State v. Streater
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA13-338 NORTH CAROLINA COURT OF APPEALS Filed: 19 November 2013 STATE OF NORTH CAROLINA v. Forsyth County Nos. 12CRS006413 12CRS054266 BRANDON DEMORCOS STREATER, Defendant. Appeal by defendant from judgment entered on or about 2 October 2012 by Judge Lindsay R. Davis Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 5 November 2013. Attorney General Roy A. Cooper, III, by Assistant Attorney General Janelle Varley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for defendant-appellant. STROUD, Judge. Defendant appeals from a judgment entered upon his conviction for possession of a firearm by a felon and attaining habitual felon status. The factual State s evidence background. girlfriend, has We find no error. an at trial Kendra establishes Shuford, eighteen-month-old the following defendant s son with former defendant -2Defendant, who lived in Thomasville, was visiting his son at Ms. Shuford s home on Salem Pointe Lane in Winston-Salem on 30 April 2012. Defendant and Ms. Shuford got into an argument that evening, and Ms. Shuford told defendant that she would take him home in the morning, as defendant did not have his own transportation. The next morning, Ms. Shuford left defendant home alone while she took her children to school and took her mother to a doctor s appointment. Shuford discovered When she returned around 10:30 a.m., Ms. that defendant had gone through her belongings and discovered men s clothing. Ms. Shuford admitted that the clothing belonged to another man. Defendant yelled and cursed at her and spit in her face. He also pulled out Ms. Shuford s hair, pushed her to the ground, and pulled a gun out of his pocket. He waived the gun around and said [c]all your boyfriend up now, call him up now. He then pointed the gun at Ms. Shuford and pulled the trigger. She heard it click, and he spun the revolver around. Defendant then took Ms. Shuford s keys and cell phone, went outside, and sat in her car. After about thirty minutes, Ms. Shuford went to the car and told defendant she would take him home. As a ruse to get her phone back, Ms. Shuford told defendant she needed to call her -3mother. Instead, she dialed 9-1-1 and told the operator that her ex-boyfriend was at her house with a gun. back into the house and into the bathroom. said, [t]hey won t find this Shuford s car and drove off. gun. He Defendant went When he came out, he then got into Ms. While she was still on the phone, Ms. Shuford saw a police officer stop defendant. Ms. Shuford met with Officer Rivera and told him what happened. Ms. Shuford described the gun as an old gun, looked like something out of a country-western movie, and it was gold, kind of like a peachy color. Officer Rivera, one of the responding officers, testified that he was approximately one mile away when he received the call regarding defendant and stopped defendant approximately one minute later on Salem Pointe Lane. in around 3:45 to 4:00 p.m. on Salem Pointe Lane except He stated that the call came He did not see any other vehicles Ms. Shuford s white Kia. When Officer Rivera approached the vehicle, he noticed that all of the windows were down, that no one else was in the car, and that defendant was driving. The officers did not find any weapons on defendant s person or in the vehicle. When asked if he had a gun, defendant responded no and stated that Ms. Shuford had guns. -4Officer Canup also responded, and he found a fully-loaded gun in a grassy field located approximately 20 to 30 feet from the passenger side of the vehicle. Officer Rivera, however, testified that the gun was 10 to 15 feet away from the car. Officer Rivera described the gun as a silver revolver with a yellow-gold-colored handle[.] The gun was not covered with any dirt or leaves, it did not have grass growing through it, and it did not appear to be in a weathered condition. The officers did not find any fingerprints on the gun; nor did they find gunshot residue on defendant s hands. Defendant unauthorized was use of revoked, possession habitual felon trial court revoked. A indicted a motor of a status. dismissed jury for assault vehicle, firearm Following the found charge defendant by by pointing driving a felon, while and a gun, license attaining the State s evidence, of driving while not guilty of the license assault by pointing a gun and unauthorized use of a motor vehicle. The jury, however, found defendant guilty of possession of a firearm by a felon, and defendant subsequently entered a plea of guilty to attaining habitual felon status. The trial court sentenced defendant to a term of 77 to 105 months imprisonment. timely entered notice of appeal. Defendant -5Defendant argues that the trial court erred in instructing the jury on constructive possession of a firearm. As defendant failed he to object to the instruction at trial, did not preserve any such error, and this Court s review is limited to whether the trial court s instruction amounted to plain error. See N.C.R. App. P. 10(a)(4). Plain error arises when the error is so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.] 660, 300 S.E.2d 375, 378 (1983) State v. Odom, 307 N.C. 655, (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L.Ed. 2d. 513 (1982)). Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result. State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). A trial court must instruct the jury on the law arising on the evidence. State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 28, disc. review denied, 364 N.C. 327, 700 S.E.2d 926 (2010). [A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial. State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L.Ed. 2d 1153 (1974). -6 Where jury instructions are given without supporting evidence, a new trial is required. 457 S.E.2d 716, 721 State v. Porter, 340 N.C. 320, 331, (1995). Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo. Barron, 202 N.C. App. at 694, 690 S.E.2d at 29. Actual possession requires that a party have physical or personal custody of the item. State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). When the defendant does not have actual possession, but has the power and intent to control the use or disposition of the substance, he is said to have constructive possession. 382, 391, 588 S.E.2d 497, State v. Baldwin, 161 N.C. App. 504-05 (2003). [W]here the defendant did not have exclusive control of the location where contraband is found, constructive possession of the contraband materials may circumstances. not be inferred without other incriminating State v. Perry, ___ N.C. App. ___, ___, 731 S.E.2d 714, 718 (2012) (quoting State v. Clark, 159 N.C. App. 520, 525, 583 S.E.2d 680, 683 (2003)), disc. review denied, ___ N.C. ___, 736 S.E.2d 188 (2013). At trial, the court instructed the jury on both actual and constructive possession. Defendant contends that the evidence does not support an instruction on -7constructive possession because defendant did not have exclusive control of the field in which the gun was found and the State presented insufficient evidence of incriminating circumstances. We are not on instruction persuaded. actual While the possession, evidence it instruction on constructive possession. also supports supports an an The evidence shows that defendant stated [t]hey won t find this gun before getting into Ms. Shuford s car and leaving. The police arrived minutes later, and found the gun 10 to 30 feet from the vehicle. The gun did not have any dirt or leaves on it, and it was not weathered. Defendant was the only person in Ms. Shuford s car, all of the windows were down, and it was the only vehicle on the street. Additionally, the gun found in the field roughly matched the description Ms. Shuford gave to Officer Rivera. find the foregoing incriminating evidence circumstances sufficient such that to an constitute We other instruction on constructive possession was supported by the evidence. Defendant also points out some of the contradictions and discrepancies in the evidence, and appears to argue that they too undercut possession. the validity of an instruction on constructive For instance, no one saw defendant throw the gun, and there were recent break-ins in the area. Additionally, the -8gun found in the field was fully loaded, but Ms. Shuford testified that defendant pulled the trigger and heard a click. Again, we are not persuaded. Any contradictions or discrepancies in the evidence were for the jury to resolve. Accordingly, we find no plain error in the trial instruction to the jury on constructive possession. NO ERROR. Judges CALABRIA and STEELMAN concur. Report per Rule 30(e). court s
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