State v. Watterson, COA08-1110.
| Decision Date | 04 August 2009 |
| Docket Number | No. COA08-1110.,COA08-1110. |
| Citation | 679 S.E.2d 897 |
| Parties | STATE of North Carolina v. Brian Keith WATTERSON, Defendant. |
| Court | North Carolina Court of Appeals |
Eric A. Bach, for defendant-appellant.
Defendant Brian Keith Watterson appeals his convictions for two counts of possession of a weapon of mass death and destruction in violation of N.C. Gen.Stat. § 14-288.8 (2007) based on his possession of two sawed-off shotguns that had barrel lengths of less than 18 inches. Defendant argues on appeal that the trial court erred in failing to instruct the jury on an essential element of the offense: that he knew the physical characteristics of the shotguns that made them unlawful. We conclude, however, that the General Assembly intended that possession of the weapon alone—as defined by present law regarding "possession"—would constitute a violation of N.C. Gen.Stat. § 14-288.8. The trial court, therefore, properly refused to instruct the jury that it was required to find that defendant knew that the barrels of the two shotguns in his possession were less than 18 inches.
The State's evidence at trial tended to show that on the evening of 16 August 2007, defendant called the Guilford County Sheriff's Department, reporting a possible break-in at his house. Deputy Vincent L. Gaddy and another deputy were dispatched to defendant's residence to investigate. When they arrived, the two deputies performed a security sweep of the interior of the house. While doing so, they noticed two shotguns in defendant's bedroom.
After finishing their sweep, the deputies asked defendant about the shotguns and inspected them. Defendant acknowledged that the guns belonged to him and explained that he had "cut the barrels off" because he believed he was being stalked, and he needed to be able to move around more easily in his home while holding the guns. Defendant also told the deputies that he did not know the length of the barrels of the two guns.
Deputy Gaddy looked up the legal limitations for the length of a shotgun's barrel, but was unable to visually determine whether the guns' barrels were too short. After getting a tape measure from a third deputy, the two deputies measured the length of the barrels of defendant's guns: one measured 13 9/16 inches long, while the second measured 14 3/4 inches long. Based on the length of the barrels, the deputies arrested defendant and charged him with two counts of possession of a weapon of mass death and destruction.
At trial, defendant moved to dismiss the charges at the close of the State's evidence, contending that the State had failed to "prove that [defendant] actually knew that the length of the shotguns was less than eighteen inches." After the trial court denied the motion to dismiss, defendant testified that he is a former service member of the United States Navy, where he was given security training, including SWAT-team-style training. Defendant explained that he believed he was being stalked as a result of a lawsuit he had filed. He had sawed off the barrels of both guns to make it easier to maneuver around in the house while carrying either of the guns. Defendant stated that the barrel of one of the shotguns had previously been bent, so he decided to cut it off at the bend to make the gun safer. He sawed off the other shotgun by "eyeball[ing] what [he] thought would be a safe measurement for safe use of the weapon." Defendant further testified that he did not measure the barrels of either gun before or after cutting them down and that he never knew what the actual lengths of the barrels were. Defendant renewed his motion to dismiss at the close of his evidence, and the trial court again denied the motion.
During the charge conference, defendant requested that the trial court instruct the jury that as an essential element of the crime, the jury must find that defendant knew that the barrels of the shotguns were less than 18 inches long. Defendant submitted to the court a proposed written instruction that would have required the jury to find not only that defendant possessed a shotgun that had a barrel less than 18 inches long, but also that "the defendant knew that the shotgun had a barrel with a length less than eighteen (18) inches." When the trial court refused to give the proposed instruction, defense counsel objected that the jury was not being required to make any finding of criminal intent, knowledge, or willfulness.
Ultimately, the trial court instructed the jury that the State was required to prove only "[t]hat the defendant possessed a weapon of mass death and destruction." The court then explained that "[p]ossession of an article may be either actual or constructive," but that either form of possession requires that the person be "aware of [the article's] presence and [have] both the power and intent to control its disposition or use." The court then instructed the jury that "[a] weapon of mass death and destruction is any shotgun with a barrel of less than eighteen inches in length."
The jury found defendant guilty of both counts. The trial court sentenced defendant to a presumptive-range term of 15 to 18 months imprisonment for one count. With respect to the second count, the court imposed a presumptive-range term of 19 to 23 months, but suspended the sentence and placed defendant on supervised probation for 60 months beginning upon his release from incarceration on the first count. Defendant timely appealed to this Court.
The sole issue before this Court is whether the trial court erred in not instructing the jury that it was required to determine whether defendant knew that his shotguns had barrels less than 18 inches long. State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). This Court, therefore, reviews de novo the trial court's jury instructions regarding the elements of the offense at issue. State v. Ramos, ___ N.C.App. ___, ___, 668 S.E.2d 357, 362 (2008), aff'd on other grounds, 363 N.C. 352, 678 S.E.2d 224 (2009).
N.C. Gen.Stat. § 14-288.8(a) 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." The statute defines the term "weapon of mass death and destruction" to include:
(1) Any explosive or incendiary:
a. Bomb; or
b. Grenade; or
c. Rocket having a propellant charge of more than four ounces; or
d. Missile having an explosive or incendiary charge of more than one-quarter ounce; or
e. Mine; or
f. Device similar to any of the devices described above; or
(2) Any type of weapon (other than a shotgun or a shotgun shell of a type particularly suitable for sporting purposes) which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; or
(3) Any firearm capable of fully automatic fire, any shotgun with a barrel or barrels of less than 18 inches in length or an overall length of less than 26 inches, any rifle with a barrel or barrels of less than 16 inches in length or an overall length of less than 26 inches, any muffler or silencer for any firearm, whether or not such firearm is included within this definition. For the purposes of this section, rifle is defined as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder; or
(4) Any combination of parts either designed or intended for use in converting any device into any weapon described above and from which a weapon of mass death and destruction may readily be assembled.
The term "weapon of mass death and destruction" does not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line-throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of Title 10 of the United States Code; or any other device which the Secretary of the Treasury finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting purposes, in accordance with Chapter 44 of Title 18 of the United States Code.
Although defendant contends that a failure to require the State to prove that a defendant knew the length of the shotgun barrel would render N.C. Gen.Stat. § 14-288.8 a strict liability crime without any requirement of mens rea, that articulation of the issue is not precisely correct. Analogous to the controlled substances statutes, see N.C. Gen. Stat. § 90-95 (2007) (), the General Assembly has prohibited a person from "manufactur[ing], assembl[ing], possess[ing], stor[ing], transport[ing], sell[ing], offer[ing] to sell, purchas[ing], offer[ing] to purchase, deliver[ing] or giv[ing] to another, or acquir[ing] any weapon of mass death and destruction." N.C. Gen.Stat. § 14-288.8(a). There is a degree of knowledge or intent implicit in these acts—our courts have fleshed out the law governing these acts in other contexts prohibiting the same acts with respect to other contraband. See Black v. Littlejohn, 312 N.C. 626, 639, 325...
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