             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-375

                              Filed: 18 December 2018

Randolph County, Nos. 16 CRS 50079-50080; 16 CRS 197

STATE OF NORTH CAROLINA

      v.

BRAD CHATMAN WIRT


      Appeal by Defendant from judgments entered 16 November 2017 by Judge V.

Bradford Long in Superior Court, Randolph County. Heard in the Court of Appeals

15 October 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Stuart
      Saunders, for the State.

      Stephen G. Driggers for Defendant.


      McGEE, Chief Judge.


      Brad Chatman Wirt (“Defendant”) appeals his convictions for possession of

methamphetamine, possession of a firearm by a felon, and habitual felon status.

Defendant argues the trial court erred in instructing the jury that his status as the

driver of a stopped vehicle was sufficient to support an inference that he

constructively possessed both methamphetamine and a firearm. We disagree.

                       I.    Factual and Procedural History
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                                         Opinion of the Court

       Defendant was stopped by officers of the Randolph County Sheriff’s Office

(“Sheriff’s Office”) on 6 January 2016 while driving a beige Chevrolet pickup truck

(“the truck”). The Sheriff’s Office had received “drug complaints” about a man named

Omar Sanchez (“Sanchez”). Officers conducted a two-hour “rolling surveillance” of

Sanchez and Defendant as they drove to several hotels in the area. Both Sanchez

and Defendant were seen driving the truck during the two-hour surveillance. Officers

checked the truck’s registration, found the license plate had expired, and pulled the

truck over.

       At the time of the stop, Defendant was in the driver’s seat and Sanchez was in

the passenger seat. Officers ran a check of Defendant’s driver’s license and discovered

Defendant had an outstanding warrant and that his license was suspended. The

officers used a K-9 unit to perform a “free air sniff” of the truck. The K-9 unit alerted

to the tailgate of the truck. The officers found several bags and backpacks in the bed

of the truck that Sanchez stated belonged to him.                 While searching one of the

backpacks, officers found 241 blue pills and a notebook containing Sanchez’s name.

Another backpack contained a compass with 0.2 grams of a crystalline substance1, a

digital scale and counterweight, and a notebook containing entries in Defendant’s

handwriting concerning Defendant’s wife. The officers then searched the interior of

the truck and found a revolver and holster beneath the passenger seat.



1
 Defendant’s brief refers to the substance found on the compass as cocaine. However, the State Crime
Laboratory tested and labeled the substance as methamphetamine. Defendant was subsequently
indicted and convicted of possession of methamphetamine.

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                                    Opinion of the Court

      After Defendant was arrested, he was taken to a special operations center and

a strip search was conducted.       During the search, officers found a bag inside

Defendant’s underwear containing thirty-nine pills, fifteen of which were later

determined to be diazepam.            Defendant was indicted for possession of

methamphetamine, possession of a firearm by a felon, three counts of possession with

intent to manufacture, sell or deliver a controlled substance, and having attained

habitual felon status.

      Following the presentation of evidence at trial, the State requested the trial

court include jury instructions based on this Court’s opinion in State v. Mitchell, 224

N.C. App. 171, 177, 735 S.E.2d 438, 443 (2012). The requested instruction explained:

             An inference of constructive possession can arise from
             evidence which tends to show that a defendant was the
             custodian of the vehicle where the contraband was found.
             In fact, the courts in this State have held consistently that
             the driver of a borrowed car, like the owner of the car, has
             the power to control the contents of the car. Moreover,
             power to control the automobile where the contraband was
             found is sufficient in and of itself to give rise to the
             inference of knowledge and possession sufficient to go to
             the jury.

      Defendant objected to the additional instruction, but the trial court elected to

include the expanded instruction. At Defendant’s request, the trial court also added

a definition of “inference” to the jury instructions.

      The jury was instructed on actual and constructive possession.         The jury

instructions stated that an inference of possession can arise when an item is found in

a premises that Defendant had control over even if Defendant did not own the


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                                   Opinion of the Court

premises. The instructions further informed the jury that “power to control the

automobile where the contraband was found is sufficient in and of itself to give rise

to the inference of knowledge and possession.”

      The jury found Defendant guilty of possession of methamphetamine,

possession of a firearm by a felon, and possession of diazepam. Defendant entered a

plea of guilty to habitual felon status.        Defendant appeals his convictions for

possession of methamphetamine, possession of a firearm by a felon, and habitual

felon status.

                                   II.     Analysis

      Defendant’s sole issue on appeal is that “the trial court erred by giving the

special instruction on constructive possession offered by the State over defense

objection where that instruction was an incomplete and misleading statement of the

law.” Defendant’s brief also implies that the State presented insufficient evidence to

support a finding that he constructively possessed either the firearm or the

methamphetamine and the State specifically addresses these arguments. Thus, we

first consider whether there was sufficient evidence to support a finding of

constructive possession and then address whether the trial court erred in giving the

special instruction for constructive possession.

                              A.     Sufficient Evidence

      Defendant states there was insufficient evidence to convict him of possession

of a firearm by a felon and possession of methamphetamine. “The denial of a motion

to dismiss for insufficient evidence is a question of law, which this Court reviews de

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                                   Opinion of the Court

novo.” State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). “Evidence

is sufficient to sustain a conviction when, viewed in the light most favorable to the

State . . . there is substantial evidence to support a jury finding of each essential

element of the offense charged, and of the defendant being the perpetrator of such

offense.” Id.

      Defendant was convicted of possession of methamphetamine in violation of

N.C. Gen. Stat. § 90-95(A)(3) (2017). In order to sustain a conviction for possession

of methamphetamine, the State must prove beyond a reasonable doubt that (1)

Defendant was in possession of (2) a controlled substance. N.C. Gen. Stat. § 90-

95(A)(3) (2017). The State presented evidence that the North Carolina State Crime

Laboratory determined the substance found on the compass was methamphetamine,

a Schedule II controlled substance, and Defendant does not challenge this finding.

Therefore, the only question for this Court is whether there was sufficient evidence

to show Defendant possessed the methamphetamine.

      Defendant was also convicted of possession of a firearm by a felon. To sustain

a conviction for possession of a firearm by a felon, the State must prove beyond a

reasonable doubt that “(1) defendant was previously convicted of a felony; and (2)

thereafter possessed a firearm.” State v. Best, 214 N.C. App. 39, 45, 713 S.E.2d 556,

561 (2011) (internal citations omitted). At trial, Defendant stipulated to his status

as a convicted felon. However, Defendant contends there was insufficient evidence

to support that he was in possession of the firearm.



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                                    Opinion of the Court

      The State must prove that Defendant possessed methamphetamine or the

firearm either actually or constructively. “Actual possession requires that a party

have physical or personal custody of the item. A person has constructive possession

of an item when the item is not in his physical custody, but he nonetheless has the

power and intent to control its disposition.” State v. Alston, 131 N.C. App. 514, 519,

508 S.E.2d 315, 318 (1998) (internal citations omitted). As the methamphetamine

was found in a backpack in the bed of the truck, and not in Defendant’s physical or

personal custody, the State was required to present sufficient evidence to show

constructive possession.

             “[A]n inference of constructive possession can . . . arise from
             evidence which tends to show that a defendant was the
             custodian of the vehicle where the [contraband] was found.
             In fact, the courts in this State have held consistently that
             the driver of a borrowed car, like the owner of the car, has
             the power to control the contents of the car. Moreover,
             power to control the automobile where [contraband] was
             found is sufficient, in and of itself, to give rise to the
             inference of knowledge and possession sufficient to go to
             the jury.”

Mitchell, 224 N.C. App. at 177, 735 S.E.2d at 443 (internal citations omitted). As

Defendant was undisputedly the driver of the truck in which the methamphetamine

was found at the time the officers stopped the truck, Defendant’s dominion and

control over the truck is sufficient to give rise to an inference of possession.

      In Mitchell, the defendant was convicted of possession of marijuana and

possession of a firearm by a felon. Id. at 172, 735 S.E.2d at 440. The defendant in

Mitchell was driving a rental car, had a suspended license, and his girlfriend was in


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                                   Opinion of the Court

the passenger seat when the vehicle was stopped by a police officer. Id. After the

defendant revealed that his girlfriend was in possession of a marijuana cigarette and

told the officer there was a gun in the glove compartment, the officer searched the

vehicle and found a handgun and 79.3 grams of marijuana. Id. at 172-73, 735 S.E.2d

at 440. This Court found that “‘[p]ower to control’ the vehicle is sufficient evidence

from which it is reasonable to infer possession” (“Mitchell standard”), and upheld the

convictions. Id. at 178, 735 S.E.2d at 443.

      Similar to Mitchell, in the present case Defendant was driving a borrowed

truck, with a passenger, when illegal drugs and a weapon were found in the truck.

However, Defendant argues that his dominion and control over the truck was

insufficient to give rise to an inference of constructive possession because he was not

the only occupant of the truck. Instead, Defendant argues that when a defendant

does not have “exclusive possession of the place where the [contraband is] found, the

State must show other incriminating circumstances before constructive possession

may be inferred” (“additional evidence rule”). Best, 214 N.C. App. at 53, 713 S.E.2d

at 565.   Defendant further argues that “the State presented little ‘additional

incriminating evidence’ to support an inference beyond a reasonable doubt that

[Defendant] constructively possessed” the firearm or the methamphetamine on the

compass. However, Best also states that the fact the contraband was found in a

vehicle driven by a defendant “standing alone, might be sufficient to permit a

reasonable inference” of possession. Best, 214 N.C. App. at 47, 713 S.E.2d at 562

(emphasis added).

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                                   Opinion of the Court

      Defendant contends that the definition of constructive possession should

include the additional evidence rule as our Supreme Court discussed in State v.

Chekanow, 370 N.C. 488, 494, 809 S.E.2d 546, 551 (2018) that:

             “[I]f drugs are found in a closet in the defendant’s home and
             the defendant is the sole resident of the home, the evidence
             of constructive possession is sufficient to take the issue to
             the jury.” But if drugs are found “in a vehicle driven by one
             person and carrying several others as passengers,” the
             defendant is not in exclusive possession and other
             incriminating circumstances must be shown.

Importantly, the quoted portion of Chekanow was part of a citation showing the

limited scope of our State’s prior jurisprudence concerning exclusive possession, not

as part of the Supreme Court’s ultimate holding. Id. at 493, 809 S.E.2d at 550.

Instead, Chekanow involved the discovery of marijuana plants outdoors on the

outskirts of the defendant’s property, not contraband inside a vehicle. Id. at 490, 809

S.E.2d at 548. Additionally, the quoted portion of Chekanow comes from a North

Carolina Crimes treatise, not from North Carolina case law. Id. at 493, 809 S.E.2d

at 551 (quoting Jessica Smith, NORTH CAROLINA CRIMES 702 (7th ed. 2012)). Our

Supreme Court denied review in both Best and Mitchell. We believe had the Supreme

Court intended to overrule this Court’s prior holdings that power to control the

automobile where the contraband was found is sufficient, in and of itself, to give rise

to the inference of knowledge and possession, it would have done so explicitly. See

Mitchell, 224 N.C. App. at 177, 735 S.E.2d at 443

      In the present case, while Defendant’s status as the driver might, like in Best,

be sufficient to uphold his conviction for possession of methamphetamine, the State

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                                    Opinion of the Court

also presented additional incriminating evidence to support an inference of

constructive possession. Such evidence included (1) Defendant’s frequent stops at

hotels and a gas station – indicative of drug transactions, (2) Defendant’s possession

of other controlled substances, and (3) the backpack in which the methamphetamine

was found contained Defendant’s personal belongings. Viewed in the light most

favorable to the State, there was sufficient evidence to support each element of

possession of methamphetamine.

       Like possession of the methamphetamine, possession of a firearm can be actual

or constructive. Alston, 131 N.C. App. at 519, 508 S.E.2d at 318. Since the firearm

in the present case was found under the passenger seat of the truck, and not in

Defendant’s physical or personal custody, the State was required to show constructive

possession. As with possession of a controlled substance, Defendant’s dominion and

control as the driver of the truck was sufficient to give rise to an inference of

constructive possession of the firearm. Mitchell, 224 N.C. App. at 177, 735 S.E.2d at

443.

       Defendant argues that his nonexclusive control over the truck required the

State to provide additional incriminating evidence. As discussed above, Defendant’s

status as the driver is sufficient to give rise to an inference of possession. Best, 214

N.C. App. at 53, 713 S.E.2d at 565. Nevertheless, the State presented additional

incriminating evidence sufficient to support a finding of constructive possession of

the firearm, including Defendant’s proximity to the firearm – both while in the

driver’s seat and while sitting directly above the gun when he was in the passenger’s

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                                      Opinion of the Court

seat – and his behavior consistent with the sale of drugs. Viewed in the light most

favorable to the State, there was sufficient evidence to support each element of

possession of a firearm by a felon.

                                  B.        Jury Charge

      Defendant further expressly contends the trial court erroneously omitted the

additional evidence standard from the jury instructions on constructive possession,

misleading the jury.    This Court reviews a challenge to a trial court’s decision

regarding jury instructions de novo, State v. King, 227 N.C. App. 390, 396, 742 S.E.2d

144, 149 (2009), and reviews the jury instructions in their entirety when determining

if there was error. State v. Blizzard, 169 N.C. App. 285, 297, 610 S.E.2d 245, 253

(2005).

             The charge will be held to be sufficient if it presents the
             law of the case in such manner as to leave no reasonable
             cause to believe the jury was misled or misinformed . . . .
             Under such a standard of review, it is not enough for the
             appealing party to show that error occurred in the jury
             instructions; rather, it must be demonstrated that such
             error was likely, in light of the entire charge, to mislead the
             jury.

Id. (quoting Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002)).

      Defendant contends the trial court’s failure to instruct the jury on the

additional incriminating evidence rule constitutes reversible error.           Defendant

argues the addition of the Mitchell standard and the omission of the additional

evidence standard misled the jury because they were instructed Defendant’s status

as the driver alone would raise the inference of constructive possession. However,


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                                    Opinion of the Court

the State presented the trial court with the supporting case law and the trial court

did not err in including the addition of the standard this Court articulated in Mitchell.

Because the jury was presented with additional evidence to consider and the trial

court instructed the jury that Defendant’s position as the driver of the truck might,

but did not necessarily, give rise to the inference of constructive possession, even

assuming arguendo the omission constituted error, it was not likely to mislead the

jury.

        The trial court’s instructions to the jury regarding constructive possession are

as follows:

              Members of the jury, if you find beyond a reasonable doubt
              that a substance or article was found in close physical
              proximity to [] [D]efendant, that would be a circumstance
              from which, together with other circumstances, you may
              infer that [] [D]efendant was aware of the presence of the
              substance or article and had the power and intent to
              control its disposition or use. However, [] [D]efendant’s
              physical proximity, if any, to the substance or article does
              not by itself permit an inference that [] [D]efendant was
              aware of its presence or had the power to control its
              disposition or use. Such an inference may be drawn only
              from this and other circumstances from which you find . . .
              from the evidence beyond a reasonable doubt.

              Further, I charge you, members of the jury, if you find
              beyond a reasonable doubt that a substance or article was
              found in a certain premises and that [] [D]efendant
              exercised control over those premises, whether or not []
              [D]efendant owned it, this would be a circumstance from
              which you may infer that [] [D]efendant was aware of the
              presence of the substance or article and had the power and
              intent to control its disposition or use.

              An inference of constructive possession can arise from
              evidence which tends to show that a defendant was the

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                                   Opinion of the Court

             custodian of a vehicle where the contraband was found.
             The driver of a borrowed car, like the owner of the car, has
             the power to control the content of the car. . . . Moreover,
             [] power to control the automobile where the contraband
             was found is sufficient in and of itself to give rise to the
             inference of knowledge and possession.             Inference,
             members of the jury, means you may so find but you are
             not required to do so.

These instructions were based on the pattern jury instructions for constructive

possession with additions from this Court’s decision in Mitchell and a mutually

agreed upon definition of the term inference.

      The State does not argue that Defendant had actual possession of either the

firearm or the illegal drugs. Therefore, if Defendant possessed the firearm or illegal

drugs, he did so constructively and the trial court’s inclusion of the pattern jury

instructions is appropriate. The State presented the trial court with supporting case

law for their requested addition of the Mitchell standard to the pattern jury

instructions. “‘[W]hen a request is made for a specific instruction, correct in itself

and supported by evidence, the trial court, while not obliged to adopt the precise

language of the prayer, is nevertheless required to give the instruction, in substance

at least[.]’” Minor v. Minor, 366 N.C. 526, 531, 742 S.E.2d 790, 793 (2013) (quoting

Calhoun v. Highway Com., 208 N.C. 424, 426, 181 S.E. 271, 272 (1935)). The Mitchell

standard, that the driver of a borrowed car has the requisite dominion and control

over the vehicle to support an inference of possession of the vehicle’s contents, has

been applied and upheld consistently by this Court. See Best, 214 N.C. App. at 47,




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                                    Opinion of the Court

713 S.E.2d at 562; State v. Hudson, 206 N.C. App. 482, 490, 696 S.E.2d 577, 583

(2010).

      Defendant argues the trial judge should have included language articulating

the additional evidence rule as described in the footnote of the pattern jury

instructions. N.C.P.I. – Crim. 104.41. n.1. While Defendant objected to the addition

of the Mitchell standard, he did not request that the additional evidence rule from

the footnote be included when the trial court specifically asked Defendant’s counsel

if he had any other objections to the jury instructions.

      Defendant argues that footnote 1 of the North Carolina Pattern Instructions

for constructive possession requires the additional evidence rule instruction when a

defendant’s control over the premises is nonexclusive. The footnote cites to four cases,

each of which are distinguishable from the present case, as none involve inferring

possession by the driver of a vehicle. State v. Thorpe, 326 N.C. 451, 453, 390 S.E.2d

311, 313 (1990) involved illegal drugs found in a pool hall; State v. Davis, 325 N.C.

693, 695, 386 S.E.2d 187, 188 (1989) focused on illegal drugs found inside a mobile

home; State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) involved illegal

drugs located inside an apartment; and State v. Harvey, 281 N.C. 1, 6, 187 S.E.2d

706, 710 (1972) dealt with illegal drugs found inside a home.     Defendant’s status as

the driver of the truck is more closely analogous to Mitchell; therefore, the trial court

made proper additions to the jury charge.

      Even assuming arguendo that the trial court erred in omitting the additional

evidence rule from the instructions, the State presented sufficient additional evidence

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                                    Opinion of the Court

such that the omission was not likely to mislead the jury. As noted above, the State

presented additional evidence that could lead a reasonable juror to believe that

Defendant was in constructive possession of both the firearm and methamphetamine.

Defendant was in close proximity to the handgun and was found with other illegal

drugs. The methamphetamine was found in a backpack with Defendant’s personal

belongings, he was found in actual possession of other illegal drugs, and he made

frequent stops at hotels, behavior commonly associated with drug activity. The jury

considered all of this evidence, in addition to Defendant’s status as the driver.

      Further, the trial court instructed the jury that inference means “you may so

find but you are not required to do so.” “We presume ‘that jurors . . . attend closely

the particular language of the trial court’s instructions in a criminal case and strive

to understand, make sense of, and follow the instructions given them.’” State v.

Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993) (quoting Francis v. Franklin,

471 U.S. 307, 324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985)). The jury was specifically

instructed that Defendant’s status as the driver did not require that the jury find

constructive possession.   Because the trial court correctly instructed the jury that

Defendant’s status as the driver was sufficient to support an inference of constructive

possession, and the jury was presented with additional evidence to consider that it

could infer constructive possession, Defendant has failed to meet his burden of

proving the jury instructions were likely to mislead the jury.

                                  III.     Conclusion



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                                   Opinion of the Court

      For the reasons stated above, we conclude there was sufficient evidence to

support Defendant’s convictions of possession of a firearm by a felon and possession

of methamphetamine. The trial court’s instructions on constructive possession were

not misleading and, therefore, were not reversible error.

      NO ERROR.

      Judges ELMORE and ARROWOOD concur.




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