State v. Bailey

NO. COA13-1326

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Person County
No. 11 CRS 52522
SHAWN RONDEL BAILEY

Appeal by defendant from judgment entered 17 September 2013

by Judge Henry W. Hight, Jr. in Person County Superior Court.

Heard in the Court of Appeals 18 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood, for the State.

Winifred H. Dillon for defendant.

HUNTER, Robert C., Judge.

Defendant Shawn Bailey appeals the judgment entered after a

jury convicted him of possession of a firearm by a convicted

felon. On appeal, defendant argues that the trial court erred

in denying his motion to dismiss for insufficiency of the

evidence.

After careful review, because the State failed to produce

circumstantial evidence that defendant constructively possessed

the firearm, we reverse the order denying his motion to dismiss.
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Background

On 25 November 2011, Deputy Dustin Harris (“Deputy Harris”)

and Deputy Adam Norris (“Deputy Norris”) of the Person County

Sheriff’s office were standing outside the law enforcement

center in Roxboro when they heard multiple, rapidly-fired

gunshots coming from the Harris Gardens Apartments (“the

apartments”). Deputies Harris and Norris responded to the scene

of the gunshots. As Deputy Harris entered the apartment

complex, he saw a dark-colored, four-door sedan leaving. A

female was driving the car, and defendant was in the passenger

seat. The driver was later identified as Sherika Torrain (“Ms.

Torrain”), defendant’s girlfriend. The car was registered to

defendant. Deputy Harris turned his car around, followed the

sedan briefly, and then stopped it. Deputy Harris asked if

there were any weapons in the car; according to Deputy Harris,

defendant replied “yes” and told him that there was a gun on the

floor in the back. Deputy Norris saw the weapon, which was

later identified as an AK-47 assault rifle (“the rifle”). The

rifle was warm and had been recently fired, with the magazine

still in the gun. Later, investigators determined that the

rifle was registered to Ms. Torrain.
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Corporal Pam Ferstenau (“Corp. Ferstenau”) of the Roxboro

Police Department also responded to the scene. When she

arrived, she saw Deputy Harris and Deputy Norris with the sedan.

Corp. Ferstenau took custody of the rifle and an empty magazine

found on the center console of the car. Sergeant Will Dunkley

(“Sgt. Dunkley”), a patrol supervisor with the Roxboro Police

Department, also responded to the scene. Sgt. Dunkley, along

with another officer, searched the road near the apartments for

evidence and found a spent shell case. Sgt. Dunkley testified

that the casing is known as an “SKS round or AK round” which

could be used in either an SKS or AK weapon.

During an interview at the Roxboro Police Department,

defendant told police that he and his girlfriend were at the

apartment complex when they heard shots. Defendant claimed that

they left after the shots, but he denied possessing or firing

the rifle. A gunshot residue test taken of defendant’s hands

was inconclusive.

Defendant testified in his own defense at trial. He

claimed that he had spent the day at the apartment complex.

After the shooting, he called Ms. Torrain to pick him up. She

arrived, and defendant got in the passenger seat. Because he

helped her buy the car, defendant admitted it was titled in his
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name; however, he contended that she was the one who used and

controlled the vehicle.

According to defendant, after Deputy Harris stopped the car

and asked if there were any weapons in it, Ms. Torrain said

“yes.” Defendant denied knowing there was a gun in the car and

denied telling Deputy Harris where it was located.

Defendant was indicted for possession of a firearm by a

felon (“possession of a firearm”), going armed to the terror of

the people, and discharging a firearm within city limits.

Defendant’s trial began 16 September 2013. The jury convicted

defendant of possession of a firearm and acquitted him on the

other charges. The trial court sentenced defendant to a minimum

term of twelve months to a maximum term of fifteen months

imprisonment. Defendant timely appealed.

Argument

Defendant’s sole argument on appeal is that the trial court

erred in denying his motion to dismiss the possession of a

firearm charge for insufficiency of the evidence. Specifically,

defendant contends that the State failed to present sufficient

incriminating evidence that defendant constructively possessed

the firearm. We agree.
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“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 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 defendant’s

being the perpetrator of such offense. If so, the motion is

properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000) (internal quotation marks omitted). “In making its

determination, the trial court must consider all evidence

admitted, whether competent or incompetent, 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), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

Here, defendant was charged with possession of a firearm by

a felon in violation of N.C. Gen. Stat. § 14-415.1. Pursuant to

section 14-415.1(a) (2013), it is “unlawful for any person who

has been convicted of a felony to purchase, own, possess, or

have in his custody, care, or control any firearm[.]” Defendant

does not challenge his status as a convicted felon; therefore,
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the only element of the offense we must consider on appeal is

possession.

With regard to possession, our Supreme Court has noted

that:

In a prosecution for possession of
contraband materials, the prosecution is not
required to prove actual physical possession
of the materials. Proof of nonexclusive,
constructive possession is sufficient.
Constructive possession exists when the
defendant, while not having actual
possession, has the intent and capability to
maintain control and dominion over the
narcotics. Where such materials 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. However, unless the person has
exclusive possession of the place where the
narcotics are found, the State must show
other incriminating circumstances before
constructive possession may be inferred.

State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71

(2001) (internal citations and quotation marks omitted).

Whether constructive possession exists is based on the totality

of the circumstances. State v. Butler, 147 N.C. App. 1, 11, 556

S.E.2d 304, 311 (2001).

In this case, it is undisputed that defendant did not

actually possess the rifle nor was he the only occupant in the

car where it was found. Therefore, he did not have “exclusive
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possession” of the car, Matias, 354 N.C. at 552, 656 S.E.2d at

270, and the mere fact that defendant was in the car where the

firearm was found does not, by itself, establish constructive

possession, State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d

193, 194 (1976). Accordingly, the State was required to show

“other incriminating circumstances” linking defendant to the

rifle. Matias, 354 N.C. at 552, 556 S.E.2d at 271.

A review of decisions by this Court establishes that when

evidence presented definitively links a defendant to a weapon,

we have found that the circumstantial evidence of constructive

possession was sufficient to withstand a defendant’s motion to

dismiss. For example, in State v. Glasco, 160 N.C. App. 150,

157, 585 S.E.2d 257, 262, this Court held that the trial court’s

denial of the defendant’s motion to dismiss was proper where the

evidence “tended to show” that the defendant had “discharged a

gun.” Specifically, the evidence showed that: (1) the defendant

was seen jumping over a fence of a yard near the shooting; (2)

the gun was recovered in that same yard; (3) the defendant was

found carrying a bag with gunshot residue on it; and (4) the

garbage bag had holes in it consistent with a firearm being

fired inside the bag. Id.
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Similarly, in State v. Mitchell, __ N.C. App. __, __, 735

S.E.2d 438, 440 (2012), appeal dismissed, __ N.C. __, 740 S.E.2d

466 (2013), police stopped the defendant, who was driving a

rental car, for speeding. The defendant’s girlfriend, Ms.

Harris, was a passenger in the car. Id. The defendant

“indicated” that there was a gun in the glove compartment. Id.

Police found the gun inside Ms. Harris’s purse which was being

kept in the glove compartment. Id. Although the defendant

denied telling the police about the gun, this Court found that

the circumstances were sufficient to establish the defendant's

constructive possession of the gun because the defendant was

driving the vehicle—thus, he “controlled” it—and he was “aware”

of the gun’s presence in the glove compartment. Id. at ___, 735

S.E.2d at 443.

In contrast, however, this Court has found the evidence

insufficient to go to the jury when there is no link between the

defendant and the firearm besides mere presence. For example,

in State v. Alston, 131 N.C. App. 514, 515, 508 S.E.2d 315, 316

(1998), the defendant was a passenger in a car driven by his

wife. A handgun was found on the console of the automobile,

with the defendant and his wife having equal access to it. Id.

The handgun was registered to his wife, and the car was
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registered to the defendant’s brother. Id. at 516, 508 S.E.2d

at 317. Although a child in the car told police that “Daddy’s

got a gun[,]” this evidence was not admitted for the truth of

the matter asserted, so the trial court could not consider it as

substantive proof of possession. Id. Because the evidence

showed no more than mere presence, this Court held that there

was insufficient evidence to support an inference of possession.

Id. at 519, 508 S.E.2d at 319.

We find the facts of this case closer to those of Alston

than Glasco or Mitchell. Like Alston, the rifle was registered

to Ms. Torrain, defendant’s girlfriend, who was driving the car

when the rifle was found. Defendant was a passenger in the

vehicle, not the driver. Moreover, the rifle was found in a

place where Ms. Torrain and defendant had equal access. In

addition, unlike Glasco, there was no physical evidence tying

defendant to the rifle. Specifically, defendant’s fingerprints

were not found on the rifle, the magazine on the console, or the

spent casing on the road which may have come from an AK firearm.

Although the gun was warm and appeared to have been recently

fired, there was no evidence that defendant had actually

discharged the rifle because the gunshot residue test was

inconclusive. Although it is undisputed that the sedan was
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registered to defendant, he was not driving it at the time.

Therefore, despite having legal ownership of the vehicle,

defendant exercised no control over the car at the time the

rifle was found.

Finally, although defendant allegedly admitted he knew that

the rifle was in the car to Deputy Harris, awareness of the

weapon is not enough to establish constructive possession. In

Mitchell, __ N.C. App. __, 735 S.E.2d at 443-43, awareness was

one of the factors the Court noted; however, its conclusion that

there was sufficient incriminating evidence to submit the issue

to the jury was predicated on both the defendant’s awareness of

the gun and the fact that he was driving the vehicle, noting

that because “[a] driver generally has power to control the

vehicle he is driving[,]” the defendant had the “power to

control” the vehicle. Unlike Mitchell, defendant was not

driving and, thus, not “controlling” the vehicle where the rifle

was found. Therefore, defendant’s knowledge or awareness of the

rifle in and of itself did not constitute sufficient

incriminating evidence to submit the issue to the jury.

While the State argues that the fact that the rifle was

registered to defendant’s girlfriend constitutes substantial

evidence of constructive possession, the Alston Court
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specifically rejected a similar argument, noting “we are not

persuaded that the purchase and ownership of the handgun by

[the] [d]efendant’s wife is sufficient other incriminating

evidence linking [the] [d]efendant to the handgun.” Alston, 131

at 519, 508 S.E.2d at 319.

In summary, the only evidence linking defendant to the

rifle was his presence in the vehicle and his knowledge that the

gun was in the backseat. Consequently, the State failed to

present sufficient “other incriminating circumstances,” Matias,

354 N.C. at 552, 556 S.E.2d at 271, from which the jury could

infer constructive possession. Accordingly, we reverse the

trial court’s order denying his motion to dismiss for

insufficiency of the evidence.

Conclusion

Because the State failed to present substantial evidence of

constructive possession, we reverse the trial court’s order

denying defendant’s motion to dismiss the charge of possession

of a firearm by a felon.

REVERSED.

Judges BRYANT and STEELMAN concur.