821 S.E.2d 407 (N.C. 2018), 142PA17, State v. Malachi

Docket Nº:142PA17
Citation:821 S.E.2d 407
Opinion Judge:ERVIN, Justice.
Party Name:STATE of North Carolina v. Terance Germaine MALACHI
Attorney:Joshua H. Stein, Attorney General, by John R. Green, Jr., Special Deputy Attorney General, for the State-appellant. Glenn Gerding, Appellate Defender, by Aaron Thomas Johnson, Assistant Appellate Defender, for defendant-appellee.
Judge Panel:MORGAN, Justice dissenting.
Case Date:December 07, 2018
Court:Supreme Court of North Carolina

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821 S.E.2d 407 (N.C. 2018)

STATE of North Carolina


Terance Germaine MALACHI

No. 142PA17

Supreme Court of North Carolina

December 7, 2018

Heard in the Supreme Court on 29 August 2018.

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[Copyrighted Material Omitted]

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On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 799 S.E.2d 645 (2017), finding prejudicial error in a judgment entered on 28 January 2016 by Judge Yvonne Mims Evans in Superior Court, Mecklenburg County, vacating defendant’s convictions, and granting defendant a new trial.

Joshua H. Stein, Attorney General, by John R. Green, Jr., Special Deputy Attorney General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Aaron Thomas Johnson, Assistant Appellate Defender, for defendant-appellee.


ERVIN, Justice.

The issue before the Court in this case is whether the Court of Appeals erred by vacating the judgment entered by the trial court based upon defendant’s convictions for possession of a firearm by a felon and having attained habitual felon status on the grounds that the trial court had erroneously instructed the jury that it could convict defendant based upon a constructive possession theory that lacked sufficient evidentiary support. After careful consideration of the record in light of the applicable law, we reverse the decision of the Court of Appeals and remand this case to that court for consideration of defendant’s remaining challenges to the trial court’s judgment.

Shortly after midnight on 14 August 2014, the Charlotte-Mecklenburg Police Department received an anonymous call from a person who stated that he had just seen an African-American male wearing a red shirt and black pants insert a handgun into his pants while in the parking lot of Walker’s Express, a convenience store that was located at 3416 Freedom Drive. Upon arriving at Walker’s Express approximately three minutes later, Officers Ethan Clark and Jason Van Aken of the Charlotte-Mecklenburg Police Department saw approximately six to eight people standing in the parking lot, including a man later identified as defendant, who was the only person present who

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matched the description provided by the caller.

As Officer Clark pulled his patrol vehicle into the parking lot, defendant looked directly at the officer, "squared to [Officer Clark], and then immediately looked away towards the ground, blading his body."1 Upon making this observation, Officer Clark and Officer Van Aken grabbed defendant’s arms and walked him out of the group with which he had been standing. During that process, defendant "kept moving and tugging" and "was very squirmy." As the officers frisked and handcuffed defendant, Officer Van Aken removed a revolver from the waistband on the right side of defendant’s pants. Officer Kevin Hawkins arrived as Officer Van Aken was in the process of taking the firearm into his custody. After Officer Van Aken seized the firearm, defendant pointed to another individual in the parking lot and stated that this individual had given him the firearm "and told him to hold on to it."

On 16 November 2015, the Mecklenburg County Grand Jury returned bills of indictment charging defendant with possession of a firearm by a felon and carrying a concealed weapon. Previously, on 2 February 2015, defendant was indicted for having attained habitual felon status. The charges against defendant came on for trial before the trial court and a jury at the 19 January 2016 criminal session of the Superior Court, Mecklenburg County. During the trial, defendant stipulated that he had been convicted of a felony prior to 14 August 2014. At the jury instruction conference, the State requested the trial court to instruct the jury in accordance with N.C. Pattern Jury Instruction Crim. No. "104.41, actual possession." Defendant objected to the State’s request on the grounds that, when it gives the definition of possession it refers to actual or constructive. The [S]tate’s evidence was that it was actual possession; there was no constructive possession.... It’s not in terms of if it was near him or on him; there are witnesses stating it was on him, so therefore I would contend you should deny that instruction.

In overruling defendant’s objection, the trial court told the prosecutor that "I think [the State] may have a good argument for actual, but nothing for constructive. And if the jury believes the witnesses, they’re going to believe actual possession, right?" As a result, 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 he has it on his person and is aware of its presence, or 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 his person but is aware of its presence and both the power and intent to control its disposition or use. A person’s awareness of an article and a person’s power and intent to control its disposition or use may be shown by direct evidence, or it may be inferred by the circumstances.


The [d]efendant has been charged with possessing a firearm after having been convicted of a felony. For you to find the [d]efendant guilty of this offense, the State must prove two things beyond a reasonable doubt.

First, that prior to August 14th, 2014, the [d]efendant was convicted of a felony that was committed in violation of the law of the State of North Carolina; and second, that thereafter the [d]efendant possessed a firearm. If you find from the evidence beyond a reasonable doubt that the [d]efendant was convicted of a felony i[n] Superior Court and that the [d]efendant thereafter possessed a firearm, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

As it deliberated, the jury requested "a legal definition of possession of a firearm [and] a definition of a concealed weapon."

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Before responding to the jury’s inquiry, the trial court addressed the parties, stating that "I will re-read the definition of possession of firearm by a felon, and in that definition I’ll include actual and constructive possession; and I will re-read the concealed weapon instruction." Defendant unsuccessfully renewed his objection to the trial court’s proposed possession instruction "based on due process grounds, on the possession instruction."

On 21 January 2016, the jury returned a verdict convicting defendant of possession of a firearm by a felon and acquitting him of carrying a concealed weapon. Seven days later, defendant entered a plea of guilty to attaining habitual felon status. Based upon the jury’s verdict and defendant’s guilty plea, the trial court entered a judgment sentencing defendant to a term of 100 to 132 months imprisonment. Defendant noted an appeal to the Court of Appeals from the trial court’s judgment.

In seeking relief from the trial court’s judgment before the Court of Appeals, defendant argued, among other things, that the trial court had erred by instructing the jury that it could find him guilty of possession of a firearm by a felon on the basis of a constructive possession theory. State v. Malachi, __ N.C.App. __, __, 799 S.E.2d 645, 647 (2017).2 In awarding defendant a new trial on the basis of this contention, the Court of Appeals began by determining that "the State’s evidence supported an instruction only for actual possession and that the trial court erroneously instructed the jury on constructive possession."3 Id. at __, 799 S.E.2d at 649. After noting that "a trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial," id. at __, 799 S.E.2d at 648 (quoting State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 94 S.Ct. 3195, 41 L.Ed.2d 1153 (1974) ), and that "[o]ur courts [ ] have consistently held that a trial court’s inclusion of a jury instruction unsupported by the evidence presented at trial is an error requiring a new trial," id. at __, 799 S.E.2d at 648, first citing State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990); and then citing in the following order State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987); State v. Johnson, 183 N.C.App. 576, 584-85, 646 S.E.2d 123, 128 (2007); State v. Hughes, 114 N.C.App. 742, 746, 443 S.E.2d 76, 79, disc. rev. denied, 337 N.C. 697, 448 S.E.2d 536 (1994); and State v. O’Rourke, 114 N.C.App. 435, 442, 442 S.E.2d 137, 140 (1994), the Court of Appeals acknowledged that, in State v. Boyd, 366 N.C. 548, 742 S.E.2d 798 (2013), this Court had reversed a Court of Appeals...

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