                               NO. COA13-1326

                     NORTH CAROLINA COURT OF APPEALS

                              Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                 Person County
                                         No. 11 CRS 52522
SHAWN RONDEL BAILEY



      Appeal by defendant from judgment entered 17 September 2013

by Judge Henry W. Hight, Jr. in Person County Superior Court.

Heard in the Court of Appeals 18 March 2014.


      Attorney General Roy Cooper, by Special            Deputy    Attorney
      General E. Burke Haywood, for the State.

      Winifred H. Dillon for defendant.


      HUNTER, Robert C., Judge.


      Defendant Shawn Bailey appeals the judgment entered after a

jury convicted him of possession of a firearm by a convicted

felon.     On appeal, defendant argues that the trial court erred

in   denying   his   motion   to   dismiss   for   insufficiency    of   the

evidence.

      After careful review, because the State failed to produce

circumstantial evidence that defendant constructively possessed

the firearm, we reverse the order denying his motion to dismiss.
                                        -2-
                                    Background

      On 25 November 2011, Deputy Dustin Harris (“Deputy Harris”)

and Deputy Adam Norris (“Deputy Norris”) of the Person County

Sheriff’s       office   were     standing    outside    the     law    enforcement

center     in     Roxboro   when    they     heard    multiple,        rapidly-fired

gunshots        coming   from    the   Harris    Gardens       Apartments     (“the

apartments”).       Deputies Harris and Norris responded to the scene

of   the    gunshots.       As     Deputy    Harris    entered    the     apartment

complex, he saw a dark-colored, four-door sedan leaving.                          A

female was driving the car, and defendant was in the passenger

seat.      The driver was later identified as Sherika Torrain (“Ms.

Torrain”), defendant’s girlfriend.               The car was registered to

defendant.        Deputy Harris turned his car around, followed the

sedan briefly, and then stopped it.                   Deputy Harris asked if

there were any weapons in the car; according to Deputy Harris,

defendant replied “yes” and told him that there was a gun on the

floor in the back.              Deputy Norris saw the weapon, which was

later identified as an AK-47 assault rifle (“the rifle”).                       The

rifle was warm and had been recently fired, with the magazine

still in the gun.           Later, investigators determined that the

rifle was registered to Ms. Torrain.
                                     -3-
    Corporal Pam Ferstenau (“Corp. Ferstenau”) of the Roxboro

Police   Department   also    responded      to   the   scene.     When   she

arrived, she saw Deputy Harris and Deputy Norris with the sedan.

Corp. Ferstenau took custody of the rifle and an empty magazine

found on the center console of the car.              Sergeant Will Dunkley

(“Sgt. Dunkley”), a patrol supervisor with the Roxboro Police

Department, also responded to the scene.                Sgt. Dunkley, along

with another officer, searched the road near the apartments for

evidence and found a spent shell case.             Sgt. Dunkley testified

that the casing is known as an “SKS round or AK round” which

could be used in either an SKS or AK weapon.

    During   an    interview    at    the    Roxboro    Police   Department,

defendant told police that he and his girlfriend were at the

apartment complex when they heard shots.            Defendant claimed that

they left after the shots, but he denied possessing or firing

the rifle.    A gunshot residue test taken of defendant’s hands

was inconclusive.

    Defendant     testified    in    his    own   defense   at   trial.   He

claimed that he had spent the day at the apartment complex.

After the shooting, he called Ms. Torrain to pick him up.                 She

arrived, and defendant got in the passenger seat.                 Because he

helped her buy the car, defendant admitted it was titled in his
                                            -4-
name; however, he contended that she was the one who used and

controlled the vehicle.

       According to defendant, after Deputy Harris stopped the car

and asked if there were any weapons in it, Ms. Torrain said

“yes.”       Defendant denied knowing there was a gun in the car and

denied telling Deputy Harris where it was located.

       Defendant was indicted for possession of a firearm by a

felon (“possession of a firearm”), going armed to the terror of

the    people,    and     discharging       a     firearm   within    city     limits.

Defendant’s trial began 16 September 2013.                    The jury convicted

defendant of possession of a firearm and acquitted him on the

other charges.         The trial court sentenced defendant to a minimum

term    of    twelve     months    to   a   maximum    term   of     fifteen    months

imprisonment.      Defendant timely appealed.

                                        Argument

       Defendant’s sole argument on appeal is that the trial court

erred    in    denying    his     motion    to    dismiss   the    possession    of   a

firearm charge for insufficiency of the evidence.                     Specifically,

defendant contends that the State failed to present sufficient

incriminating evidence that defendant constructively possessed

the firearm.      We agree.
                                           -5-
      “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”        State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).           “Upon defendant’s motion for dismissal,

the   question   for    the    Court       is     whether      there   is    substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense. If so, the motion is

properly   denied.”     State       v.    Fritsch,       351    N.C.    373,   378,   526

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000)    (internal    quotation          marks    omitted).           “In   making   its

determination,    the    trial           court    must      consider     all    evidence

admitted, whether competent or incompetent, 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, 132 L. Ed. 2d 818 (1995).

      Here, defendant was charged with possession of a firearm by

a felon in violation of N.C. Gen. Stat. § 14-415.1.                          Pursuant to

section 14-415.1(a) (2013), it is “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[.]”                          Defendant

does not challenge his status as a convicted felon; therefore,
                                            -6-
the only element of the offense we must consider on appeal is

possession.

    With       regard    to    possession,        our    Supreme   Court   has    noted

that:

               In    a   prosecution    for    possession   of
               contraband materials, the prosecution is not
               required to prove actual physical possession
               of the materials.      Proof of nonexclusive,
               constructive     possession   is    sufficient.
               Constructive possession exists when the
               defendant,     while    not    having    actual
               possession, has the intent and capability to
               maintain control and dominion over the
               narcotics.    Where such materials are found
               on the premises under the control of an
               accused, this fact, in and of itself, gives
               rise to an inference of knowledge and
               possession which may be sufficient to carry
               the case to the jury on a charge of unlawful
               possession.    However, unless the person has
               exclusive possession of the place where the
               narcotics are found, the State must show
               other   incriminating    circumstances   before
               constructive possession may be inferred.

State    v.    Matias,   354       N.C.   549,    552,    556   S.E.2d   269,    270-71

(2001)    (internal          citations      and    quotation       marks    omitted).

Whether constructive possession exists is based on the totality

of the circumstances.              State v. Butler, 147 N.C. App. 1, 11, 556

S.E.2d 304, 311 (2001).

    In        this   case,    it    is    undisputed     that   defendant    did   not

actually possess the rifle nor was he the only occupant in the

car where it was found.               Therefore, he did not have “exclusive
                                 -7-
possession” of the car, Matias, 354 N.C. at 552, 656 S.E.2d at

270, and the mere fact that defendant was in the car where the

firearm was found does not, by itself, establish constructive

possession, State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d

193, 194 (1976).     Accordingly, the State was required to show

“other   incriminating   circumstances”   linking   defendant   to   the

rifle.   Matias, 354 N.C. at 552, 556 S.E.2d at 271.

    A review of decisions by this Court establishes that when

evidence presented definitively links a defendant to a weapon,

we have found that the circumstantial evidence of constructive

possession was sufficient to withstand a defendant’s motion to

dismiss.    For example, in State v. Glasco, 160 N.C. App. 150,

157, 585 S.E.2d 257, 262, this Court held that the trial court’s

denial of the defendant’s motion to dismiss was proper where the

evidence “tended to show” that the defendant had “discharged a

gun.”    Specifically, the evidence showed that: (1) the defendant

was seen jumping over a fence of a yard near the shooting; (2)

the gun was recovered in that same yard; (3) the defendant was

found carrying a bag with gunshot residue on it; and (4) the

garbage bag had holes in it consistent with a firearm being

fired inside the bag.    Id.
                                        -8-
      Similarly, in State v. Mitchell, __ N.C. App. __, __, 735

S.E.2d 438, 440 (2012), appeal dismissed, __ N.C. __, 740 S.E.2d

466 (2013), police stopped the defendant,                   who was driving a

rental    car,   for   speeding.        The    defendant’s    girlfriend,     Ms.

Harris,    was   a   passenger     in   the    car.     Id.       The   defendant

“indicated” that there was a gun in the glove compartment.                    Id.

Police found the gun inside Ms. Harris’s purse which was being

kept in the glove compartment.                Id.     Although the defendant

denied telling the police about the gun, this Court found that

the circumstances were sufficient to establish the defendant's

constructive possession of the gun because the defendant was

driving the vehicle—thus, he “controlled” it—and he was “aware”

of the gun’s presence in the glove compartment.                Id. at ___, 735

S.E.2d at 443.

      In contrast, however, this Court has found the evidence

insufficient to go to the jury when there is no link between the

defendant and the firearm besides mere presence.                   For example,

in State v. Alston, 131 N.C. App. 514, 515, 508 S.E.2d 315, 316

(1998), the defendant was a passenger in a car driven by his

wife.     A handgun was found on the console of the automobile,

with the defendant and his wife having equal access to it.                    Id.

The   handgun    was   registered       to    his   wife,   and   the   car   was
                                        -9-
registered to the defendant’s brother.                 Id. at 516, 508 S.E.2d

at 317.    Although a child in the car told police that “Daddy’s

got a gun[,]” this evidence was not admitted for the truth of

the matter asserted, so the trial court could not consider it as

substantive proof        of possession.         Id.     Because the evidence

showed no more than mere presence, this Court held that there

was insufficient evidence to support an inference of possession.

Id. at 519, 508 S.E.2d at 319.

    We find the facts of this case closer to those of Alston

than Glasco or Mitchell.         Like Alston, the rifle was registered

to Ms. Torrain, defendant’s girlfriend, who was driving the car

when the rifle was found.           Defendant was a passenger in the

vehicle, not the driver.          Moreover, the rifle was found in a

place where Ms. Torrain and defendant had equal access.                        In

addition, unlike Glasco, there was no physical evidence tying

defendant to the rifle.         Specifically, defendant’s fingerprints

were not found on the rifle, the magazine on the console, or the

spent casing on the road which may have come from an AK firearm.

Although the gun was warm and appeared to have been recently

fired,    there    was   no   evidence        that    defendant   had   actually

discharged   the    rifle     because     the    gunshot    residue     test   was

inconclusive.       Although it is undisputed that the sedan was
                                        -10-
registered to defendant, he was not driving it at the time.

Therefore,       despite     having    legal     ownership    of    the     vehicle,

defendant exercised no control over the car at the time the

rifle was found.

    Finally, although defendant allegedly admitted he knew that

the rifle was in the car to Deputy Harris, awareness of the

weapon is not enough to establish constructive possession.                          In

Mitchell, __ N.C. App. __, 735 S.E.2d at 443-43, awareness was

one of the factors the Court noted; however, its conclusion that

there was sufficient incriminating evidence to submit the issue

to the jury was predicated on both the defendant’s awareness of

the gun and the fact that he was driving the vehicle, noting

that because “[a] driver generally has power to control the

vehicle    he    is    driving[,]”     the     defendant   had     the    “power   to

control”       the    vehicle.       Unlike    Mitchell,     defendant     was     not

driving and, thus, not “controlling” the vehicle where the rifle

was found.       Therefore, defendant’s knowledge or awareness of the

rifle     in     and    of    itself     did     not    constitute        sufficient

incriminating evidence to submit the issue to the jury.

    While the State argues that the fact that the rifle was

registered       to    defendant’s     girlfriend      constitutes       substantial

evidence        of     constructive     possession,        the     Alston        Court
                                          -11-
specifically rejected a similar argument, noting “we are not

persuaded that the purchase and ownership of the handgun by

[the]    [d]efendant’s       wife    is     sufficient    other        incriminating

evidence linking [the] [d]efendant to the handgun.”                     Alston, 131

at 519, 508 S.E.2d at 319.

    In    summary,    the    only        evidence   linking     defendant      to   the

rifle was his presence in the vehicle and his knowledge that the

gun was in the backseat.                 Consequently, the State failed to

present sufficient “other incriminating circumstances,” Matias,

354 N.C. at 552, 556 S.E.2d at 271,                 from which the jury could

infer   constructive     possession.             Accordingly,     we    reverse     the

trial    court’s     order     denying        his    motion     to     dismiss      for

insufficiency of the evidence.

                                    Conclusion

    Because the State failed to present substantial evidence of

constructive   possession,          we    reverse   the   trial      court’s     order

denying defendant’s motion to dismiss the charge of possession

of a firearm by a felon.



    REVERSED.

    Judges BRYANT and STEELMAN concur.
