Opinion
No. COA11–1202.
2012-05-1
STATE of North Carolina v. Latrail Cinquince MUNN.
Attorney General Roy Cooper, by Assistant Attorney General Susannah P. Holloway, for the State. McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and Kirby H. Smith, III, for Defendant–Appellant.
Appeal by defendant from judgment entered 20 May 2011 by Judge Jack W. Jenkins in Onslow County Superior Court. [R72] Heard in the Court of Appeals 21 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Susannah P. Holloway, for the State. McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and Kirby H. Smith, III, for Defendant–Appellant.
ERVIN, Judge.
Defendant Latrail Cinquince Munn appeals from a judgment sentencing him to thirteen to sixteen months imprisonment based upon his conviction for possession of a firearm by a convicted felon. [R72] On appeal, Defendant contends that the trial court erred by (1) admitting evidence tending to show that the firearm Defendant allegedly possessed was utilized in connection with the murder of William Palmer; (2) denying his motion to dismiss; and (3) instructing the jury concerning the doctrine of constructive possession. [DBi] After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant received a fair trial that was free from prejudicial error and is not entitled to relief from the trial court's judgment on appeal.
I. Factual Background
A. Substantive Facts
In January of 2008, Bertram Kirton reported to the Jacksonville Police Department that a Ruger .44 magnum handgun was missing from his home, which was located in the Cardinal Village neighborhood. [TI 39–45; 53 ln 7–8] A report maintained by the Jacksonville Police Department described the missing firearm as a “black-in-color Ruger ... Red Hawk ... [with a] seven-inch barrel.” [T55 ln 5–11] At the time that the handgun disappeared, Mr. Kirton's daughter, Michelle Kirton, was living in the family home and dating Lawrence Dowsing. [T46 ln 7–18]
On 1 March 2008, officers of the Jacksonville Police Department found the body of William Palmer inside a truck while responding to a call from the Cardinal Village neighborhood. [T62–63; T68 ln 9–23; 69–70; 115 ln 12–18] Mr. Palmer had sustained “[a] very traumatic entrance wound caused by a firearm, or projectile, with a great deal of velocity and power,” to his chest. [T79 ln 2–3] Investigating officers observed a hole in the driver's side arm rest in Mr. Palmer's truck and recovered a projectile from the driver's side door of that vehicle. [T75–76] The projectile recovered from Mr. Palmer's truck had been fired from a .44 magnum firearm, with “[t]he most probable weapon [being] a Ruger Red Hawk.” [T125 ln 8–17]
Mr. Dowsing was ultimately convicted of the second degree murder of Mr. Palmer, robbery with a dangerous weapon, and possession of a firearm by a convicted felon. State v. Dowsing, ––– N.C.App. ––––, 710 S.E.2d 709, 2011 WL 704869, *1–3 (2011) (unpublished).
Detective David Kaderbek of the Jacksonville Police Department determined that a call had been made to Mr. Palmer's cellular telephone at 12:07 a.m. on 1 March 2008 from a phone number registered to Mr. Dowsing. [T112–14; T 123 ln 16–18] In addition, Detective Kaderbek ascertained that, shortly after receiving the call from Mr. Dowsing, Mr. Palmer called a telephone number registered to Michelle Kirton. [T124 ln 4–8] As a result of his efforts to follow up on this information, Detective Kaderbek learned about Mr. Kirton's missing firearm report. [T124 ln 14–17]
Officers of the Jacksonville Police Department eventually learned that Mr. Dowsing and Defendant had attempted to sell a large caliber handgun to Willie Anderson. According to Mr. Anderson, Defendant and Mr. Dowsing had come to his house on 28 February 2008 and tried to sell him a .44 caliber revolver. [T196] In addition, Mr. Anderson had seen Defendant in possession of the handgun on 1 March 2008. [T209] Mr. Anderson stated that the photograph of a .44 caliber Ruger Red Hawk firearm shown to him at Defendant's trial looked like the handgun that he had seen on 28 February 2008 and 1 March 2008. [TI 128 ln 17–22; TII 208–9; R14 StEx 56] Mr. Anderson was willing to attempt to purchase the handgun from Defendant and Mr. Dowsing at investigating officers' request. [T127 ln 1–10; T190 ln 4–5]
On 4 March 2008, investigating officers fitted Mr. Anderson with a recording device and provided him with money to use in purchasing the handgun from Defendant. [TII 203 ln 11–20] After Defendant told Mr. Anderson that he had given the handgun back to Mr. Dowsing, Mr. Anderson asked Defendant to retrieve the handgun and indicated that he would check back with Defendant at a later time. [T202 ln 15–16; 204 ln 20–23; 205 ln 13–16; 205 ln 20–23] At their subsequent meeting, Defendant gave Mr. Anderson a bullet, which Mr. Anderson turned over to investigating officers. [T206 ln 18–20; 207 ln 8–16] The bullet was an unfired “Winchester caliber .44 Remington magnum cartridge.” [T162–64; 163 ln 1] The handgun that Defendant allegedly possessed was never recovered. [TI 127 ln 11–12]
B. Procedural History
On 6 March 2008, a warrant for arrest was issued charging Defendant with possession of a firearm by a felon. [R3] On 8 September 2009, the Onslow County grand jury returned a bill of indictment charging Defendant with possession of a firearm by a convicted felon. [R5] On 13 May 2011, Defendant filed a motion in limine in which he sought the entry of an order precluding the admission of any evidence concerning the murder of Mr. Palmer. [R7]
The charge against Defendant came on for trial before the trial court and a jury at the 16 May 2011 criminal session of the Onslow County Superior Court. [TI 1] Prior to trial, the trial court denied “[D]efendant's general motion to suppress evidence related to the murder in [Mr. Dowsing's] case, with the caveat that ... as [the trial] proceed[s] and as particular items of evidence are offered, the court will reserve the right to consider that further.” [T32 ln 1–6] On 20 May 2011, the jury returned a verdict finding Defendant guilty as charged. [R69] At the ensuing sentencing hearing, the trial court determined that Defendant should be sentenced as a Level III offender [R70] and entered a judgment providing that Defendant should be imprisoned for thirteen to sixteen months. [R72] Defendant noted an appeal to this Court from the trial court's judgment. [TII 320 ln 10–21]
II. Legal Analysis
A. Admission of Evidence Concerning Mr. Palmer's Murder
In his first challenge to the trial court's judgment, Defendant contends that the trial court erred by refusing to preclude the State from eliciting evidence concerning Mr. Palmer's murder. [DB9] More specifically, Defendant argues that “allowing the State to present evidence that the firearm [Defendant] was alleged to have possessed was used in a murder improperly suggested to the jury that [Defendant] might be more dangerous and more culpable than they had feared or realized,” so that the admission of the challenged evidence violated N.C. Gen.Stat. § 8C–1, Rules 403 and 404(b), and Defendant's right to a fair trial as guaranteed by the federal and state constitutions. [DB12] Defendant's argument lacks merit.
Defendant argues for the first time on appeal that the admission of evidence relating to Mr. Palmer's murder violated his federal and state constitutional rights. “Constitutional issues, which are not raised and ruled upon at trial, will not be considered for the first time on appeal.” State v. Ellis, 205 N.C.App. 650, 654, 696 S.E.2d 536, 539 (2010) (citing State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2011)). As a result, we will refrain from reviewing Defendant's constitutional argument.
As an initial matter, the State contends that Defendant's challenge to the admission of evidence relating to the murder of Mr. Palmer was not properly preserved for appellate review given that Defendant failed to consistently object to the admission of the evidence in question. State v. Reaves, 196 N.C.App. 683, 686–87, 676 S.E.2d 74, 77 (recognizing that “[a] defendant must ‘object when the evidence that was the subject of the motion in limine [is] offered at trial ...’ “ in order to preserve his challenge to the admissibility of that evidence for purposes of appellate review) (quoting State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam)), disc. review denied,363 N .C. 587, 683 S.E.2d 705 (2009). At trial, in addition to objecting at the time that the subject of Mr. Palmer's murder originally came up, Defendant objected to the admission of maps depicting the location at which Mr. Palmer's truck was found [TI 71 ln 5–19] and various photographs of the scene of Mr. Palmer's murder. [TI 80 ln 5–17; 81–90] After the denial of his motion in limine, Defendant reminded the trial court of his continuing obligation to object in order to preserve his challenge to the admission of the disputed evidence for purposes of appellate review, at which point the trial court stated that “we understand [Defendant] ha[s] a blanket objection to all of them.” [T32 ln 17–23] After the State assented to the “blanket” objection, Defendant confirmed that “one objection when we start talking about it, would be sufficient for the court.” [T32–33] At the time that evidence concerning Mr. Palmer's murder was initially proffered before the jury, Defendant stated that he “would like to renew [his] objection [to] the testimony that relates to what we're going to hear.” [TI 65 ln 8–10] As a result, we conclude that Defendant did not waive his right to appellate review of his challenge to the admission of evidence concerning Mr. Palmer's murder. See State v. Early, 194 N.C.App. 594, 601–02 n. 2, 670 S.E.2d 594, 601 n. 2 (2009) (recognizing that a defendant had not waived his right to challenge the admissibility of certain evidence given that “the transcript reveal[ed that] the trial court noted [the] defendant's continuing objection to the evidence at issue at trial”).
At Defendant's trial, several officers testified concerning the circumstances surrounding Mr. Palmer's murder. Detective James Gamel of the Jacksonville Police Department described the scene of Mr. Palmer's murder, the interior and exterior of Mr. Palmer's truck, the recovery of the projectile from the driver's side door, and the nature and extent of Mr. Palmer's gunshot wounds. [T68–78] In addition, maps of the Cardinal Village neighborhood and photographs of the scene of Mr. Palmer's murder and the interior and exterior of Mr. Palmer's truck were admitted into evidence. [T78–90] Although the trial court sustained Defendant's objection to a photograph of Mr. Palmer's gunshot wounds, it admitted several exhibits that had been introduced into evidence at Mr. Dowsing's trial for murdering Mr. Palmer. [T89 ln 12–23; R14–15] Detective Kaderbek described the investigation into Mr. Palmer's murder, including his observations of the murder scene and the gunshot wounds that Mr. Palmer had sustained, the results of his examination of Mr. Palmer's cellular telephone records, and Mr. Anderson's efforts to purchase a handgun from Defendant and Mr. Dowsing. [TI 114–27] Finally, Special Agent Adam Tanner of the State Bureau of Investigation testified concerning the similarities between the projectile recovered from Mr. Palmer's truck door and the .44 caliber bullet that Mr. Anderson provided to the police. [TII 147 ln 10–12; 149–50; 152–53; 157–70] As a result, a substantial amount of information concerning the murder of Mr. Palmer was received into evidence at Defendant's trial.
N.C. Gen.Stat. § 8C–1, Rule 404(b), provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
“Evidence of another offense or prior bad act ‘is admissible so long as it is relevant to show any other fact or issue other than the character of the accused.’ “ State v. Ratliff, 341 N.C. 610, 618, 461 S.E.2d 325, 329–30 (1995) (quoting State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986)). N.C. Gen.Stat. § 8C–1, Rule 404(b) is a rule of inclusion, “ ‘subject to but one exception requiring [the] exclusion [of evidence] if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.’ “ State v. Jeter, 326 N.C. 457, 460, 389 S.E.2d 805, 807 (1990) (quoting State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 55 (1990) (emphasis omitted)).
According to well-established North Carolina law, evidence of “prior bad acts” is admissible for the purpose of delineating the series of events that led to the commission of a particular crime. State v. Agee, 326 N.C. 542, 546–50, 391 S.E.2d 171, 173–76 (1990). Thus, “evidence may be admissible where it is not directly probative of the crime charged if it pertains to the ‘chain of events explaining the context, motive and setup of the crime ... [and is] linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.’ “ State v. Barnes, 345 N.C. 184, 221, 481 S.E.2d 44, 64 (1997) (quoting Agee, 326 N.C. at 548, 391 S.E.2d at 174),cert. denied,523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998). The evidence concerning the investigation of Mr. Palmer's murder described the chain of events leading up to Defendant's commission of the offense with which he had been charged and provided a complete account of the investigation which culminated in Defendant's arrest. In addition, the challenged evidence explained how investigating officers ultimately tied Defendant to the handgun he was charged with unlawfully possessing. Thus, since the challenged testimony formed an “integral and natural part of an account of the crime ...,” 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 (1995), the evidence concerning the murder of Mr. Palmer was not “probative only of [D]efendant's propensity” to engage in criminal conduct. Agee, 326 N.C. at 550, 391 S.E.2d at 176. As a result, the trial court did not violate N.C. Gen.Stat. § 8–C1, Rule 404(b), by allowing the admission of evidence concerning the murder of Mr. Palmer at Defendant's trial.
According to N.C. Gen.Stat. § 8C–1, Rule 403, otherwise relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Since “all evidence offered against a party involves some prejudicial effect, the fact that evidence is prejudicial does not mean that it is necessarily unfairly prejudicial.” State v. Rainey, 198 N.C.App. 427, 433, 680 S.E.2d 760, 766 (citation omitted), appeal dismissed and disc. review denied,363 N.C. 661, 686 S.E.2d 903 (2009). Instead, “[u]nfairly prejudicial evidence is evidence that possesses ‘an undue tendency to suggest a decision on an improper basis, usually an emotional one.’ “ State v. Thibodeaux, 341 N.C. 53, 64, 459 S.E.2d 501, 508 (1995) (quoting State v. Hennis, 323 N.C. 279, 283, 372 S.E.2d 523, 527 (1988)). “Whether to exclude evidence [under N.C. Gen.Stat. § 8C–1, Rule 403] is a decision within the trial court's discretion.” State v. Al–Bayyinah, 359 N.C. 741, 747, 616 S.E.2d 500, 506 (2005) (citation omitted), cert. denied,547 U.S. 1076, 126 S.Ct. 1784, 164 L.Ed.2d 528 (2006). An abuse of discretion occurs when “the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” Hennis, 323 N.C. at 285, 372 S.E.2d at 527 (citing State v. Parker, 315 N.C. 249, 258–59, 337 S.E.2d 497, 502–03 (1985)).
In seeking to persuade us that evidence surrounding the investigation into Mr. Palmer's murder should not have been presented to the jury at his trial, Defendant contends that any probative value which such information might possess was substantially outweighed by the “danger of unfair prejudice, confusion of the issues, [and] misleading the jury” given that Defendant had not been charged with murdering Mr. Palmer. N.C. Gen.Stat. § 8C–1, Rule 403. As we have already indicated, however, evidence relating to the murder of Mr. Palmer had significant probative value given that it helped link Defendant to the firearm that he was charged with possessing. In view of the fact that the challenged evidence shed light on the critical issue which the jury was required to decide in this case, which was whether Defendant possessed the firearm which Mr. Kirton reported as being missing, we are unable to conclude that the probative value of the challenged evidence was substantially outweighed by the risk of unfair prejudice. As a result, we hold that the trial court did not abuse its discretion by allowing the admission of evidence concerning the investigation of Mr. Palmer's murder.
B. Motion to Dismiss
Secondly, Defendant contends that the trial court erred by denying his motion to dismiss the charge against him for insufficiency of the evidence. More specifically, Defendant contends that the State did not present substantial evidence, independent of his extrajudicial statements to Mr. Anderson, tending to show that Defendant unlawfully possessed a firearm. [DB13] Once again, we conclude that Defendant's argument lacks merit.
In order to avoid the dismissal of a pending criminal case for lack of sufficient evidence, the State must present substantial evidence of “(1) each essential element of the offense charged and (2) of defendant's being the perpetrator of the charged offense.” State v. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citation omitted). In reviewing a trial court's decision to deny a defendant's dismissal motion, we examine the record “in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citation omitted), cert. denied,546 U.S. 830, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005). “When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455–56,cert. denied, 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). A trial court's decision to deny a motion to dismiss is subject to de novo review on appeal. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
According to N.C. Gen.Stat. § 14–415.1:
(a) 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.... For the purposes of this section, a firearm is (i) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer. This section does not apply to an antique firearm, as defined in [N.C. Gen.Stat. § ] 14–409.11.
....
(b) Prior convictions which cause disentitlement under this section shall only include:
(1) Felony convictions in North Carolina that occur before, on, or after December 1, 1995;....
As a result, a conviction for felonious possession of a firearm by a convicted felon requires proof that “(1) [the] defendant was previously convicted of a felony; and (2) thereafter possessed a firearm.” State v. Wood, 185 N.C.App. 227, 235, 647 S.E.2d 679, 686,disc. review denied,361 N.C. 703, 655 S.E.2d 402 (2007).
In his brief, Defendant argues that the only evidence tending to show that he possessed a firearm was his own “unsworn extrajudicial statement to [Mr.] Anderson.” [DB14] Although Defendant correctly notes that his unsworn extrajudicial statement to a third party would not support the denial of his dismissal motion absent other corroborating evidence, State v. Smith, 362 N.C. 583, 592, 669 S.E.2d 299, 305 (2008), “a conviction [in a non-capital case] can stand if ‘the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.’ “ Id. at 592, 669 S.E.2d at 306 (quoting State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985)).
A careful review of the record establishes that the State presented sufficient evidence, when viewed in the light most favorable to the State, to establish that Defendant possessed a firearm. Mr. Anderson testified that, on 28 February 2008, “[Defendant] and Mr. Dowsing came to [his] house ... and tried to sell a .44 revolver.” [TII 196 ln 20–21] In addition, Mr. Anderson testified that, on 1 March 2008, he observed Defendant in “exclusive possession” of that firearm. [T209 ln 10–15] In a written statement that was admitted into evidence at trial, Mr. Anderson stated, in pertinent part, that: “[Defendant] told me he had the gun. He walked behind the house, he got a red and black shoe box, walked back to my house and showed me the pistol.” [T214 ln 3–7] Finally, Mr. Anderson testified that a photograph of a .44 caliber Ruger Red Hawk handgun shown to him during the course of his testimony “appear[ed] to be a picture of the same gun I was trying to purchase from [Defendant] and Mr. Dowsing.” [T208 ln 16–17] Although Mr. Anderson admitted that he had previously been charged with trafficking in opiates and that he hoped that his testimony would mitigate his sentence for committing that offense, [TII 211–12] the weight and credibility of a witness' testimony are for the jury, and not this Court, to determine. State v. Moses, 350 N.C. 741, 767, 517 S.E.2d 853, 869 (1999), cert. denied,528 U.S. 1124, 120 S.Ct. 951, 145 L.Ed.2d 826 (2000). Mr. Anderson's testimony, if credited by a jury, would be sufficient, independent of Defendant's extrajudicial statement, to establish that Defendant unlawfully possessed a firearm. As a result, the trial court did not err by denying Defendant's dismissal motion.
The same reasoning defeats Defendant's contention that “[t]he State had no evidence what type of firearm [Defendant] was alleged to have possessed,” since the record, taken as a whole, sufficed to support the State's contention that Defendant possessed the firearm taken from Mr. Kirton and since Defendant's argument that “the State had no evidence of what make, model, or color of firearm [Defendant] was supposed to have possessed” goes to the weight, rather than the sufficiency, of the State's evidence. [DB15]
C. Jury Instruction on Constructive Possession
Finally, Defendant contends that the trial court committed plain error by instructing the jury concerning the theory of constructive possession. [DB16] In essence, Defendant contends that the challenged instruction lacked sufficient evidentiary support. We disagree.
“ ‘Possession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. A person has constructive possession ... when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.’ “ State v. Clark, 159 N.C.App. 520, 525, 583 S.E.2d 680, 683 (2003) (quoting State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998)). At the conclusion of the evidence, the trial court instructed the jury that:
Possession of an article may be either actual or constructive. A person has actual possession of an article if the person has it on the person, is aware of its presence and, acting either alone or together with others, has both the power and intent to control its disposition or use. A person has constructive possession of an article if the person does not have it on the 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 the article 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.
[TII 298 ln 9–21] As a result, the trial court allowed the jury to convict Defendant of felonious possession of a firearm by a convicted felon on the basis of the doctrine of constructive possession in addition to the doctrine of actual possession.
As he candidly acknowledges, Defendant did not object to the challenged constructive possession instruction at trial. For that reason, we must utilize a plain error standard of review in evaluating the validity of Defendant's challenge to this constructive possession instruction. N.C. R.App. P. 10(a)(4). Plain error is “ ‘fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (emphasis omitted), cert. denied,459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)). A defendant is entitled to relief on plain error grounds “only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
“A trial judge should not give instructions which present to the jury possible theories of conviction not supported by the evidence.” State v. Odom, 99 N.C.App. 265, 272, 393 S.E.2d 146, 150 (citations omitted), disc. review denied, 327 N.C. 640, 399 S.E.2d 332 (1990). The doctrine of constructive possession is frequently relevant in situations in which multiple individuals share the possession of contraband. State v. Allen, 279 N.C. 406, 412, 183 S.E.2d 680, 684 (1971). “[J]oint or shared possession exists only upon a showing of some independent and incriminating circumstance, beyond mere association or presence, linking the person(s) to the item.” Alston, 131 N.C.App. at 519, 508 S.E.2d at 318 (citations omitted). The existence of “[c]onstructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the question will be for the jury.” State v. Baublitz, 172 N.C.App. 801, 810, 616 S.E.2d 615, 621 (2005) (quotation marks and citation omitted).
At trial, Mr. Anderson testified that, on 28 February 2008, both Mr. Dowsing, who had the weapon in his physical possession, and Defendant came to Mr. Anderson's house for the purpose of attempting to sell the firearm. According to the information disclosed during the conversation between Mr. Anderson and Defendant on 4 March 2008, Defendant, despite recently having actually possessed the firearm, had given it to Mr. Dowsing. However, Defendant agreed to contact Mr. Dowsing, regain possession of the firearm, and sell the firearm to Mr. Anderson. [T268 ln 4–7; R34 ln 15–17; R35 ln 1–3; R37–38] Finally, Mr. Anderson testified that Defendant was in actual possession of the firearm on 1 March 2008. Thus, the record contains evidence tending to show that Defendant actually possessed the firearm on certain occasions and that he retained the power and intent to control the firearm's disposition on certain other occasions. As a result, the trial court did not err, much less commit plain error, by instructing the jury concerning the doctrine of constructive possession at Defendant's trial.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant's challenges to the trial court's judgment lack merit. As a result, the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).