun lying in the side yard of the residence. Therefore, even though Officer Johnson anticipated he might find a gun, the discovery was inadvertent and secondary to the purpose of the protective sweep.
CONSTRUCTIVE POSSESSION
After retiring to deliberate upon the conclusion of the arguments, the jury submitted a question to the trial court asking for a definition of “possession of a weapon.” Without objection and in accordance with N.C.P.I.—Crim. 104.41 (2008), the trial court instructed the jury that:
Possession of a firearm may be either actual or constructive. A person has actual possession of a firearm if he has it on his person, is aware of its presence, and has both the power and intent to control its disposition or use.
A person has constructive possession of a firearm if he does not have it on his person, but is aware of its presence and has both the power and intent to control its disposition or use. A person's awareness of the presence of the firearm and the person's power and intent to control its disposition or use may be shown by direct evidence or may be inferred from the circumstances.
Defendant now asserts that the trial court's instruction on constructive possession in response to the jury's question amounted to plain error.
Generally, “[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires....” N.C.R.App. P. 10(a)(2); see also State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999). However, “[i]n 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 ... errors in the judge's instructions to the jury....” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). In order to establish plain error,
a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.” Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]”
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “Indeed, even when the ‘plain error’ rule is applied, [i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” State v. Anderson, 350 N.C. 152, 177, 513 S.E.2d 296, 311 (1999) (internal quotation marks and citations omitted) (alteration in original).
Possession of a firearm may be actual or constructive. State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998). Actual possession requires that the defendant have physical or personal custody of the firearm. Id. 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. Id. 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. State v. Young, 190 N.C.App. 458, 461, 660 S.E.2d 574, 577 (2008). Constructive possession depends on the totality of the circumstances in each case. State v. Glasco, 160 N.C.App. 150, 157, 585 S.E.2d 257, 262,disc. review denied,357 N.C. 580, 589 S.E.2d 356 (2003).
State v. Taylor, 203 N.C.App. 448, 459, 691 S.E.2d 755, 764 (2010).
In this case, defendant argues that the constructive possession instruction amounted to plain error because there was no evidence to support the instruction. Specifically, defendant argues he did not have exclusive control of the curtilage of the residence and the State failed to show additional incriminating circumstances by which constructive possession could be inferred. We disagree.
We find the facts in this case sufficient to warrant the constructive possession instruction under the totality of the circumstances. Although the evidence tended to show that defendant's father rented the residence, defendant lived at the residence. In fact, defendant was the primary resident. Defendant's father lived in Yanceyville and visited the residence from time to time. Defendant and his father testified that the father stayed at the residence only two to three days per week while defendant was recovering from a July 2010 motorcycle accident and only one time a week after defendant had recovered. Furthermore, although defendant's father testified the gun was his, the father testified that he left the firearm in the residence when he went home to Yanceyville. Defendant's father would hide the firearm behind clothes in the back bedroom closet and take the clip with him. Defendant's father stated defendant had seen him take the clip. Defendant also testified that his father kept the firearm in the closet in the bedroom.
Based on the totality of the circumstances, including the facts that defendant was the primary resident with control over the residence, defendant's father always put the gun in the closet and Officer Johnson found the firearm approximately three feet from the steps leading to the east side door, and the fact that defendant was present at the residence when the gun was discovered, we hold there is sufficient evidence to instruct the jury on constructive possession.
III. Conclusion
For the reasons discussed above, we hold the trial court did not err in denying defendant's motion to suppress and did not plainly err in instructing the jury on constructive possession.
No error. Judges HUNTER (Robert C.) and DAVIS concur.
Report per Rule 30(e).