Opinion
No. COA10-1235
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgment entered 19 March 2010 by Judge Edgar B. Gregory in Ashe County Superior Court. Heard in the Court of Appeals 27 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. Peter Wood for defendant-appellant.
Ashe County No. 07 CRS 51868.
David Morris Souther ("defendant") appeals from a judgment entered on 19 March 2010 after a jury found him guilty of possession of a firearm in violation of a domestic violence protective order ("DVPO"). After careful review, we find no error.
Background
On 29 March 2007, defendant signed a DVPO acknowledging that on 20 March 2007 he placed his wife "in fear of imminent serious bodily injury" and subjected her to "continued harassment that rises to such a level as to inflict serious emotional distress[.]" The DVPO, which was entered in New Hanover County, expressly prohibited defendant from possessing, owning, receiving, or purchasing a firearm. The DVPO further warned:
If this Order prohibits you from possessing, owning, receiving or purchasing a firearm and you violate or attempt to violate that provision, you may be charged with a Class H felony pursuant to North Carolina G.S. 14-269.8 and may be imprisoned for up to 30 months.
Defendant was, therefore, put on notice that he was not to possesses a firearm. Defendant stated in the DVPO that all of his firearms were, at that time, "in police custody."
The evidence presented at trial tended to show that in March 2007, defendant moved into his brother's vacation home in Ashe County, North Carolina. Defendant's brother, Terry Souther ("Terry"), testified that he uses the property as a vacation home, but has never lived there on a permanent basis.
On 27 October 2007, defendant attempted to purchase a firearm from S L Outdoor Sports Supply in Sparta, North Carolina. Defendant was required to fill out an application for the firearm in which he responded "No" when asked if he was "subject to a court order retraining [him] from harassing, stalking, or threatening [his] child or an intimate partner or child of such partner?" The owner of the store, John W. Spicer ("Mr. Spicer"), testified that an application for a firearm is generally processed and approved on the same day it is submitted; however, some applications are flagged by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") and delayed for up to three days. Defendant's application was delayed, but defendant paid for the firearm and asked Mr. Spicer to hold it for him. Mr. Spicer testified that defendant told him that the delay probably had something to do with a situation in New Hanover County. Mr. Spicer stated that defendant "acted like he knew what it was about." Mr. Spicer was later contacted by ATF and told that defendant's application had been denied. After defendant left the store, a law enforcement officer from New Hanover County called Mr. Spicer and inquired about defendant's attempt to purchase a firearm.
On 30 November 2007, Detective Tim Bartlett of the Sparta Police Department and Sergeant David Upchurch of the Ashe County Sheriff's Department went to defendant's residence to arrest him for attempting to purchase a firearm while a DVPO was in effect. When the officers approached the house, defendant, who was alone, opened the door and invited the officers inside. Sergeant Upchurch testified that while they were standing in the living room area, he saw "what appeared to be two long guns there at the door — behind the door." The officers asked defendant if there were any other firearms in the house and defendant produced a third firearm from the bedroom. Defendant told the officers that the guns belonged to his brother. Defendant's brother testified at trial that one of the rifles belonged to him, one belonged to a family friend, and he was not sure who owned the third rifle.
Defendant was arrested pursuant to the original arrest warrant for attempting to purchase a firearm, but a second arrest warrant was subsequently issued for possession of a firearm. The indictment alleged that defendant violated a valid DVPO "by possessing, or receiving or attempting to own, possess, purchase or receive any firearm or ammunition in violation of a[n] active protective order or any successive protective order[] entered against the defendant."
At trial, the State prosecuted defendant for possession of a firearm on 30 November 2007. Defendant testified at trial and conceded that he was the only person living in the house at that time and that the guns were in the residence; however, defendant claimed that he was unaware that the DVPO prohibited him from possessing a firearm. Defendant stated that he did not read the DVPO before he signed it and that he never received a copy of the DVPO after it was entered by the trial court. Defendant testified that it was his belief that he had been "cleared of all domestic violence."
It does not appear that the State prosecuted defendant for attempting to purchase a firearm.
On 17 March 2010, the jury convicted defendant of "knowingly violating a valid protective order . . . on 30 November 2007 [by] possessing a firearm at a time when the protective order was still in effect." The trial court issued a suspended sentence of four to five months imprisonment and placed defendant on supervised probation for 18 months. Defendant appealed his conviction in open court.
Discussion I.
Defendant argues that the trial court erred in denying his motion to dismiss the charge of possession of a firearm in violation of a DVPO because the State failed to present substantial evidence that defendant constructively possessed the firearms located in his residence. We disagree.
When ruling on a defendant's motion to dismiss, the evidence must be considered in the light most favorable to the State. The State is entitled to every reasonable inference which can be drawn from the evidence presented. If there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit is denied.
State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989) (internal citations and quotation marks omitted).
The State sought to convict defendant of unlawfully possessing the firearms found in his residence under the theory of constructive possession. This Court has held:
When a defendant does not actually possess a gun, the State is required to prove that the defendant constructively possessed the gun. The issues of constructive possession are: (1) whether defendant was aware of the gun's presence; (2) whether he had the power and intent to control its disposition or use; and (3) whether defendant had exclusive possession of the location where the gun was found.
State v. McNeil, ___ N.C. App. ___, ___, 707 S.E.2d 674, 682 (2011). Our Supreme Court has held that "[o]ur cases addressing constructive possession have tended to turn on the specific facts presented. . . . [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." State v. Miller, 363 N.C. 96, 99-100, 678 S.E.2d 592, 594-95 (2009). If firearms are "`found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.'" Davis, 325 N.C. at 697, 386 S.E.2d at 190 (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)). However, if an accused does not have exclusive possession of the location where the firearms are found, then "the State must show other incriminating circumstances before constructive possession may be inferred." Id.
Defendant in this case strictly argues that he did not have exclusive possession of the premises where the firearms were found because his brother owned the house and had access to it, and, therefore, the State was required to show additional incriminating circumstances. Defendant claims that the evidence merely "showed that [defendant] made the poor decision to stay temporarily in a place where firearms were stored[,]" and that there were no additional incriminating circumstances that could raise an inference of constructive possession. With regard to ownership of the premises, this Court has held:
Though ownership or lease of a premises in which contraband is found can give rise to the inference of constructive possession, "the State is not required to establish that a defendant owned or leased the premises on which contraband is found in order to prove control of such premises by defendant."
State v. Young, 190 N.C. App. 458, 461, 660 S.E.2d 574, 577 (2008) (quoting State v. Tate, 105 N.C. App. 175, 179, 412 S.E.2d 368, 371 (1992)). In other words, ownership of the premises is a factor to consider, but it is not essential to establishing control over the premises. Id.
As to defendant's argument regarding exclusive possession, it is clear in this case that defendant exclusively possessed the premises as he was the sole inhabitant of the residence and was the only individual present at the time the firearms were discovered by the police. See Harvey, 281 N.C. at 13, 187 S.E.2d at 714 (holding that there was sufficient evidence to support an inference that defendant constructively possessed contraband where defendant was seen alone in his home with the contraband three or four feet from him). Although defendant's brother had access to the house and visited on occasion, the evidence suggests that defendant had exclusive dominion and control of the premises where the firearms were found on 30 November 2007 — a fact that in and of itself gives rise to an inference of constructive possession. Id.
Assuming, arguendo, that the State was required to show additional incriminating circumstances, the evidence established that defendant was found in close proximity to the two firearms located behind the front door, he was aware of their presence, he knew where the third firearm was stored, and he had been living in the house with the firearms for approximately nine months. See State v. Turner, 168 N.C. App. 152, 156, 607 S.E.2d 19, 22-23 (2005) (holding evidence of constructive possession sufficient where defendant was in "close proximity to the [contraband] and conduct indicating an awareness of the [contraband]"). Moreover, defendant showed an obvious desire to possess a firearm in violation of the DVPO. Defendant signed the DVPO and relinquished his weapons to police, which tends to show that defendant was aware that he was not permitted to possess a firearm; nevertheless, he attempted to purchase a new firearm in Ashe County soon thereafter. In sum, we hold that there was sufficient evidence of constructive possession and the trial court did not err in denying defendant's motion to dismiss.
II.
Next, defendant argues that the trial court erred in its instructions to the jury regarding constructive possession. Specifically, defendant argues that the trial court was required to instruct the jury that it "had to find other circumstances besides the firearm's location. . . ." Defendant did not object to the trial court's instructions; consequently, our review is limited to plain error. A trial court commits plain error when its instructions "amount to a miscarriage of justice or . . . result[] in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).
"The preferred method of instructing the jury is the use of the approved guidelines of the North Carolina Pattern Jury Instructions." State v. Solomon, 117 N.C. App. 701, 706, 453 S.E.2d 201, 205, disc. review denied, 340 N.C. 117, 456 S.E.2d 325-26 (1995). Here, the trial court instructed the jury in accordance with N.C.P.I.-Criminal 104.41 as follows:
A person has actual possession of a firearm if the person has it on his person, is aware of its presence, and either alone or together with others has both the power and intent to control its disposition or use.
A person has constructive possession of a firearm if the person does not have it on his person but is aware of its presence and has, either alone or together with others, both the power and intent to control its disposition or use. A person's awareness of the presence of a 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. I will define for you intent later in these instructions.
If you find beyond a reasonable doubt that a firearm was found in close physical proximity to the defendant that would be a circumstance from which, together with other circumstances, you may infer that the defendant was aware of the presence of the firearm and had the power and intent to control its disposition or use; however, the defendant's physical proximity, if any, to the firearm does not by itself permit an inference that the defendant was aware of its presence or had the power or intent to control its disposition or use. Such an inference may be drawn only from this and other circumstances which you find beyond a reasonable doubt.
If you find beyond a reasonable doubt that a firearm was found in a certain house and that the defendant exercised control over that house, whether or not the defendant owned the house, this would be a circumstance from which you may infer that the defendant was aware of the presence of the firearm and had the power and intent to control its disposition or use.
The evidence in this case supports the trial court's instructions. The jury was properly instructed that if it determined that defendant was merely in the presence of the firearms, then additional evidence was required to establish constructive possession. See State v. James, 81 N.C. App. 91, 86, 344 S.E.2d 77, 81 (1986) ("[M]ere presence in a room where [contraband is] located does not itself support an inference of constructive possession."). If, however, defendant exercised control over the house in which the firearms were located, the jury could infer, without more, that defendant constructively possessed the firearms. Davis, 325 N.C. at 697, 386 S.E.2d at 190.
In sum, "[t]he instructions given in this case regarding constructive possession of a controlled substance accurately stated the law and clearly placed the burden on the State to prove beyond a reasonable doubt that defendant possessed the [firearms]." Solomon, 117 N.C. App. at 706-07, 453 S.E.2d at 205. We hold that the trial court's instructions to the jury were not erroneous.
Conclusion
We hold that the trial court in this case did not err in denying defendant's motion to dismiss the charge against him as there was substantial evidence that defendant constructively possessed the firearms. We further hold that the trial court's instructions to the jury was free from error as it accurately stated the law pertaining to constructive possession.
No Error.
Judges BRYANT and MCCULLOUGH concur.
Report per Rule 30(e).