An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-106

                                   Filed: 2 June 2015

Lincoln County, No. 12 CRS 51878-80

STATE OF NORTH CAROLINA

              v.

PHILLIP TODD SUTPHIN


       Appeal by defendant from judgment entered 13 June 2014 by Judge Hugh B.

Lewis in Lincoln County Superior Court. Heard in the Court of Appeals 5 May 2015.


       Attorney General Roy Cooper, by Assistant Attorney General Narcisa Woods, for
       the State.

       The Exum Law Office, by Mary March Exum, for defendant-appellant.


       INMAN, Judge.


       Phillip Todd Sutphin (“defendant”) appeals from judgment entered after a jury

convicted him of two counts of possession of a firearm by a felon.             On appeal,

defendant contends: (1) the trial court erred by denying his motions to dismiss the

charges of possession of a firearm by a felon because defendant established the

affirmative defense that the weapons in question were antiques; and (2) the trial

court committed plain error by providing inaccurate instructions to the jury.
                                  STATE V. SUTPHIN

                                   Opinion of the Court



        After careful review, we conclude that the trial court committed no error in

denying defendant’s motions to dismiss, and committed no plain error in its jury

instructions.

                                    Background

        Based on a tip from defendant’s longtime neighbor, with whom defendant had

been involved in numerous quarrels over the years, Lieutenant Tim Johnson (“Lt.

Johnson”) of the Lincoln County Sheriff’s Office conducted an investigation in 2012

into defendant’s criminal history and alleged possession of firearms. Lt. Johnson

discovered that defendant had been convicted of maiming, a Class H felony, on 24

October 1989. He also learned that defendant had sold two firearms to Boger City

Pawn Shop (“the pawn shop”) in 2010 and 2011. The pawn tickets acquired by Lt.

Johnson showed transactions in which defendant was listed as the seller of the

following weapons: (1) a Colt Frontier, double action .38 pistol (“the Colt”); and (2) a

Winchester Model 94 hunting rifle (“the Winchester”).

        Based on this evidence, Lt. Johnson informed defendant that he planned to

obtain warrants for his arrest. Defendant turned himself into the Sheriff’s Office on

5 June 2012. Defendant was charged with three counts of possession of a firearm by

a felon, with two counts being based on the transactions with the pawn shop and the

additional charge stemming from an encounter involving defendant’s neighbors in

2008.



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                                   Opinion of the Court



      The jury trial on these charges began 12 June 2014. The State called Harold

Fulbright (“Fulbright”), the owner of the pawn shop, to testify about the nature of the

guns that defendant sold. Fulbright testified that he had been an antique dealer for

35 years and had been raised in the antique business by his grandparents. When

asked if either the Colt or Winchester were antique or reenactment guns, Fulbright

testified that they were not.

      Defendant testified that the Colt was an antique made in 1876, passed down

to defendant from his grandfather, who had received it from his grandfather, who had

in turn been given the gun by his grandfather.            He further testified that the

Winchester was an antique that had been passed down by his grandfather as well,

but he did not provide a specific date for the weapon’s origin. Defendant did not deny

selling the guns to the pawn shop.

      At both the close of the State’s evidence and again at the close of all evidence,

defendant moved to dismiss all charges, but defense counsel did not wish to be heard

on either motion. Both motions were denied.

      The trial court instructed the jury on the exemption for antique weapons under

N.C. Gen. Stat. § 14-409.11 (2013). Initially the trial court defined “antique firearm,”

in part, as any gun manufactured on or before 1989.             Counsel for defendant

approached the bench after the full instructions were given and informed the trial

court that it had misspoken with regard to that date. The trial court then clarified



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                                  Opinion of the Court



for the jury that the statute defines “antique firearm” as one being manufactured on

or before 1898, not 1989, and instructed the jury to ignore the previous misstatement.

      The jury convicted defendant of two counts of possession of a firearm by a felon

stemming from his transactions at the pawn shop, but acquitted defendant on the

charge stemming from the encounter with his neighbors in 2008. The charges were

consolidated in one judgment, and the trial court sentenced defendant to 13 to 16

months imprisonment. Defendant gave notice of appeal in open court.

                               I. Motions to Dismiss

      Defendant first argues that the trial court erred by denying his motions to

dismiss. Rather than contesting whether the State presented substantial evidence of

the elements of the crimes charged, defendant argues instead that he established the

affirmative defense that the weapons he was accused of possessing were antiques,

and therefore the charges of possession of a firearm by a felon should not have been

submitted to the jury. We disagree.

      In ruling on a motion to dismiss based on insufficiency of evidence, the trial

court must determine whether there is substantial evidence of each element of the

offense charged. See State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d

164, 169 (1980). When reviewing the evidence, the trial court must consider even



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                                  Opinion of the Court



incompetent evidence in the light most favorable to the prosecution, granting the

State the benefit of every reasonable inference. State v. Brown, 310 N.C. 563, 566,

313 S.E.2d 585, 587 (1984).

      Consistent with the general rule that any contradictions or discrepancies in

the evidence should be resolved by the jury, id., this Court has also specifically held

that it “may reverse the denial of a motion to dismiss based upon an affirmative

defense only if the evidence in support of that affirmative defense is undisputed and

does not require determination of a witness’ credibility.” State v. Lockhart, 181 N.C.

App. 316, 321, 639 S.E.2d 5, 8 (2007) (emphasis added).

      In Lockhart, the defendant argued that the trial court erred by denying his

motion to dismiss the charge of work-release escape where he presented evidence

establishing an affirmative defense to that crime—that the defendant had voluntarily

returned to custody within 24 hours of his escape. Id. at 321-22, 639 S.E.2d at 8-9.

This Court held that although evidence showed the defendant had returned within

24 hours, there was also evidence indicating that the defendant’s family had

surrendered him to law enforcement to avoid charges for harboring a fugitive. Id.

Because “[t]he jury could have concluded this surrender was not a ‘voluntary return,’ ”

the defendant “failed to show that the undisputed evidence supported the conclusion

that he voluntarily returned into custody.” Id. at 322, 639 S.E.2d at 9. Given this




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                                  Opinion of the Court



conflicting evidence, this Court concluded that the trial court did not err by denying

the motion to dismiss and properly submitted this question to the jury. Id.

      Here, defendant was charged with possession of a firearm by a felon under N.C.

Gen. Stat. § 14-415.1 (2013). Section 14-415.1(a) provides that the statute does not

apply to an “antique firearm,” as defined in the following manner under N.C. Gen.

Stat. § 14-409.11:

             (1) Any firearm (including any firearm with a matchlock,
             flintlock, percussion cap, or similar type of ignition system)
             manufactured on or before 1898.

             (2) Any replica of any firearm described in subdivision (1)
             of this subsection if the replica is not designed or
             redesigned for using rimfire or conventional centerfire
             fixed ammunition.

             (3) Any muzzle loading rifle, muzzle loading shotgun, or
             muzzle loading pistol, which is designed to use black
             powder substitute, and which cannot use fixed
             ammunition.

      Defendant sought to establish at trial that both the Colt and the Winchester

were antique firearms. As to the Colt, he testified that it was manufactured in 1876

and was passed down through his family for generations. He also gave testimony

that the Winchester was an antique that had been given to him by his grandfather,

but he did not testify as to when that weapon was manufactured.

      Defendant argues on appeal that this evidence was sufficient to establish the

affirmative defense that these weapons were antiques under section 14-409.11, and



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                                   STATE V. SUTPHIN

                                   Opinion of the Court



therefore the charges for possession of a firearm by a felon under section 14-415.1

should have been dismissed.       However, defendant did not present “undisputed”

evidence that the firearms in question were antiques. Fulbright, the owner of the

pawn shop and an antiques dealer for 35 years, testified that neither the Colt nor the

Winchester was an antique. After giving testimony regarding the firing mechanisms

in these weapons as contrasted with the characteristics of antique weapons and

firearms used in re-enactments, Fulbright engaged in the following colloquy with the

prosecutor:

              Q: [Defense counsel] was asking you about a series of
              antique guns and re-enactment guns; are the two guns on
              the two pawn tickets those types of guns?

              A: No.

As to the Colt, Fulbright specifically testified that “[a] double-action .38 I don’t think

is going to be classified as an antique firearm.” Given the discrepancy between

defendant’s and Fulbright’s testimony as to the antique status of the weapons, the

determination of whether the Colt, the Winchester, or both, were manufactured on or

before 1898 turned on the jury’s assessment of these witnesses’ credibility.

      Accordingly, because the evidence regarding the affirmative defense in this

case was conflicting, we will not disturb the trial court’s denial of defendant’s motions

to dismiss. See Lockhart, 181 N.C. App. at 321, 639 S.E.2d at 8. The trial court

properly submitted those charges to the jury. Id. Defendant’s argument is overruled.



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                                   Opinion of the Court



                                 II. Jury Instructions

      Defendant’s final argument on appeal is that the trial court committed plain

error by providing improper and inaccurate jury instructions on the definition of

“antique firearm.” We disagree.

      Because defendant failed to object to the jury instructions in question, we

review this issue for plain error. See State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d

28, 31 (1996) (noting that the Supreme Court of North Carolina “has elected to review

unpreserved issues for plain error when they involve . . . errors in the judge’s

instructions to the jury[.]”).     Under plain error review, “a defendant must

demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365 N.C.

506, 518, 723 S.E.2d 326, 334 (2012). Additionally, “a defendant must establish

prejudice—that, after examination of the entire record, the error ‘had a probable

impact on the jury’s finding that the defendant was guilty.’ ” Id. (quoting State v.

Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). “[B]ecause plain error is to be

applied cautiously and only in the exceptional case, the error will often be one that

seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Id. (quotation marks omitted).

      Here, the trial court instructed the jury on the definition of “antique firearm”

as follows:

              Now, please understand that the statute does not apply to
              antique firearm. And the term “antique firearm” means


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                                  Opinion of the Court



             any of the following: any firearm, including any firearm
             with a matchlock, flintlock, percussion cap, or similar type
             of ignition system, manufactured on or before 1989, and
             any replica of a firearm described in subdivision 1 of this
             subsection, if this replica is not designed or redesigned for
             using rimfire or conventional centerfire fixed ammunition.
             Any muzzle-loading rifle, muzzle-loading shotgun or
             muzzle-loading pistol which is designed to use black-
             powder substitute and which cannot use fixed ammunition.
             And for the purpose of this section, the term “antique
             firearm” shall not include any weapon which incorporates
             a firearm frame or receiver, is converted into a
             muzzeloaded weapon or is a muzzleloading weapon that
             can be readily converted to firefixed ammunition by
             replacing the barrel, bolt, breach lock or any combination
             thereof.

      Defendant first contends that these instructions were “confusing” and “did not

clearly or accurately delineate the three methods by which a firearm comes under the

antique firearm exception.” However, defendant fails to explain why the trial court’s

instructions were unclear, confusing, or inaccurate. Although defendant argues that

the trial judge “clearly did not understand the statute defining antique firearm or

what it means as a defense to the charge of possession of a firearm by a felon,” this

belief is not reflected in the record or the transcript. The trial court’s instruction

tracks the language of section 14-409.11 verbatim. See N.C. Gen. Stat. § 14-409.11(a).

Because defendant fails to propose any instruction that could have explained the term

“antique firearm” more clearly than the exact language of its defining statute, we

reject defendant’s argument that the instruction was erroneous for being confusing,

unclear, or inaccurate.


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                                    STATE V. SUTPHIN

                                    Opinion of the Court



       Furthermore, defendant contends that the trial court’s initial misstatement of

the applicable date in section 14-409.11(a) amounted to plain error.              We are

unpersuaded. “Where, as here, the inadvertence complained of occurs early in the

charge but is not called to the attention of the court at the time, and is later corrected,

the occurrence will not be held for prejudicial error when it is apparent from the

record that the jury could not have been misled.” State v. Wells, 290 N.C. 485, 498,

226 S.E.2d 325, 334 (1976). Here, the trial judge initially said “1989” when he meant

to say “1898,” but was quickly corrected by counsel and instructed the jury to

disregard the error. The very nature of the instruction—defining the term “antique

firearm”—precludes any reasonable chance that the jury was misled. No rational

juror could have been led to believe that any firearm manufactured before 1989 was

an “antique” for purposes of the statutory exemption. To hold that such a quickly

corrected slip of the tongue in a jury instruction rises to the level of plain error

without any indication that the jury was misled would place an impossible burden of

perfection on our learned and capable trial judges. Such a result is neither required

by law nor desirable. Accordingly, we reject defendant’s argument that the trial court

committed plain error here.

                                      Conclusion

       Because there was conflicting evidence regarding the age of the Colt and the

Winchester firearms, the trial court properly denied defendant’s motions to dismiss



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                                   Opinion of the Court



the charges of possession of a firearm by a felon. Additionally, the trial court’s quickly

corrected misstatement in its jury instruction did not rise to the level of plain error.



      NO ERROR; NO PREJUDICIAL ERROR.

      Judges BRYANT and DAVIS concur.

      Report per Rule 30(e).




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