State v. Perry

• Citation: 731 S.E.2d 714
• Decision Date: 18 September 2012
• Docket Number: No. COA12–322.,COA12–322.
• Parties: STATE of North Carolina v. Tereck Danielle PERRY, Defendant.
• Court: Court of Appeal of North Carolina (US)

731 S.E.2d 714

STATE of North Carolina

v.Tereck Danielle PERRY, Defendant.

No. COA12–322.

Court of Appeals of North Carolina.

Sept. 18, 2012.

Appeal by defendant from judgment entered on or about 31 August 2011 by Judge Paul G. Gessner in Superior Court, Wake County. Heard in the Court of Appeals 27 August 2012.

M. Alexander Charns, Durham, for defendant-appellant.

Attorney General Roy A. Cooper, III, by David L. Elliot, for the State.

STROUD, Judge.

Defendant appeals his convictions for possession of a firearm by a felon and attaining the status of habitual felon. For the following reasons, we grant defendant a new trial.

I. Background

The State's evidence tended to show that on 26 June 2009, law enforcement officers from the Raleigh Police Department executed a search warrant. Once inside the apartment, the officers found numerous people along with a shotgun in a closet and a pistol in a dresser. The officers noticed defendant sitting in a car outside of the apartment; they brought defendant into the apartment where they read him his Miranda rights, strip searched him, and then questioned him. Defendant told the officers the apartment was his parents' and “he did not know where the guns came from, but he'd never seen them in here” though “he [had seen] the guns in the parking lot, and that they were all looking at them.” The officers arrested defendant and took him back to the police department where he was questioned.

When asked about “the first time he saw the pistol” defendant responded “that he'd seen it a couple—he'd seen a couple people playing with it, there was a lot of people playing with the gun. And he'd seen it about a week ago [.]” Defendant stated that “Ra–Ra[,]” another man, had brought the pistol to the apartment “about a week ago[.]” The officers then questioned defendant about the shotgun, and defendant responded “the shotgun's been in there for a long time. He said that it's probably been there for two years, and the gun, that shotgun, used to be in the next apartment, apartment 10.” When “specifically” asked about “handling both the pistol and the shotgun” defendant “said he was playing with them. He denied owning them, but he had touched them[.]” Defendant stated that he had touched the guns “a couple days ago” without providing “an exact date and time.”

Defendant was indicted for two counts of possession of a firearm by a convicted felon, one count as to the pistol and one count as to the shotgun; possession of a stolen firearm as to the pistol; and attaining the status of a habitual felon. During defendant's trial by jury, at the close of the State's evidence, defendant made a “motion to dismiss for insufficiency of the evidence”[,] which the trial court allowed as to “the charge of possession of the shotgun”[,] but denied as to “the charge of possession of the pistol” and “the possession of stolen goods.” The jury found defendant guilty of possession of a firearm by a convicted felon, specifically the pistol (“possession of the pistol”) and attaining the status of habitual felon. Defendant was sentenced to 60 to 81 months imprisonment on both convictions. Defendant appeals.

II. Jury Instructions

Although defendant has raised issues regarding his motion to dismiss, a specific portion of the jury instructions, the admissibility of certain evidence, and a motion to suppress, we deem defendant's argument regarding the jury's question to the trial court to be dispositive. Once jury deliberations began, the jury sent a note to the trial court asking, “Can we see the definition of possession and the list of criteria?” The trial court then provided the jury with a copy of the jury instructions. After receiving the jury instructions, the jury returned the instructions and the trial court noted that the jury had

highlighted the language which reads, a person has actual possession of a firearm, and they have—and then in the next paragraph, where it says a person has constructive possession of a firearm if he does not have it on the—and they have a note, date of arrest or can previous days be considered. And it says does playing with constitute power and intent to control disposition.

The trial court then instructed the jury, without objection before or after the instructions,

[T]he bailiff has handed me back the copy of the jury instructions that I provided to you folks that you all done some marking and writing on page number three. I have reviewed what you have handed back, particularly the—I'm going to address it I guess in two parts. The first part is the highlighted language. A person has actual possession of a firearm and the highlighted language person has constructive possession of a firearm if the person does not have it on them [sic]. And then there appears to be some question or language that reads day of arrest or can previous days be considered.

In my discretion I'm unable to determine exactly what it is that you're asking for, looking at the form of the question or the writing that you handed back.

So I'm going to charge you that you are to apply your common understandings from your everyday use of the words that are contained within the jury instructions and the law that I've charged you, and apply that to the evidence that has been presented.

With respect to the question that's on the bottom of the page, does playing with constitute power and intent to control disposition.

In my discretion, I'm going to charge you that you have heard the evidence in this case and you've heard the evidence and you've heard the law, and it is once again your duty as a jury to answer the question that's been proposed based on the evidence and the law that I've provided for you.

That is my instructions to you. I'm going to give this back to the bailiff, ask you to return to the jury room and resume your deliberations, once you're all present.

Here, the jury's confusion as to the question of possession was understandable. From a thorough review of the transcript, it appears that the State might have proceeded under two different theories of possession, both actual and constructive. Indeed, the State could have sought to prove that (1) defendant had actually possessed the guns “a couple days” before 26 June 2009 and/or (2) defendant had constructively possessed the guns on 26 June 2009. Nonetheless, the State ultimately chose to pursue only constructive possession, but the trial court instructed the jury on both actual and constructive possession without any objection from either side.

As to actual possession, defendant was indicted for possessing the guns on 26 June 2009, the day of the search of the apartment; as to this date, the record reveals no evidence of actual possession. However, defendant had admitted that he had been “playing with” the guns “a couple days” before 26 June 2009. Nevertheless, during its closing argument, the State told the jury,

And I believe that Judge Gessner will tell you that actual possession is when it's on the person. When the person is aware of its presence and either alone or together with others, has both the power and intent to control its disposition and use.

Those aren't the facts in this case. The weapon wasn't found on the Defendant. It's not an actual possession of the weapon. It's a constructive possession....

....

... And again, there is the actual possession and there is the constructive possession. And this Defendant constructively possessed that firearm.

(Emphasis added.) Thus, despite the evidence of defendant's statements, the State repeatedly told the jury that it should not consider actual possession in determining whether defendant had wrongfully possessed the pistol because this was only a case of constructive possession. As to constructive possession, the indictment stated the date of “on or about June 26, 2009” indicating that the State was pursuing a theory of constructive possession. Also, the evidence provided by the State focused on the date of 26 June 2009; the date defendant allegedly constructively possessed the guns.

Defendant now contends that

[t]he trial court erred or committed plain error by failing to answer the jury's questions about whether the accused could be convicted for “playing with the weapon” on a day other than that charged in the indictment, creating a unanimity issue.

A. Standard of Review

In State v. Tadeja, this Court stated,

[b]ecause defendant failed to object to the jury instructions in this case, this ... [issue] must be analyzed under the plain error standard of review. Plain error with respect to jury instructions requires the error be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the errorwould constitute a miscarriage of justice if not corrected. Further, in deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.

191 N.C.App. 439, 446, 664 S.E.2d 402, 408 (2008) (citations and quotation marks omitted).

B. Elements of N.C. Gen.Stat. § 14–415.1(a)

N.C. Gen.Stat. § 14–415.1(a) provides, in pertinent part, that 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. Thus, the State need only prove two elements to establish the crime of possession of a firearm by a felon: (1) defendant was previously convicted of a felony; and (2) thereafter possessed a firearm.

State v. Best, ––– N.C.App. ––––, ––––, 713 S.E.2d 556, 561 (citation, quotation marks, and brackets omitted), disc. review denied,365 N.C. 361, 718 S.E.2d 397 (2011). The jury's question went to the element of possession.

Possession of any item may be actual or constructive. Actual possession requires that a party have...