State v. Soles
| Decision Date | 01 July 2008 |
| Docket Number | No. COA07-1076.,COA07-1076. |
| Citation | 662 S.E.2d 564 |
| Parties | STATE of North Carolina, Plaintiff, v. Brian Dean SOLES, Defendant. |
| Court | North Carolina Court of Appeals |
William B. Gibson, Winston-Salem, for defendant-appellant.
Defendant was convicted by a jury of possession of a firearm by a felon and carrying a concealed weapon. Defendant appeals. The dispositive question before this Court is whether the trial court erred in denying defendant's motions to dismiss because there was insufficient evidence to prove the charge of carrying a concealed weapon. For the following reasons, we reverse and remand.
On 18 December 2005, Officer David Jones ("Officer Jones") with the Charlotte-Mecklenburg Police Department was on patrol on the east side of Charlotte. At approximately 8:45 p.m., Officer Jones stopped defendant for an expired tag. Defendant was driving a gray '92 Ford Aero Star mini van ("van") and was the only person in the van. Officer Jones noticed two movie DVDs on the passenger seat of the van because of "the packaging, and that they were not out on DVD yet." Officer Jones asked defendant to step out of his van and patted him down. Officer Jones found nothing illegal from the pat down of defendant. Officer Jones then had defendant sit in the back of his patrol car for "investigative detention." After receiving defendant's consent, Officer Jones went back to the van and noticed there were no seats in the back of the van, but there were two suitcases and a black backpack. Officer Jones then searched the van and found several CDs and DVDs in the suitcases. Officer Jones unzipped the backpack and found various articles of clothing and a loaded pistol.
On or about 9 January 2006, defendant was indicted for possession of a firearm by a felon and carrying a concealed weapon. On or about 10 May 2007, trial began. At the close of the State's evidence and of all of the evidence defendant made a motion to dismiss the charge of carrying a concealed weapon based on the insufficiency of the evidence. A jury found defendant guilty of possession of a firearm by a felon and carrying a concealed weapon. The trial judge determined that defendant had a prior record level of three and sentenced him to 16 to 20 months imprisonment. Defendant appeals. The dispositive question before this Court is whether the trial court erred in denying defendant's motions to dismiss because there was insufficient evidence to prove the charge of carrying a concealed weapon. For the following reasons, we reverse and remand.
N.C. Gen.Stat. § 14-269(a) provides, "It shall be unlawful for any person willfully and intentionally to carry concealed about his person any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shurikin, stun gun, or other deadly weapon of like kind, except when the person is on the person's own premises." N.C. Gen. Stat. § 14-269(a) (2005). Defendant argues that there was insufficient evidence to prove the weapon was "concealed about his person[.]" See id. For the following reasons, we agree.
The proper standard of review on a motion to dismiss based on insufficiency of the evidence is the substantial evidence test. The substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If there is substantial evidence of each element of the charged offense, the motion should be denied.
State v. Key, 182 N.C.App. 624, 628-29, 643 S.E.2d 444, 448 (internal citations and internal quotation marks omitted) (quoting State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990)) (citing State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984)), disc. rev. denied, 649 S.E.2d 398 (2007).
"As to the charge of carrying a concealed weapon, the elements of the offense are: (1) The accused must be off his own premises; (2) he must carry a deadly weapon; and (3) the weapon must be concealed about his person." State v. Gayton, 185 N.C.App. 122, 127, 648 S.E.2d 275, 279 (2007) (internal quotation marks and brackets omitted) (quoting State v. Williamson, 238 N.C. 652, 654, 78 S.E.2d 763, 765 (1953)). The State must prove that the weapon is concealed "not necessarily on the person of the accused, but in such position as gives him ready access to it." State v. Gainey, 273 N.C. 620, 622, 160 S.E.2d 685, 686 (1968). In Gainey, one of three defendants, Ford, was convicted of carrying a concealed weapon when "[h]e was in the driver's seat" and the weapon "was under the back seat." Id. at 623, 160 S.E.2d at 686-87. This Court found there was insufficient evidence to convict Ford and reversed his conviction and judgment because
[t]he language is not "concealed on his person," but "concealed about his person"; that is, concealed near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive. It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged.
Id. at 623, 160 S.E.2d at 687 (quoting State v. McManus, 89 N.C. 555 (1883)) (quotation marks and ellipses omitted).
Cases which have addressed the requirement that the weapon be "about" the person of the defendant in various contexts have focused on the ready accessibility of the weapon, such that it was "within the reach and control of the person charged." See id. (emphasis added). For example, in Gayton this Court found no prejudicial error where
[a]ccording to Detective Clark's unchallenged testimony, when he approached the passenger side of the car where defendant sat, defendant had his right arm extended down between his legs, with his hand stuck under his left leg. After pulling defendant from the passenger seat, the detective discovered a loaded handgun on the passenger seat in the area where defendant's leg and hand would have been.
Gayton at 127, 648 S.E.2d at 279 (internal quotation marks and brackets omitted). In State v. Brooks,
the evidence supported the trial court's findings that Kennedy approached the defendant's car and, using his flashlight, looked into the interior. Upon viewing the empty holster next to the defendant, Kennedy asked the defendant where his gun was and was told by the defendant that the defendant was sitting on the gun. Kennedy then had probable cause to arrest the defendant for carrying a concealed weapon.
337 N.C. 132, 145, 446 S.E.2d 579, 588 (1994). In State v. Jordan, this Court found...
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... ... 122, 127, 648 S.E.2d 275, 279 (2007) (quoting State v. Williamson, 238 N.C. 652, 654, 78 S.E.2d 763, 765 (1953)). The State must prove that the weapon is concealed not necessarily on the person of the accused, but in such position as gives him ready access to it. State v. Soles, 191 N.C.App. 241, 244, 662 S.E.2d 564, 566 (2008) (quoting State v. Gainey, 273 N.C. 620, 622, 160 S.E.2d 685, 686 (1968)). As a result, a finding of guilt of both of the offenses with which Defendant was charged effectively required proof that he possessed a firearm. Defendant does not dispute ... ...
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