Opinion
NO. COA12-633
12-18-2012
STATE OF NORTH CAROLINA v. JASON WRIGHT
Attorney General Roy Cooper, by Special Deputy Attorney General Mary Louise Lucasse, for the State. James N. Freeman, Jr., for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Mecklenburg County
Nos. 09 CRS 237182,
09 CRS 237186,
09 CRS 068806
Appeal by Defendant from judgments entered 6 July 2011 by Judge Robert T. Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 November 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Mary Louise Lucasse, for the State.
James N. Freeman, Jr., for Defendant.
, Judge.
Jason Wright (Defendant) appeals from his convictions of possession of a firearm by a felon, resisting a public officer, and attaining habitual felon status. For the reasons stated below, we find no error.
Defendant was indicted on charges of possession of a firearm by a felon and resisting a public officer on 24 August 2009. Defendant was indicted for attaining habitual felon status on 12 October 2009. According to the parties, Defendant was also indicted for assault with a deadly weapon on a government official, carrying a concealed weapon, cruelty to animals, and shooting into an occupied dwelling, but the record fails to include these indictments. Defendant was found guilty of possession of a firearm by a felon, resisting a public officer, and attaining the status of a habitual felon on 6 July 2011. The record fails to indicate the outcome of the other charges.
On 30 July 2009, Dechelle Connelly was sitting in her apartment when she saw a car pull up outside of her apartment. Ms. Connelly's dog was on the patio and began to bark. Ms. Connelly observed that the car was a dark blue or dark green Ford Taurus or Crown Victoria. Ms. Connelly testified that three individuals were in the car and that two exited the car. Ms. Connelly identified Defendant as one of the men who exited the car. She testified that Defendant walked up to the metal patio door and began shooting. During the shooting, Ms. Connelly hid in her bedroom closet and called 911. Ms. Connelly's dog was killed during the shooting.
Shortly after midnight on 31 July 2009, Officer T.J. Jolly observed several individuals hanging around but not pumping gas at a gas station where there had been several recent robberies. Officer Jolly observed a green Crown Victoria exit the parking lot into oncoming traffic at a high rate of speed and cross several lanes without signaling in order to turn into the Wal-Mart parking lot. Officer Jolly described the driver's behavior as "very reckless." When the vehicle pulled into a parking spot, Officer Jolly pulled in behind him at an angle, activated his lights, and attempted to call in the traffic stop. He was unable to call it in before he noticed the front seat passenger attempting to exit the car. Officer Jolly ordered him back into the car, whereupon the driver, identified as Defendant, started to exit the car. Officer Jolly ordered him to get back into the car. As Officer Jolly was calling in the traffic stop, Defendant put his car in reverse and backed into Officer Jolly's patrol car twice. Then, Defendant attempted to get out of the car another time, and Officer Jolly kicked Defendant back into the car. Defendant put his car in reverse once more and backed into Officer Jolly's car. Officer Jolly struggled with Defendant and eventually let him go since he saw patrol cars headed toward his location and called in a description of Defendant. Officers detained Defendant before he reached the home and garden center of the Wal-Mart. Meanwhile, Officer Jolly focused on the two passengers in the car and drew his gun on them. After Officer Jolly detained the two passengers by handcuffing them and placing them in the rear of a patrol vehicle, Defendant's front seat passenger, Luciano Torez, told Officer Jolly that Defendant had a gun. Based on this statement, Officer Jolly searched the vehicle.
Defendant's brief also refers to this individual as "Torrez." The transcript spells his name "Torez," and that is the spelling we will use for consistency.
Defense counsel objected before Officer Jolly described the search of the vehicle. Defense counsel argued that Officer Jolly could not testify regarding the search based on lack of foundation, hearsay, and the illegal nature of the search. The trial court treated the objection as a motion to suppress and denied it. The trial court admitted Officer Jolly's testimony that Mr. Torez told him Defendant had a gun as an explanation for Officer Jolly's search of the car rather than for its truth.
Officer Jolly found a gun in the pocket behind the driver's seat. The gun was admitted without objection. After securing the gun, Officer Jolly contacted his dispatcher to see if there had been any crimes in the area involving a green Crown Victoria. It was at this point that he learned of the shooting at Ms. Connelly's apartment. Officer Jolly received a description of the car and suspect and determined that Defendant and his car matched that description.
Officer Towel took Ms. Connelly to the hospital where Defendant was receiving medical treatment to conduct a show-up. Prior to trial, Defendant filed a motion to suppress the out-of-court identification and in-court identification on 26 March 2010. The motion was denied on 1 February 2011. Ms. Connelly looked into Defendant's room as she walked by the room. She identified Defendant as one of the men who shot into her apartment.
Hasson Harrell, the backseat passenger, testified that he, Mr. Torez, and Defendant had been drinking and smoking marijuana on the night of the shooting. Mr. Harrell had fallen asleep in the car but was awoken by gunshots. He then saw Defendant and Mr. Torez get back into the car. He saw Defendant with a gun that night. The State also presented testimony that Defendant had been shot and robbed at the same apartment complex earlier that year.
Representing himself, Defendant recalled Officer Jolly, Ms. Connelly, and Mr. Harrell to testify. Ms. Connelly testified to identifying Defendant at the hospital. Mr. Harrell testified that Defendant threw the gun into the backseat, it landed in his lap, and he put it in the pocket behind the driver's seat after Officer Jolly stopped the car.
Defendant testified as well. Defendant stated that he, Mr. Torez, and Mr. Harrell were hanging out around the apartment complex smoking and drinking on the night of the shooting. When Defendant heard the shots, he jumped into his car. Defendant testified that he was not involved in the shooting and did not have a gun that night.
Defendant argues that the trial court erred in denying his motion to suppress the evidence discovered in Officer Jolly's search. Defendant, however, did not renew his objection to the evidence and has failed to argue that the admission of the evidence amounted to plain error. As such, he has failed to preserve this issue for appellate review, and we dismiss his argument. State v. Lawrence, __ N.C. __, __, 723 S.E.2d 326, 333 (2012) ("To have an alleged error reviewed under the plain error standard, the defendant must 'specifically and distinctly' contend that the alleged error constitutes plain error." (quoting N.C. R. App. P. 10(a)(4))); State v. Waring, 364 N.C. 443, 468, 701 S.E.2d 615, 631-32 (2010)(requiring a contemporaneous objection because a motion to suppress is a preliminary ruling). Because Defendant did not preserve this issue or allege plain error, we dismiss Defendant's argument without deciding whether Officer Jolly's actions were permissible.
Defendant also argues that the trial court erred or committed plain error in admitting Ms. Connelly's out-of-court and in-court identifications of Defendant. We dismiss Defendant's argument as invited error. "A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443(c) (2011). "[A] defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review." State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001). Defendant invited this error by eliciting identification testimony from Ms. Connelly during his case-in-chief. We, thus, dismiss this issue.
Defendant argues that the trial court erred in admitting the hearsay statement that Defendant had a gun. We disagree.
A statement not offered for its truth is not hearsay. N.C. Gen. Stat. § 8C-1, Rule 801(c). Here, the trial court admitted Mr. Torez's statement to explain Officer Jolly's search rather than for the fact that Defendant had a gun; thus, the statement was not hearsay. See also State v. Hodges, 195 N.C. App. 390, 400-01, 672 S.E.2d 724, 731 (2009)(noting that statement as explanation for search was not hearsay).
Even if the trial court committed error in admitting the hearsay statement as an explanation for the search, any error was harmless since Mr. Harrell later testified that Defendant had a gun. See State v. Burrus, 344 N.C. 79, 91, 472 S.E.2d 867, 875 (1996)(finding only harmless error when there was sufficient other evidence on same point).
Defendant's final argument is that the trial court committed plain error in instructing the jury on constructive possession for possession of a firearm by a felon. We reject this argument.
The trial judge may not give jury instructions that are unsupported by the evidence. State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973).
A defendant constructively possesses contraband when he or she has the intent and capability to maintain control and dominion over it. The defendant may have the power to control either alone or jointly with others. Unless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant hadState v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009)(internal citations and quotation marks omitted). "[T]wo factors frequently considered are the defendant's proximity to the contraband and indicia of the defendant's control over the place where the contraband is found." Id. at 100, 678 S.E.2d 595.
constructive possession.
Here, there were sufficient incriminating circumstances to warrant an instruction on constructive possession. Defendant was the owner of the car, and Mr. Harrell's testimony connected the gun from Defendant's actual possession to his constructive possession in the seat pocket behind the driver's seat where Defendant was seated. We find no error in the trial court's instructions.
For the reasons stated above, we find no error.
No Error.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).