Opinion
COA22-343
12-20-2022
STATE OF NORTH CAROLINA v. KENNETH SHAWN CAMPBELL, Defendant.
Attorney General Joshua H. Stein, by Assistant Attorney General Regina T. Cucurullo, for the State. Drew Nelson for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 4 October 2022.
Appeal by Defendant from judgment entered 2 November 2020 by Judge J. Thomas Davis in McDowell County Superior Court. No. 20 CRS 000346
Attorney General Joshua H. Stein, by Assistant Attorney General Regina T. Cucurullo, for the State.
Drew Nelson for defendant-appellant.
MURPHY, Judge.
¶ 1 Defendant Kenneth Shawn Campbell argues that the trial court plainly erred by instructing the jurors they "may presume" he knew the specific terms of a domestic violence protective order ("DVPO") entered against him based on its prior service. Reviewing the evidence before the jury in this matter, we hold that the instruction did not have a probable impact on the jury's verdict and the trial court did not plainly err.
BACKGROUND
¶ 2 On 25 September 2020, a DVPO was issued against Defendant, effective for one year. In accordance with N.C. G.S. § 50B-3.1, the DVPO provided, inter alia, "[D]efendant's conduct requires that he[] surrender all firearms, ammunition, and gun permits." See generally N.C. G.S. § 50B-3.1(a) (2021). Additionally, the DVPO prohibited Defendant from possessing, receiving, or purchasing a firearm for the effective period, and suspended Defendant's concealed handgun permit for the effective period. Defendant did not attend the DVPO hearing, and a copy of the order was mailed to Defendant on the day it was issued.
¶ 3 On 14 October 2020, Officer Evan Tucker, Deputy Holland, and other law enforcement officers conducted a welfare check of Defendant at his property, at the request of Defendant's family member. During the check, Officer Tucker asked Defendant if he had any weapons. Defendant responded, "[l]isten, I don't want to get in trouble, but I want to be honest with you guys[.]" Defendant raised his hands, stated that he had a gun, and asked the officers to retrieve it from the pocket of his shorts. Officer Tucker removed a revolver from Defendant's pocket, and Defendant was placed in handcuffs by Deputy Holland. Deputy Holland informed Defendant that he was being taken into custody for possessing a firearm in violation of the DVPO. In response, Defendant cried, but did not seem surprised. Officers placed Defendant in Deputy Holland's patrol car and brought him to the courthouse for a magistrate hearing.
¶ 4 On 21 October 2020, Officer Tucker and other officers were dispatched to Defendant's home in response to a "welfare check on a suicidal subject." After entering the home, they found Defendant seated and pointing a gun at his head. Defendant was visibly upset, shaking and crying, and he appeared to be very intoxicated. One of the officers detected an odor of alcohol on Defendant's person. Tucker retrieved the firearm from Defendant, and he was taken into custody and transported to the hospital, where he was involuntarily committed. Defendant had taken the gun from the truck of a person who had done yard work at his home earlier that day.
¶ 5 On 2 November 2020, Defendant was indicted by a grand jury on two counts of possession of a firearm while subject to a DVPO. The first count was for the alleged offense on 14 October 2020, and the second for the alleged offense on 21 October 2020. The matter came on for trial before the McDowell County Superior Court. On Defendant's motion, the trial court dismissed the first count after the close of the State's evidence and provided,
There is evidence that [Defendant] was arrested on [the DVPO] on . As a result thereof, he was then put on notice that the order existed and also too that
he had to comply with the [DVPO], and to some extent that would satisfy the requirements of the [DVPO].
This left the second count intact.
¶ 6 During the charge conference at the close of trial, the State argued that whether Defendant acted "knowingly" was not an element of the crime. The trial court disagreed and determined the jury would be instructed that Defendant must have acted "knowingly." In his closing statement, Defendant argued that the evidence failed to show he knowingly violated the DVPO, asserting that he was "so mentally distressed that he really didn't know what he was doing" on 21 October 2020. Following closing arguments, the trial court instructed the jury:
For you to find [Defendant] guilty of this offense, the State must prove three things beyond a reasonable doubt. First, that a valid [DVPO] was issued on in McDowell County District Court pursuant to NC law. Second, that [Defendant] on or about 21 October 2020 violated the valid [DVPO] by possessing a firearm. A person possesses a firearm when the person is aware of its presence and has both the power and intent to control the disposition or use of it.... And third, that [Defendant] did so knowingly. Where a [DVPO] has been served on a defendant, you may presume that the defendant knew the specific terms of the [DVPO]. "Knowingly" means that [Defendant] knew what he was about to do and, with such knowledge, proceeded to do the act charged.
¶ 7 The jury found Defendant guilty of the 21 October 2020 DVPO violation. The trial court issued a suspended sentence of 8 to 19 months and placed Defendant on probation for 36 months with a special term of probation requiring Defendant to be incarcerated for 20 days. Defendant timely appealed.
ANALYSIS
¶ 8 Defendant argues the trial court plainly erred by instructing the jury that it could presume Defendant knew the specific terms of the DVPO based on its service. Defendant asserts that the instruction language pertaining to presumption is optional and "should be given only when warranted by the evidence." According to Defendant, the issue of his knowledge of the terms of the DPVO was in dispute, and conflicts in the evidence must be determined by the jury alone. Therefore, the use of the optional language included in the instruction was unwarranted. The State, meanwhile, contends that the evidence supports the use of the optional language, that the inference of Defendant's knowledge was permissive rather than mandatory, and that, even if the optional language had been omitted from the instructions, the evidence supported Defendant's knowledge of the terms of the DVPO.
¶ 9 If an instructional issue is unpreserved in a criminal case, we may review the trial court's decision for plain error, but only if "the defendant [] specifically and distinctly contend[s] the alleged error constitutes plain error." State v. Lawrence, 365 N.C. 506, 516 (2012) (marks omitted). "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." Id. at 518. A fundamental error is one that prejudices the defendant, who must establish "that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty." Id. (marks omitted).
¶ 10 Even assuming the trial court's instruction was in error, such an erroneous instruction did not constitute plain error because it did not have a probable impact on the verdict. During the wellness check on 14 October 2020, Defendant told the officers that he had a firearm as he "[did not] want to get in trouble[.]" When Deputy Holland informed Defendant he was being arrested for possessing a firearm in violation of the DVPO seven days prior to this charge, Defendant did not seem surprised. As the trial court indicated outside the presence of the jury, Defendant's arrest "put [him] on notice that the order existed and also too that he had to comply with the order[.]" Additionally, the firearm possessed by Defendant on 21 October 2020 was not his own; it was taken from another person's vehicle. Considering this evidence, we cannot say it is probable the jury would have reached a different verdict as to Defendant's knowledge of the terms of the DVPO.
¶ 11 In light of the evidence from 14 October 2020 and 21 October 2020, Defendant has failed to demonstrate that the trial court's use of the optional language in its instruction, if erroneous, had a probable impact on the jury's verdict. We hold that Defendant was not prejudiced by the trial court's instruction and, accordingly, the trial court did not plainly err.
CONCLUSION
¶ 12 Defendant has failed to demonstrate that the trial court's inclusion of the optional jury instruction language had a probable impact on the jury's verdict as it related to his knowing violation of a DVPO by possession of a firearm. Accordingly, the trial court did not plainly err in its jury instruction.
NO PLAIN ERROR.
Chief Judge STROUD and Judge GORE concur.
Report per Rule 30(e).