Opinion
NO. COA12-674
12-18-2012
STATE OF NORTH CAROLINA v. DAVID WAYNE BELCHER
Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State. Leslie C. Rawls, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Randolph County
No. 10 CRS 52763; 10 CRS 52764
Appeal by Defendant from judgment entered 13 January 2012 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 29 November 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.
Leslie C. Rawls, for Defendant.
BEASLEY, Judge.
David Belcher (Defendant) appeals from judgment entered on his conviction for possessing a firearm as a convicted felon. For the following reasons, we find no error.
In December of 2000, Defendant was convicted of discharging a weapon into an occupied property, a felony. On 14 January 2012, three Sheriff's officers responded to several complaints of drug activity at a mobile home in Randleman. Two of the officers knocked on the front door, while the third went around to the back. A male voice answered the knock to ask who was there. The officers identified themselves. The male voice asked again who it was and the officers responded again. The officers at the front heard shuffling and the back door open. The officer at the back saw Defendant run out of the back door and throw something. On the ground, the officers found metal scales and bags full of marijuana.
Defendant and Ms. Hicks, who was also occupying the home, both signed a written consent for the officers to search the home. There may have also been children at home. The officers found two prescription pill bottles: one did not have a name but contained oxycodone, and the other was labeled as oxycodone with the name Robin Belcher but contained no pills. The officers found the following pieces of mail: a Christmas card addressed to Defendant, Ms. Hicks, and the children at the mobile home's address; a bill addressed to Defendant at a different address; and a power bill in Ms. Hick's name for service at the mobile home and at the same address as the bill in Defendant's name. Additionally, the officers found sandwich baggies, more marijuana in bags, and papers with handwritten notes of individual's names and numbers. No evidence of ownership or leasehold status in the mobile home was produced.
The officers found two shotguns in the master bedroom closet. One of the officers testified at trial that Defendant said "something about going hunting with [the guns] and then changing his mind, that he did not, that the guns didn't belong to him, that somebody had left one of them there."
Defendant was charged with felonious trafficking in opium, possessing marijuana with the intent to manufacture, sell, or deliver, simple possession of marijuana, and possessing a firearm as a convicted felon. The State dismissed the charge of felonious simple possession of marijuana. At trial, Defendant did not contest the remaining marijuana charge. Defendant made a motion to dismiss all charges at the close of the State's evidence. The trial court granted the motion for the trafficking charge, finding insufficient evidence to demonstrate constructive possession where the pills were found in a common area without a label, the mail found at the home was insufficient to link Defendant to the residence, and there was no evidence of physical proximity. The court denied the motion with respect to both remaining possession charges. The jury returned verdicts of guilty on both charges.
Defendant argues that the trial court erred by denying his motion to dismiss the charge of possessing a firearm as a felon because the evidence was insufficient as a matter of law. 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 [the] 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, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense. If so, the motion is properly denied.State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)(citations and internal quotation marks omitted). " Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The evidence should be considered "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). Circumstantial evidence may be sufficient, but "the court must consider whether a reasonable inference of [the] defendant's guilt may be drawn from the circumstances." State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000) (citations and internal quotation marks omitted).
Proof of possession of a firearm by a felon requires proof that the defendant is a convicted felon and that the defendant possessed a firearm. N.C. Gen. Stat. § 14-415.1 (2010).
Possession of a firearm may be actual or constructive. . . . [T]he 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. 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. Constructive possession depends on the totality of the circumstances in each case.State v. Taylor, 203 N.C. App. 448, 459, 691 S.E.2d 755, 764 (2010)(internal citations omitted). "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." State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009)(internal quotation marks and citations omitted). "Under the corpus delicti rule, the State may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence that supports the facts underlying the confession." State v. Smith, 362 N.C. 583, 588, 669 S.E.2d 299, 303 (2008) (citing State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985)).
Defendant contends that because of the corpus delicti rule, the trial court had no more evidence upon which to deny the motion to dismiss on the possession charge than it did on the trafficking charge. However, this overlooks the fact that the corpus delicti rule does not require that an extrajudicial confession be excluded from the totality of circumstances considered, it merely requires additional evidence that is independent of the confession but lends support to the facts elicited by the confession. See id. Thus, here, the statement made by Defendant regarding prior use of the firearms provides additional circumstances not present for the trafficking charge. Further, that any one piece alone is insufficient does not mandate a finding of error because the evidence is not reviewed individually but as a totality. See Taylor, 203 N.C. App. at 459, 691 S.E.2d at 764.
Here, while Defendant recanted his statement, when the contradiction is resolved in the State's favor, it suggests that Defendant was not only aware of the presence of the firearms but had used them in the past and had the intent and ability to exercise control over them. This is supported by several facts. A male voice answered the knocks on the door and Defendant was the only male at home. An officer saw Defendant run out of the back door and throw scales and marijuana on the ground. Mail was found addressed to Defendant, Ms. Hicks, and children as a family unit residing at the home. Defendant claimed ownership of the marijuana found in the home by conceding the charge. The presence of scales, large quantities of marijuana, baggies, lists of names and numbers of individuals, and the complaints of drug activity, coupled with this claimed ownership indicate that Defendant was running a drug distribution operation out of the mobile home. Lastly, Defendant provided written consent to search the home, something that would not be necessary unless he claimed a right to the privacy it provided. All of these facts together indicate the ability and intent to exert control over any items in the house, including the firearms. These circumstantial facts considered with the admission in the light most favorable to the State provide sufficient evidence of constructive possession of the firearms to survive Defendant's motion to dismiss.
No Error.
Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).