              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1002

                                Filed: 18 April 2017

Edgecombe County, No. 15 CRS 50277

STATE OF NORTH CAROLINA

             v.

KENRICK J. BATTLE


      Appeal by defendant from judgment entered 10 February 2016 by Judge

Wayland J. Sermons, Jr. in Edgecombe County Superior Court. Heard in the Court

of Appeals 22 March 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      William D. Spence for defendant-appellant.


      TYSON, Judge.


      Kenrick J. Battle (“Defendant”) appeals from judgment entered upon a jury’s

conviction of felonious possession of a firearm by a felon.   We reverse the trial

court’s denial of Defendant’s motion to dismiss.

                                   I. Background

      On 3 February 2015, Edgecombe County Sheriff’s deputies arrived at a

residence in a rural part of the county in an attempt to locate Defendant. They

determined Defendant was not present inside the residence and left. The deputies
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received a “tip” approximately fifteen minutes later, which caused them to establish

a perimeter around a large section of woods adjacent to the residence.

      Deputy Kenneth Wooten deployed a canine, a Dutch Shepherd, “Max,” to

track human scent in the wooded area. Deputy Wooten testified Max is trained “to

track human beings that have fled from an area” and “indicate where someone is

hiding” by tracking a combination of human scent, crushed vegetation, and

sedimentation. Deputy Wooten further testified Max is trained to “ensure [he] is

not going to veer off of one track onto another,” and to remain on the original track

in the event he detects the scent of another human being.

      Deputy Wooten took Max along a wood line and was accompanied by

Detective Greg Weeks. Max detected a human scent on a footpath, which led into

the woods. Max led the deputies and proceeded along the footpath, which ended

approximately fifteen to twenty yards from the beginning of the wood line. Max

continued to track into the woods, and led the deputies across a ditch and into a

dense thicket. While in the vegetation, Max raised his head and began sniffing the

air. This behavior, Deputy Wooten referred to as “air scenting,” indicated they were

“close to someone or something.” The deputies saw an “assault rifle” in front of

Max, which they retrieved and determined it was loaded.

      Max began tracking away from the area from where the rifle was found. He

led the deputies through the woods, parallel to Highway 122.             The deputies



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continued to follow Max parallel to the highway, until they came upon a ditch at the

edge of a field. A footprint was visible on the other side of the ditch. Max led the

deputies across the ditch, but lost the track.          Another man, Anthony Lyons,

emerged from the woods at another location, while Max and the deputies were near

the ditch. Another deputy arrested Lyons at the perimeter of the woods.

      The deputies and Max emerged from the woods after Max lost the track.

They gave the recovered rifle to their supervisor, and allowed Max to rest for

approximately five minutes. The deputies and Max returned to the ditch, where

Max had lost the track. According to Deputy Wooten, Max “immediately picked the

track back up,” and led the officers toward the highway. Max led the officers into

an area of extremely thick briars and began “air scenting.”          Defendant was

discovered lying upon the ground. Deputy Wooten testified the distance between

where the rifle was recovered and Defendant was found was between seventy-five

and one hundred yards.

      No evidence was presented regarding the ownership of the rifle. DNA swabs

that were taken from the rifle and compared to Defendant’s DNA were inconclusive.

The State did not present any fingerprint or additional evidence to connect

Defendant to the rifle.

      The State presented evidence tending to show Defendant was previously

convicted of a felony offense, taking indecent liberties with a child, in 2009. The



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jury convicted Defendant of possession of a firearm by a felon. The trial court

sentenced Defendant to an active prison term of nineteen to thirty-two months.

Defendant appeals.

                                    II. Jurisdiction

      Jurisdiction lies in this Court from final judgment of the superior court

entered upon the jury’s verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-

1444(a) (2015).

                            III. Sufficiency of the Evidence

      In his sole argument on appeal, Defendant argues the trial court erred by

denying his motion to dismiss the charge of possession of a firearm by a felon.

Defendant asserts the State presented insufficient evidence to show he possessed

the rifle found in the woods. We agree.

                                A. Standard of Review

      “We review the trial court’s denial of Defendant’s motion to suppress de

novo.” State v. Sanders, 208 N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010). Under

a de novo standard of review, this Court “considers the matter anew and freely

substitutes its own judgment for that of the trial court.” Id.

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

             the trial court must consider the evidence in the light
             most favorable to the State, drawing all reasonable
             inferences in the State’s favor. All evidence, competent or
             incompetent, must be considered. Any contradictions or


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             conflicts in the evidence are resolved in favor of the State,
             and evidence unfavorable to the State is not considered.
             In its analysis, the trial court must determine whether
             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. When the evidence
             raises no more than a suspicion of guilt, a motion to
             dismiss should be granted. However, so long as the
             evidence supports a reasonable inference of the
             defendant’s guilt, a motion to dismiss is properly denied
             even though the evidence also permits a reasonable
             inference of the defendant’s innocence. The test for
             sufficiency of the evidence is the same whether the
             evidence is direct, circumstantial or both.

State v. Bradshaw, 366 N.C. 90, 92-93, 728 S.E.2d 345, 347 (2012) (internal citation

and quotation marks omitted).

                            B. Possession of the Firearm

      To convict Defendant of felonious possession of a firearm by a felon, the State

must prove: (1) Defendant was previously convicted of a felony; and (2) Defendant

thereafter possessed a firearm. N.C. Gen. Stat. § 14-415.1 (2015); State v. Best, 214

N.C. App. 39, 45, 713 S.E.2d 556, 561, disc. review denied, 365 N.C. 361, 718 S.E.2d

397 (2011). Defendant does not challenge his status as a convicted felon. He argues

the State failed to present sufficient evidence he possessed the firearm the deputies

discovered in the woods.

      Possession of a firearm may be actual or constructive. State v. Billinger, 213

N.C. App. 249, 253, 714 S.E.2d 201, 205 (2011). Our Court has explained:


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             A person has actual possession of a firearm if it is on his
             person, he is aware of its presence, and either by himself
             or together with others he has the power and intent to
             control its disposition or use. In contrast, a person has
             constructive possession of a firearm when, although not
             having actual possession, the person has the intent and
             capability to maintain control and dominion over the
             firearm.

Id. at 253-54, 714 S.E.2d at 205.

      “‘It is sometimes difficult to distinguish between evidence sufficient to carry a

case to the jury, and a mere scintilla, which only raises a suspicion or possibility of

the fact in issue.’” State v. Brooks, 136 N.C. App. 124, 129, 523 S.E.2d 704, 708

(1999) (quoting State v. Johnson, 199 N.C. 429, 154 S.E. 730 (1930)), disc. review

denied, 351 N.C. 475, 543 S.E.2d 496 (2000). If the evidence “is sufficient only to

raise a suspicion or conjecture as to either the commission of the offense or the

identity of the defendant as the perpetrator of it, the motion for nonsuit should be

allowed.   This is true even though the suspicion so aroused by the evidence is

strong.” In re Vinson, 298 N.C. 640, 656-57, 260 S.E.2d 591, 602 (1979) (citations

omitted). Here, the testimonies of Deputy Wooten and Detective Weeks regarding

Max’s tracking behavior may raise a “strong suspicion” that Defendant possessed

the rifle, constructively or otherwise, “but [is] not sufficient to remove that issue

from the realm of suspicion and conjecture.” State v. Malloy, 309 N.C. 176, 179, 305

S.E.2d 718, 720 (1983).




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      Our Court has declined to uphold convictions based upon constructive

possession in cases where the defendant is not the sole occupant of the area where

the firearm is found, and no other incriminating evidence links the defendant to the

weapon. For example, Defendant cites State v. Bailey to support his argument the

State failed to present sufficient evidence to show he constructively possessed the

rifle. 233 N.C. App. 688, 757 S.E.2d 491, disc. review denied, 367 N.C. 789, 766

S.E.2d 678 (2014).    In Bailey, officers responded to a report of gunshots at an

apartment complex, and saw a vehicle drive away. Id. at 689, 757 S.E.2d at 492.

Officers stopped the vehicle, which was owned and driven by the defendant’s

girlfriend. Id.   The defendant was seated in the passenger’s seat and told the

officers that a firearm was located on the rear floorboard. Id. The firearm was

warm, had recently been fired, and was registered to the defendant’s girlfriend. Id.

A gunshot residue test taken of the defendant’s hands was inconclusive. Id. at 689-

90, 757 S.E.2d at 492. This Court held “the only evidence linking [the] defendant to

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

backseat[,]” and was insufficient to allow the jury to infer constructive possession.

Id. at 693, 757 S.E.2d at 494.

      We acknowledge the officers’ testimonies that Max tracked an unknown

human scent from the wood line to the area where the rifle was recovered, and that

Max is trained not to veer off one human scent and onto another. However the rifle



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was not found in Defendant’s physical possession or in the immediate area under

his “capability to maintain control and dominion over the firearm.” Billinger, 213

N.C. App at 254, 714 S.E.2d at 205. Another man was also present in the same

woods as Defendant, while the officers searched for Defendant. Furthermore, Max

lost the original track at the ditch, took a break to rest outside of the woods, and

then resumed tracking.

      This Court has upheld a defendant’s conviction, where the defendant was

identified as the perpetrator by a tracking canine. State v. Green, 76 N.C. App. 642,

334 S.E.2d 263, disc. review denied, 315 N.C. 187, 340 S.E.2d 751 (1985). In Green,

the officers utilized two canines to investigate a breaking and entering and larceny

from a store. Id. at 643, 334 S.E.2d at 264-65. The canines were offered a “scent

source” at the crime scene, which consisted of gloves and shoes taken from the

defendant and the codefendant. Id. at 643, 334 S.E.2d at 265. One of the dogs, a

Doberman pinscher, tracked the scent to a location where two stolen microwave

ovens had been abandoned. Id. The Doberman was taken off the trail to protect the

dog from the cold rain. Id. The other dog, a Rottweiler, “then traced the scent along

the same path . . . to where the defendant and the codefendant were apprehended.”

Id.

      The defendant in Green argued the trial court erred by admitting the dog

tracking evidence without testimony of the characteristics of the breeds, and by



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failing to dismiss the charges of larceny and breaking and entering for insufficient

evidence. Id. Our Court held the trial court properly admitted the evidence and the

defendant’s motion to dismiss was properly denied. Id. at 646, 334 S.E.2d at 266.

       In State v. Styles, 93 N.C. App. 596, 599, 379 S.E.2d 255, 258 (1989), two

bloodhounds tracked a human scent originating from the rape scene to the front

door of a trailer where the defendant was staying. The defendant argued on appeal

that the evidence was insufficient to convict him, because the victim was unable to

identify the defendant as the perpetrator of the rape. Id. at 603, 379 S.E.2d at 260.

       Our Court disagreed, and explained “a bloodhound specially trained in

tracking human beings led a path from the front of the victim’s house to the culvert

where shoe prints were found and then to the trailer where the defendant was

staying.” Id. An expert testified the defendant’s shoes made the prints at the rape

scene and by the culvert. Id. at 600, 379 S.E.2d at 258. Additional expert testimony

showed hairs found and recovered at the scene were consistent with the defendant’s

hair. Id.

       The facts of this case are distinguishable from those in both Green and Styles.

Here, the testimony of Max’s tracking behaviors was the sole testimony offered by

the State to establish that Defendant constructively possessed the rifle. In Styles,

hair and shoe print evidence was also presented to show Defendant was the

perpetrator. Id. In Green, the canines were offered a scent source of the defendant



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and codefendant, and were tracking a known scent. Green, 76 N.C. App. at 643, 334

S.E.2d at 265. Further, unlike the facts in this case, nothing in Green and Styles

indicates the canine lost the track, took a break for a period of time, and then

resumed.     Defendant was not alone in the immediate area where the rifle was

found.     No other evidence, such as fingerprints, DNA, or ownership, linked

Defendant to the rifle or the site from which it was recovered.

         The officers’ testimony is insufficient to establish any link between Defendant

and the firearm. The canine tracking evidence on an unknown scent fails to raise,

as a matter of law, a reasonable inference of either actual or constructive possession

of a firearm by Defendant as a convicted felon. Viewed in the light most favorable

to the State, the evidence raises only a “suspicion [or] conjecture” that Defendant

possessed the rifle. The trial court erred in denying Defendant’s motion to dismiss.

Malloy, 309 N.C. at 179, 305 S.E.2d at 720.

                                     IV. Conclusion

         After viewing the evidence in the light most favorable to the State, the

evidence is insufficient to raise or permit an inference that Defendant actually or

constructively possessed the rifle, and to “remove that issue from the realm of

suspicion and conjecture.” Id. The trial court erred by denying Defendant’s motion

to dismiss the charge of possession of a firearm by a felon.




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      The trial court’s judgment is reversed. This matter is remanded to the trial

court for entry of an order granting Defendant’s motion to dismiss. It is so ordered.

      REVERSED AND REMANDED.

      Judges ELMORE and DIETZ concur.




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