State v. Bishop

• Decision Date: 01 August 1995
• Docket Number: No. 9418SC433,9418SC433
• Citation: State v. Bishop, 459 S.E.2d 830, 119 N.C.App. 695 (N.C. App. 1995)
• Parties: STATE of North Carolina v. Steven Mark BISHOP, aka Keith Darren Williams.
• Court: North Carolina Court of Appeals

Page 830

459 S.E.2d 830

119 N.C.App. 695

STATE of North Carolina v.Steven Mark BISHOP, aka Keith Darren Williams.

No. 9418SC433.

Court of Appeals of North Carolina.

Aug. 1, 1995.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Valerie B. Spalding, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., and Asst. Appellate Defender J. Michael Smith, Durham, for defendant-appellant.

COZORT, Judge.

The jury found defendant guilty of possession of firearms by a felon while being an habitual felon, and Judge William H. Freeman sentenced him to a term of life in prison.Defendant appealed.We find no error.

On 23 October 1991, Sergeant W.C. Barnes of the Greensboro Police Department was searching for a truck as part of an ongoing investigation.Sergeant Barnes radioed Officer S.E. Sanders and instructed him to stop the truck if he located it.Officer Sanders spotted this particular truck and stopped it.Defendant, the passenger, identified himself as "Keith Williams" and produced a North Carolina drivers license bearing that name.Defendant told Sergeant Barnes that the truck belonged to him and handed over registration in the name of Keith Williams.

Detective Chris Frazier was the lead detective on the case Sergeant Barnes had been investigating.Detective Frazier conducted the search after defendant's truck was stopped.Detective Frazier found a leather jacket in the cab with a loaded .38 caliber pistol inside and another jacket in the truck bed containing a loaded .22 caliber pistol.A second .38 caliber pistol was found in a nylon bag, and an unloaded shotgun was discovered behind the driver's seat.

The trial court ruled during pretrial motions that defendant had been convicted of "Possession, Introduction or Removal of Contraband" in Florida.The term of imprisonment for this felony exceeded two years, to which defendant stipulated.The court also ruled that the crime was substantially similar to N.C.Gen.Stat. § 14-258.2, even though the sentence for § 14-258.2 does not exceed two years.As a result of the Florida conviction, defendant was confined in prison until 28 September 1988.Defendant's release was part of a supervised community release program, and he retained the status of prison inmate until his sentence expired on 1 December 1988.

At the close of the evidence, the jury found defendant guilty of possession of firearms by a felon, a violation of N.C.Gen.Stat. § 14-415.1.The trial then moved into the habitual felon phase where the State introduced evidence of defendant's four felony convictions in Florida and one felony conviction in Virginia.The jury found defendant guilty of being an habitual felon.

Defendant's appeal is based on three grounds: (1) the indictment was insufficient; (2) the evidence was insufficient to establish each element of the offense; and (3) the instructions to the jury were erroneous.We disagree with defendant's contentions and find no error.

Defendant was indicted for and convicted of Possession of a Firearm by a Felon, a violation of N.C.Gen.Stat. § 14-415.1, which provides in pertinent part:

(a) It shall be unlawful for any person who has been convicted of any crime set out in subsection (b) of this section to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c), within five years from the date of such conviction, or the unconditional discharge from a correctional institution, or termination of a suspended sentence, probation or parole upon such conviction, whichever is later.

Every person violating the provisions of this section shall be punished as a Class I felon.

Nothing in this subsection would prohibit the right of any person to have possession of a firearm within his own home or on his lawful place of business.

(b) Prior convictions which cause disentitlement under this section shall only include:

(1) Felonious violations of Articles 3, 4, 6, 7A, 8, 10, 13, 14, 15, 17, 30, 33, 36, 36A, 52A, or 53 of Chapter 14 of the General Statutes, or of Article 5 of Chapter 90 of the General Statutes;

(2) Common law robbery and common law maim; and

(3) Violations of criminal laws of other states or of the United States substantially similar to the crimes covered in subdivisions (1) and (2) which are punishable where committed by imprisonment for a term exceeding two years.

* * * * * *

(c) The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section.An indictment which charges the person with violation of this section must set forth the date that the prior offense was committed, the type of offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein.

N.C.Gen.Stat. § 14-415.1(1993).

The first paragraph of subsection (a) creates a substantive criminal offense, complete and definite in its description.State v. McNeill, 78 N.C.App. 514, 516, 337 S.E.2d 172, 173(1985), disc. review denied, 316 N.C. 383, 342 S.E.2d 904(1986).The third paragraph of the subsection creates an exception to the offense which allows possession within one's home or place of business.Id.A defendant who is charged with the substantive offense and seeks to utilize the exception has the burden of bringing himself within the exception.Id.Absent any evidence that defendant is within the exception of the statute, the State is required to prove only that defendant possessed a handgun within five years of his conviction of or release from prison for a felony specified in N.C.Gen.Stat. § 14-415.1(b).McNeill, 78 N.C.App. at 517, 337 S.E.2d at 174.

Defendant claims that the indictment was invalid because it failed to allege: (1) that possession of the firearm was away from defendant's home or business; (2) that defendant's prior Florida felony was "substantially similar" to a particular North Carolina crime; and (3) to which North Carolina statute the Florida conviction was similar.

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