State Carolina v. Billinger

• Decision Date: 05 July 2011
• Docket Number: No. COA10–1412.,COA10–1412.
• Parties: STATE of North Carolinav.Rashamell Q. BILLINGER, Defendant.
• Court: North Carolina Court of Appeals

714 S.E.2d 201

STATE of North Carolina

v.Rashamell Q. BILLINGER, Defendant.

No. COA10–1412.

Court of Appeals of North Carolina.

July 5, 2011.

Appeal by defendant from judgments entered 21 April 2010 by Judge William R. Pittman in Hoke County Superior Court. Heard in the Court of Appeals 13 April 2011.

Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.

Thomas R. Sallenger for defendant-appellant.

HUNTER, ROBERT C., Judge.

Defendant Rashamell Q. Billinger appeals his convictions for possession of a weapon of mass death and destruction and conspiracy to commit robbery with a dangerous weapon. After careful review, we find no error with respect to defendant's possession conviction, but conclude that the conspiracy indictment is facially defective, requiring vacating that conviction as well as the restitution award based on that conviction.

Facts

At trial, the State presented evidence tending to establish the following facts: Late in the afternoon on 26 June 2008, defendant, Kerry Braithwaite, Jonathan Jackson, and Jevaris McArn, along with others, met at Mr. Braithwaite's mother's house in Raeford, North Carolina. The men played basketball in the cul-de-sac and later played cards in the Braithwaites' garage. During the card game, Mr. Jackson complained about needing money to make his car payment. Defendant also indicated that he needed money.

When the card game ended around 10:00 p.m., the four men got into Mr. Jackson's blue Dodge Charger, with Mr. Jackson driving, Mr. Braithwaite in the front passenger seat, Mr. McArn in the backseat behind Mr. Braithwaite, and defendant in the back behind Mr. Jackson. On the way to get something to eat, Mr. Jackson suggested robbing a nearby Hardees restaurant and defendant agreed. As they drove by the Hardees, however, they realized that the restaurant was closed and decided to go back to the Braithwaite residence. On the way back, defendant told Mr. Jackson to “drop him off” at the Food Lion grocery store near the Braithwaites' house, saying that “[h]e needed to find some money” and that he was going to try to rob the Food Lion or “something like that.” When Mr. Jackson pulled into an alley between the grocery store and Mi Casita's, a Mexican restaurant, defendant got out of the car carrying a black pump action shotgun, owned by Mr. McArn. Defendant, who was wearing a black shirt, “baggy” blue pants, black Timberland boots, and a black bandana, “tucked” the shotgun into his pants so that it could not be seen and went behind the buildings.

Luis Alberto Reyes–Perez, a waiter at Mi Casita's, was leaving the restaurant through the alley behind the building, when he encountered an African–American male—later identified as defendant—wearing “Timber boots,” baggy jeans, a black handkerchief over his face, and a black jacket with a hood over his head. Defendant “pulled out” a “dark”-looking weapon, roughly 24 inches long, that appeared to be a shotgun, pointed it at Mr. Reyes–Perez, and demanded his money. As Mr. Reyes–Perez was trying to take his money out of his apron, the gun discharged, hitting Mr. Reyes–Perez in his right arm. At that point, defendant “took off running” and Mr. Reyes–Perez climbed into his co-worker's van and was eventually taken to the hospital.

As the men in the Charger were driving by the front of the Food Lion, they thought they heard a gunshot and saw defendant running across a field behind Mi Casita's. Although Mr. Jackson did not want to pick up defendant, Mr. McArn told the other men that defendant had his shotgun and that they needed to “go pick him up.” As they approached, defendant jumped into the backseat of the Charger with Mr. McArn's shotgun and they men drove back to Mr. Braithwaite's mother's house. Shortly after returning, defendant left the Braithwaite residence with several other people.

Captain John Kivett, with the Hoke County Sheriff's Department, responded to the reported shooting at Mi Casita's, and, while waiting for the K9 unit to arrive, he received another dispatch about shots being fired about two blocks away. Captain Kivett and two sheriff's deputies responded to the second dispatch, which resulted in their going to the Braithwaite residence, where they saw several people standing outside in the yard. While investigating the “shots-fired” call, Captain Kivett noticed an “unfired” shotgun shell laying in the yard. The deputies then searched the perimeter of the yard and found a black, pump action shotgun covered in a red “hoodie.” Captain Kivett also searched Mr. Braithwaite's car, finding in plain view a blue-in-color single-shot shotgun in the rear floorboard.

Defendant was charged with attempted first-degree murder (08 CRS 51486), attempted robbery of Mr. Reyes–Perez with a dangerous weapon (08 CRS 51487); conspiracy to rob Mr. Reyes–Perez with a dangerous weapon (08 CRS 51487); possession of a weapon of mass death and destruction (08 CRS 51492); assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”) (08 CRS 51488); three counts of discharging a firearm into occupied property (08 CRS 51489–91); and, conspiracy to rob the Hardees with a dangerous weapon (09 CRS 945). Defendant pled not guilty and the case proceeded to trial, where, at the conclusion of all the evidence, defendant moved to dismiss all the charges against him. The State voluntarily dismissed two counts of discharging a weapon into occupied property and the trial court, after hearing arguments, dismissed the third count. The court, however, denied defendant's motion to dismiss the charges of attempted murder, AWDWIKISI, attempted armed robbery, possession of a weapon of mass death and destruction, conspiracy rob Mr. Reyes–Perez, and conspiracy to rob the Hardees. The jury acquitted defendant of attempted murder, attempted armed robbery, AWDWIKISI, and conspiracy to rob the Hardees, but found defendant guilty of conspiracy to rob Mr. Reyes–Perez with a dangerous weapon and possession of a weapon of mass death and destruction. The trial court sentenced defendant to consecutive presumptive-range terms of 25 to 39 months imprisonment on the conspiracy charge and 16 to 20 months on the possession charge, suspended the sentence on the possession conviction, and imposed 36 months of supervised probation. The trial court also awarded $46,059.00 in restitution in connection with the possession charge. Defendant timely appealed to this Court.

I

Defendant argues that the trial court erred in denying his motion to dismiss the charge of possession of a weapon of mass death and destruction. In ruling on a defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). “Substantial evidence” is that amount of relevant evidence that a “reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). When considering the issue of substantial evidence, the trial court must view all of the evidence presented “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, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995). “Whether [the] evidence presented constitutes substantial evidence is a question of law for the court[,]” State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991), “which this Court reviews de novo,” State v. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007).

N.C. Gen.Stat. § 14–288.8 (2009) makes it “unlawful for any person to manufacture, assemble, possess, store, transport, sell, offer to sell, purchase, offer to purchase, deliver or give to another, or acquire any weapon of mass death and destruction[,]” which, pertinent to this case, includes “any shotgun with a barrel or barrels of less than 18 inches in length or an overall length of less than 26 inches....” N.C. Gen.Stat. § 14–288.8(a), (c)(3). In order to obtain a conviction for possession of a weapon of mass death and destruction, the State must prove two elements beyond a reasonable doubt: (1) that the weapon is a weapon of mass death and destruction and (2) that defendant knowingly possessed the weapon. State v. Watterson, 198 N.C.App. 500, 504–05, 679 S.E.2d 897, 900 (2009). Defendant does not challenge the sufficiency of the evidence with respect to whether the blue sawed-off shotgun constitutes a weapon of mass death and destruction, ¹ but, rather, contends that the State failed to present sufficient evidence of possession.

Possession of a firearm may be actual or constructive. State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998). A person has actual possession of a firearm if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use. State v. Reid, 151 N.C.App. 420, 428–29, 566 S.E.2d 186, 192 (2002). In contrast, a person has constructive possession of a firearm when, although not having actual possession, the person has the intent and capability to maintain control and dominion over the firearm. State v. Taylor, ––– N.C.App. ––––, ––––, 691 S.E.2d 755, 764 (2010).

The State, in its brief, argues that the evidence that defendant owned the blue sawed-off shotgun is sufficient to establish constructive possession. Although neither defendant nor the State cite any North Carolina appellate decision directly on point, and we have found none, it is a well-established principle of the law of possession in other jurisdictions that constructive possession may be established by evidence showing the defendant's ownership of the contraband. See, e.g., United...