Opinion
No. COA11–1298.
2012-04-17
STATE of North Carolina v. Cortezs Lamar ROGERS, Defendant.
Roy Cooper, Attorney General, by Allison A. Angell, Assistant Attorney General, for the State. Reece & Reece, by Michael J. Reece, for defendant-appellant.
Appeal by defendant from judgment entered 16 June 2011 by Judge Nathaniel J. Poovey in Catawba County Superior Court. Heard in the Court of Appeals 9 April 2012. Roy Cooper, Attorney General, by Allison A. Angell, Assistant Attorney General, for the State. Reece & Reece, by Michael J. Reece, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from a judgment entered after a jury found him guilty of possession of a firearm by a felon and possession of less than one-half ounce of marijuana. We find no error.
On 1 August 2010, Officer Justin Levey of the Hickory Police Department was on patrol when he saw a Saturn vehicle with a rear license plate bracket covering up the name of the state of registration. Officer Levey activated his blue lights and stopped the vehicle. As he approached the vehicle, he observed there were two occupants inside; a woman in the driver's seat and defendant in the passenger seat. Officer Levey observed “green leafy substance seeds and stems” on defendant's shirt and recognized them as marijuana. Officer Levey asked defendant why he had marijuana on his shirt and defendant admitted he had been smoking marijuana earlier that day. Officer Levey called for a backup unit, and when the second officer arrived, they searched the driver and defendant. There was nothing illegal found on either the driver or defendant. The other officer searched the vehicle and found a gun under the passenger seat. Both defendant and the driver denied knowing anything about the gun.
_________________________
Defendant argues the trial court erred in denying his motion to dismiss the charge of possession of a firearm by a felon where the evidence only raised a suspicion as to his guilt and was insufficient to sustain a conviction.
“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. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “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).
“It shall be 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 or any weapon of mass death and destruction as defined in G.S. 14–288.8(c).” N.C. Gen.Stat. § 14–415.1(a) (2011). “Possession of any item may be actual or constructive.” State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998). “A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.” Id. However, “where possession of the premises is nonexclusive, constructive possession of the contraband materials may not be inferred without other incriminating circumstances.” State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984). “[C]onstructive possession depends on the totality of circumstances in each case. No single factor controls, but ordinarily the question will be for the jury.” State v. James, 81 N.C.App. 91, 93, 344 S.E.2d 77, 79 (1986).
In this case, defendant and the driver were the only people in the vehicle. Officer Levey testified that as he approached the vehicle he observed the passenger, identified as defendant, shifting around. Defendant appeared to place something on the back seat or on the back floorboard. The gun was found on the passenger side of the vehicle, underneath the seat. Defendant also appeared nervous when questioned by Officer Levey. We conclude, viewed in the light most favorable to the State, the evidence was sufficient to raise a jury question regarding defendant's possession of the gun. Cf. Alston, 131 N.C.App. at 519, 508 S.E.2d at 319 (holding that there was insufficient other incriminating evidence linking defendant passenger to a handgun, purchased and owned by driver wife, which was found in the center console of his wife's car). The trial court, therefore, properly denied defendant's motion to dismiss and submitted the charge of possession of a firearm by a felon to the jury.
No error. Judges STEELMAN and THIGPEN concur.
Report per Rule 30(e).