Opinion
No. COA02-1022
Filed 18 March 2003 This case not for publication.
Appeal by defendant from judgment entered 2 October 2001 by Judge Claude S. Sitton in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 March 2003.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General John J. Aldridge, III, for the State. Brian Michael Aus for defendant-appellant.
Mecklenburg County Nos. 00CRS155086, 155088.
Willie Jenkins ("defendant") was found guilty of possession of a firearm by a felon. After admitting to habitual felon status, he was sentenced as a Class C felon with a Prior Record Level IV to 133 to 169 months imprisonment. Defendant gave notice of appeal in open court. We find no error but remand for correction of clerical errors.
The State's evidence tended to show the following: On the night of 5 June 2000, defendant was stopped for speeding on Independence Boulevard by Charlotte Mecklenburg Police Officer J.T. Gilley ("Gilley"). In the car with defendant were two female passengers — one sitting in the front passenger's seat and the other sitting in the middle of the back seat. After Gilley detected alcohol on defendant's breath, he asked defendant to step out of the vehicle. Shining his flashlight into the vehicle, Gilley saw a Ruger .357 handgun on the rear floorboard, sticking out from underneath the back seat, directly behind the driver's seat. The gun was a five-shot revolver and was fully loaded with RP .38 caliber bullets. In defendant's right front pocket were five additional RP .38 caliber bullets of the same color and make as those in the gun. Given the size of the car's interior, Gilley determined it would have been "[v]ery easy for the Defendant to put the gun underneath the backseat . . ." where it was found.
Defendant stipulated that he had at least one prior felony conviction but offered no additional evidence.
Defendant argues on appeal that the trial court erred in denying his motion to dismiss the charge of possession of a firearm by a felon, absent evidence that he possessed the handgun found in the car. We disagree.
Possession of a firearm may be actual or constructive. See State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). A person has constructive possession of an object 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. See State v. Williams, 136 N.C. App. 218, 523 S.E.2d 428 (1999).
The driver of a car "has the power to control the contents of the car." State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974). Thus, where contraband is found in a car driven by a defendant, "this fact is sufficient to give rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury." Id. A defendant may rebut this inference with "evidence concerning his knowledge of the contents of the car." Id. If no such rebuttal is made, however, "the State may overcome a motion for nonsuit by presenting evidence which places the accused within such close juxtaposition to the contraband as to justify the jury in concluding that the contraband was in the accused's possession." Id. (citing State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972)).
Here, the State adduced substantial evidence of defendant's constructive possession of the handgun. Defendant was the driver of the vehicle in which the gun was found. The gun was located under the back seat directly behind defendant's seat and within defendant's reach. Although a passenger in the back seat was likewise in close proximity to the gun, defendant had five bullets in his pocket identical to those found in the weapon. Defendant's actual possession of this ammunition was significant circumstantial evidence tying him to the gun. Cf. State v. Wallace, 104 N.C. App. 498, 503, 410 S.E.2d 226, 229 (1991) ("[t]hat defendant had pistol ammunition in his possession only a few hours after the commission of a robbery in which pistols were used and in which he has been implicated has a tendency to make defendant's participation in the robbery `more probable . . . than it would be without the evidence'"). Taken together and viewed in the light most favorable to the State, these facts give rise to a reasonable inference that defendant knew the gun was in the car and had it within his dominion and control. See State v. Neal, 109 N.C. App. 684, 428 S.E.2d 287 (1993).
Defendant next argues that the trial court mistakenly marked the box on the judgment reflecting that his sentence was imposed pursuant to a plea agreement. However, "[t]hat notation is plainly a mere clerical error which has not prejudiced defendant." State v. Leonard, 87 N.C. App. 448, 452, 361 S.E.2d 397, 399 (1987).
Defendant further notes that his sentence of 133 to 169 months falls within the presumptive range for his offense and record level. However, defendant points out that the court erred by failing to specify that it was imposing a sentence within the presumptive range. Defendant concedes the trial court was not required to enter findings of aggravating and mitigating factors if it intended to impose a presumptive sentence. Nevertheless, he seeks a new sentencing hearing because the court's intentions are not clear.
Defendant's sentence is within the applicable presumptive range. See N.C. Gen. Stat. § 15A-1340.17 (2001). The trial court need not make findings in aggravation and mitigation unless it departs from the presumptive range. See State v. Streeter, 146 N.C. App. 594, 553 S.E.2d 240 (2001), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002). Nothing in the trial transcript suggests the court intended to impose an aggravated sentence. The State offered no evidence of aggravating factors, and the court found none. Thus, the trial court's failure to check the box reflecting its entry of a presumptive sentence is also a non-prejudicial clerical error. See State v. Jarman, 140 N.C. App. 198, 535 S.E.2d 875 (2000).
We hold that defendant received a fair trial free from prejudicial error. We remand to the trial court for correction of the clerical errors on the judgment.
No error; remanded for correction of judgment.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).