                IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 142PA17

                                Filed 7 December 2018

 STATE OF NORTH CAROLINA

              v.
 TERANCE GERMAINE MALACHI



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 799 S.E.2d 645 (2017), finding prejudicial

error in a judgment entered on 28 January 2016 by Judge Yvonne Mims Evans in

Superior Court, Mecklenburg County, vacating defendant’s convictions, and granting

defendant a new trial. Heard in the Supreme Court on 29 August 2018.

      Joshua H. Stein, Attorney General, by John R. Green, Jr., Special Deputy
      Attorney General, for the State-appellant.

      Glenn Gerding, Appellate Defender, by Aaron Thomas Johnson, Assistant
      Appellate Defender, for defendant-appellee.


      ERVIN, Justice.

      The issue before the Court in this case is whether the Court of Appeals erred

by vacating the judgment entered by the trial court based upon defendant’s

convictions for possession of a firearm by a felon and having attained habitual felon

status on the grounds that the trial court had erroneously instructed the jury that it

could convict defendant based upon a constructive possession theory that lacked

sufficient evidentiary support. After careful consideration of the record in light of the

applicable law, we reverse the decision of the Court of Appeals and remand this case
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                                    Opinion of the Court



to that court for consideration of defendant’s remaining challenges to the trial court’s

judgment.

      Shortly after midnight on 14 August 2014, the Charlotte-Mecklenburg Police

Department received an anonymous call from a person who stated that he had just

seen an African-American male wearing a red shirt and black pants insert a handgun

into his pants while in the parking lot of Walker’s Express, a convenience store that

was located at 3416 Freedom Drive.                Upon arriving at Walker’s Express

approximately three minutes later, Officers Ethan Clark and Jason Van Aken of the

Charlotte-Mecklenburg Police Department saw approximately six to eight people

standing in the parking lot, including a man later identified as defendant, who was

the only person present who matched the description provided by the caller.

      As Officer Clark pulled his patrol vehicle into the parking lot, defendant looked

directly at the officer, “squared to [Officer Clark], and then immediately looked away

towards the ground, blading his body.”1 Upon making this observation, Officer Clark

and Officer Van Aken grabbed defendant’s arms and walked him out of the group

with which he had been standing. During that process, defendant “kept moving and

tugging” and “was very squirmy.” As the officers frisked and handcuffed defendant,

Officer Van Aken removed a revolver from the waistband on the right side of



      1 According to Officer Clark, the occurrence of “blading” suggests that the person in
question is attempting to conceal the fact that he or she has a weapon on his or her person
by adopting a stance that is perpendicular to the person or persons making the observation.


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defendant’s pants. Officer Kevin Hawkins arrived as Officer Van Aken was in the

process of taking the firearm into his custody. After Officer Van Aken seized the

firearm, defendant pointed to another individual in the parking lot and stated that

this individual had given him the firearm “and told him to hold on to it.”

      On 16 November 2015, the Mecklenburg County Grand Jury returned bills of

indictment charging defendant with possession of a firearm by a felon and carrying a

concealed weapon.    Previously, on 2 February 2015, defendant was indicted for

having attained habitual felon status. The charges against defendant came on for

trial before the trial court and a jury at the 19 January 2016 criminal session of the

Superior Court, Mecklenburg County. During the trial, defendant stipulated that he

had been convicted of a felony prior to 14 August 2014. At the jury instruction

conference, the State requested the trial court to instruct the jury in accordance with

N.C. Pattern Jury Instruction Crim. No. “104.41, actual possession.” Defendant

objected to the State’s request on the grounds that,

             when it gives the definition of possession it refers to actual
             or constructive. The [S]tate’s evidence was that it was
             actual possession; there was no constructive possession. . . .
             It’s not in terms of if it was near him or on him; there are
             witnesses stating it was on him, so therefore I would
             contend you should deny that instruction.

In overruling defendant’s objection, the trial court told the prosecutor that “I think

[the State] may have a good argument for actual, but nothing for constructive. And




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if the jury believes the witnesses, they’re going to believe actual possession, right?”

As a result, the trial court instructed the jury that:

                    Possession of an article may be either actual or
             constructive. A person has actual possession of an article
             if he has it on his person and is aware of its presence, or
             has both the power and intent to control its disposition or
             use. A person has constructive possession of an article if
             the person does not have it on his person but is aware of its
             presence and both the power and intent to control its
             disposition or use. A person’s awareness of an article and
             a person’s power and intent to control its disposition or use
             may be shown by direct evidence, or it may be inferred by
             the circumstances.

             ....

                    The [d]efendant has been charged with possessing a
             firearm after having been convicted of a felony. For you to
             find the [d]efendant guilty of this offense, the State must
             prove two things beyond a reasonable doubt.

                    First, that prior to August 14th, 2014, the
             [d]efendant was convicted of a felony that was committed
             in violation of the law of the State of North Carolina; and
             second, that thereafter the [d]efendant possessed a
             firearm. If you find from the evidence beyond a reasonable
             doubt that the [d]efendant was convicted of a felony i[n]
             Superior Court and that the [d]efendant thereafter
             possessed a firearm, it would be your duty to return a
             verdict of guilty. If you do not so find or have a reasonable
             doubt as to one or more of these things, it would be your
             duty to return a verdict of not guilty.

      As it deliberated, the jury requested “a legal definition of possession of a

firearm [and] a definition of a concealed weapon.” Before responding to the jury’s

inquiry, the trial court addressed the parties, stating that “I will re-read the definition



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of possession of firearm by a felon, and in that definition I’ll include actual and

constructive possession; and I will re-read the concealed weapon instruction.”

Defendant unsuccessfully renewed his objection to the trial court’s proposed

possession instruction “based on due process grounds, on the possession instruction.”

       On 21 January 2016, the jury returned a verdict convicting defendant of

possession of a firearm by a felon and acquitting him of carrying a concealed weapon.

Seven days later, defendant entered a plea of guilty to attaining habitual felon status.

Based upon the jury’s verdict and defendant’s guilty plea, the trial court entered a

judgment sentencing defendant to a term of 100 to 132 months imprisonment.

Defendant noted an appeal to the Court of Appeals from the trial court’s judgment.

       In seeking relief from the trial court’s judgment before the Court of Appeals,

defendant argued, among other things, that the trial court had erred by instructing

the jury that it could find him guilty of possession of a firearm by a felon on the basis

of a constructive possession theory. State v. Malachi, ___ N.C. App. ___, ___, 799

S.E.2d 645, 647 (2017).2 In awarding defendant a new trial on the basis of this

contention, the Court of Appeals began by determining that “the State’s evidence



       2  Defendant also argued that the trial court had erred by denying his motion to
suppress the firearm seized from his person. As a result of its decision to grant defendant a
new trial on the basis of the trial court’s decision to allow the jury to convict defendant on the
basis of the doctrine of constructive possession, the Court of Appeals did not reach defendant’s
search-related claim.




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supported an instruction only for actual possession and that the trial court

erroneously instructed the jury on constructive possession.”3 Id. at ___, 799 S.E.2d

at 649. After noting that “a trial judge should not give instructions to the jury which

are not supported by the evidence produced at the trial,” id. at ___, 799 S.E.2d at 648

(quoting State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied,

418 U.S. 905, 94 S. Ct. 3195, 41 L. Ed. 2d 1153 (1974)), and that “[o]ur courts [ ] have

consistently held that a trial court’s inclusion of a jury instruction unsupported by

the evidence presented at trial is an error requiring a new trial,” id. at ___, 799 S.E.2d

at 648, first citing State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990); and

then citing in the following order State v. Pakulski, 319 N.C. App. 562, 574, 356 S.E.2d

319, 326 (1987); State v. Johnson, 183 N.C. App. 576, 584-85, 646 S.E.2d 123, 128

(2007); State v. Hughes, 114 N.C. App. 742, 746, 443 S.E.2d 76, 79, disc. rev. denied,

337 N.C. 697, 448 S.E.2d 546 (1994); and State v. O’Rourke, 114 N.C. App. 435, 442,

442 S.E.2d 137, 140 (1994)), the Court of Appeals acknowledged that, in State v. Boyd,

366 N.C. 548, 742 S.E.2d 798 (2013), this Court had reversed a Court of Appeals

decision on the basis of a dissenting opinion stating that “errors [arising from trial



       3 Although the State argued “that the evidence was sufficient to support constructive
possession because during the time after officers removed the revolver from [d]efendant, he
theoretically could have broken free from the officers and taken hold of the revolver,” id. at
___, 799 S.E.2d at 649, the Court of Appeals determined that, even though “[d]efendant
certainly was aware of the presence of the revolver taken from him by police, no evidence was
presented that he had the power to control its disposition or use by the officers who had
secured it,” id. at ___, 799 S.E.2d at 650. The State has not attempted to bring this argument
forward for our consideration.


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court instructions allowing the jury to potentially convict a criminal defendant on the

basis of a legal theory lacking sufficient evidentiary support that were] not objected

to at trial are not plain error per se,” with “the burden [being instead] on the

defendant to show that [such] an erroneous . . . jury instruction had a probable impact

on the jury’s verdict,” id. at ___, 799 S.E.2d at 649 (citing Boyd, 222 N.C. App. 160,

173, 730 S.E.2d 193, 201) (2012) (Stroud, J., dissenting)). The Court of Appeals

interpreted our decision in Boyd to be limited to “plain error review” rather than

eliminating “the long established presumption that the jury relied on an erroneous

disjunctive instruction not supported by the evidence when given over an objection

by the defendant’s trial counsel.” Id. at ___, 799 S.E.2d at 649. As a result, since

Boyd “does not address erroneous disjunctive jury instructions given over the

objection of a defendant’s trial counsel” and since the jury’s verdict in this case did

not specify the theory upon which that body based its decision to convict defendant,

the Court of Appeals determined that defendant was entitled to a new trial based

upon the trial court’s erroneous decision to allow the jury to convict defendant on the

basis of constructive possession. Id. at ___, 799 S.E.2d at 649. In addition, the Court

of Appeals determined that defendant should receive a new trial “[e]ven if Boyd were

interpreted to eliminate the presumption of prejudice by jury instructions

unsupported by the evidence and objected to at trial” given that “there is a reasonable

possibility that the jury would have reached a different result had the trial court not




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provided instruction about the theory of constructive possession.” Id. at ___, 799

S.E.2d at 650.

      On 23 May 2017, the State filed a petition seeking discretionary review of the

Court of Appeals’ decision in this case. In seeking further review by this Court, the

State asserted that the trial court did not err by instructing the jury concerning the

doctrine of constructive possession because “ ‘actual possession’ is simply a subset of

the broader concept” of constructive possession. In addition, the State argued that

the Court of Appeals had misapplied Boyd and failed to conduct an appropriate

prejudice analysis. According to the State, Boyd established that, regardless of

whether a contemporaneous objection had been lodged at trial, “where an instruction

is given on alternative theories of an offense despite one of the theories being

unsupported, the erroneous instruction is to be analyzed for prejudice.” The State

contends that, although “plain error” analysis was appropriate in Boyd given the

defendant’s failure to object to the challenged instruction at trial, “[i]n this case,

where there was an objection, the prejudice analysis would properly take the form of

regular prejudicial error review.” As a result, the State requested this Court to grant

further review of the Court of Appeals’ decision and to determine that there was no

reasonable possibility that the jury convicted defendant on constructive possession

grounds in light of the state of the evidence.

      Defendant sought to dissuade the Court from granting discretionary review to

consider “three separate legal questions, each of which has been settled for decades.”


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As an initial matter, defendant argued that this Court had long distinguished

between actual and constructive possession. Secondly, defendant argued that “it is

erroneous to instruct the jury on a theory unsupported by evidence.”            Thirdly,

defendant urged this Court to reject the State’s assertion that errors resulting from

jury instructions allowing the jury to consider defendant’s guilt on the basis of a legal

theory that lacks sufficient evidentiary support should be subjected to a prejudice

analysis in lieu of “the per se error rule followed by this Court for at least three

decades.”   Finally, defendant asserted that the Court of Appeals had, in fact,

conducted a prejudice analysis and determined that there was “a reasonable

possibility that the jury would have reached a different result had the trial court not

provided instruction about the theory of constructive possession.” (Quoting Malachi,

___ N.C. App. at ___, 799 S.E.2d at 647). As a result, defendant urged this Court to

refrain from granting further review in this case.            We allowed the State’s

discretionary review petition on 1 November 2017.

      In seeking to persuade us to overturn the Court of Appeals’ decision, the State

begins by asserting that the Court of Appeals erred by finding that the trial court had

erroneously instructed the jury concerning the doctrine of constructive possession.

According to the State, actual and constructive possession, instead of being mutually

exclusive, “are definitions that partake of each other,” with “what we think of as

‘actual possession’ [being] simply a subset of the broader concept [of constructive

possession.]”   The State asserts that, “[o]riginally, possession meant physical


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custody,” with “constructive possession” constituting a “legal fiction” “employed to

cover those scenarios where possession ‘in the real sense of the word’ was not

present.” (Quoting 3 Wayne R. LaFave, Substantive Criminal Law § 19.1(a)(2) (2d

ed. 2003).)   Over time, however, the State contends that this Court has “used

constructive possession to broaden the scope of possessory crimes in general.” (First

citing State v. Myers, 190 N.C. 239, 243, 129 S.E. 600, 601 (1925); then citing State v.

Baxter, 285 N.C. 735, 738, 208 S.E.2d 696, 698 (1974).) “At some point, possession

itself adopted the more general definition—the power and intent to control,” (citing

State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 713 (1972)), so that “actual

possession” “became one form or subset of possession,” (citing State v. Perry, 316 N.C.

87, 96, 340 S.E.2d 450, 456 (1986)), with constructive possession becoming

“possession’s paradigm.”

      According to the State, the approach adopted by the Court of Appeals’ decision

in this case conflicts with its recognition in State v. Barkley, 233 N.C. App. 787, 759

S.E.2d 713, 2014 WL 1792716 (2014) (unpublished), that, “[r]ather than presenting

an alternative theory of the offense, as defendant claims, the instructions as given

simply provided the jury with an accurate legal definition of possession, which

includes both actual and constructive possession.”        (Citing Barkley, 2014 WL

1792716, at *4.) Similarly, the State contends that this Court has “recognized the

overlap” between the two concepts by acknowledging that “actual and constructive

possession ‘often so shade into one another that it is difficult to say where one ends


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and the other begins.’ ” (Quoting State v. McNeil, 359 N.C. 800, 808, 617 S.E.2d 271,

276 (2005).) As a result, the State concludes, “given this Court’s recognition that the

boundary between actual and constructive possession is indefinite and that evidence

of the one can constitute evidence of the other, the instructions given in this case were

not erroneous at all.”

      Secondly, the State argues that, even if actual and constructive possession

constitute “distinct theories” rather than “definitional components,” the Court of

Appeals misapplied Boyd by concluding that any error that the trial court might have

committed was prejudicial.     (Citing Boyd, 366 N.C. at 210, 739 S.E.2d at 838.)

According to the State, this Court’s decision in Boyd established that an error arising

from the delivery of an instruction concerning a theory of guilt devoid of sufficient

evidentiary support does not require an award of appellate relief unless the error in

question was prejudicial regardless of whether a contemporaneous objection was

lodged against the challenged instruction at trial. After acknowledging that Boyd

arose in a plain error, rather than a preserved error, context, the State asserts that

the only difference between these two situations stemmed from the nature of the

required prejudice analysis, with the relevant inquiry, in a case in which a

contemporaneous objection had been lodged at trial, being “whether, but for the

instruction on the unsupported theory, there was a reasonable possibility of a

different verdict.” (Citing N.C.G.S. § 15A-1443(a) (2015).)




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      According to the State, this Court had held, prior to Pakulski, that the

erroneous submission of an alternative theory of guilt that was not supported by

evidence was not always prejudicial. (Citing State v. Moore, 315 N.C. 738, 749, 340

S.E.2d 401, 408 (1986) (stating that “[i]t is generally prejudicial error for the trial

judge to permit a jury to convict upon a theory not supported by the evidence”).)

Although our decision in Pakulski relied upon State v. Belton, 318 N.C. 141, 165, 347

S.E.2d 755, 770 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647,

677, 483 S.E.2d 483, 414 (1997), cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed.

2d 177 (1997), the State asserts that the holding in Pakulski “that submission of an

alternative theory to the jury unsupported by evidence resulted in per se prejudice

even if overwhelming evidence supported the other theory submitted to the jury”

differed “significantly” “from Belton’s holding that submission of an alternative

theory to the jury supported by evidence but legally invalid resulted in per se

prejudice.”

      In addition, the State contends that the United States Supreme Court has

clarified that the decisions upon which this Court relied in Belton “do not apply to

instructions on an alternative theory of guilt unsupported by evidence” and only

apply “to instructions on an alternative theory of guilt supported by evidence but

otherwise legally unavailable.” In spite of its acknowledgment that the United States

Supreme Court’s decision in Griffin v. United States does not control the resolution

of the state law issue before us in this case, the State cites Griffin for the proposition


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that “a defendant is not entitled to a new trial when a jury returns a general verdict

of guilty that could have been premised on a theory for which insufficient evidence

was presented so long as another theory of guilt was supported by sufficient

evidence.” (Citing Griffin v. United States, 502 U.S. 46, 59, 112 S. Ct. 466, 474, 116

L. Ed. 2d 371, 383-84 (1991).) As a result, the State urges us to hold, in reliance upon

the logic of Griffin, that when a trial court instructs on an alternative theory of guilt

that lacks sufficient evidentiary support, defendant is not entitled to an award of

appellate relief in the absence of a showing of prejudice.

      Finally, the State argues that the Court of Appeals erred by holding, in the

alternative, that the trial court’s decision to allow the jury to convict defendant of

possession of a firearm by a felon on the basis of a constructive possession theory that

lacked sufficient evidentiary support prejudiced defendant. According to the State,

the record contains “overwhelming and uncontroverted evidence that defendant was

a felon and that he possessed a firearm—it was removed from his person and he

acknowledged to police that he had been holding it,” making it exceedingly doubtful

that the jury relied upon a theory of constructive possession, rather than actual

possession, in deciding to convict defendant.

      Defendant, on the other hand, asserts that this Court should affirm the Court

of Appeals’ decision. In defendant’s view, the State’s contention that this Court has

“erased” the distinction between actual and constructive possession is meritless. As

an initial matter, defendant notes that the State had failed to assert that “this Court,


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                                   Opinion of the Court



over time, has effectively dissolved this distinction” between actual and constructive

possession before either the trial court or the Court of Appeals. (Citing N.C. R. App.

P. 10(a), (c); id at R. 28(a).) Instead, defendant states that the State argued before

both the trial court and the Court of Appeals that “both theories of possession were

supported by sufficient evidence to submit them to the jury,” requested the trial court

to instruct the jury concerning both of these possible theories of guilt, and drew a

distinction between actual and constructive possession throughout its brief before the

Court of Appeals. In addition, defendant argues that, to the extent that the “trial

court erred by failing to instruct the jury in accordance with the [S]tate’s new

understanding of possession, that error was invited by the [S]tate,” given that the

State requested, “over repeated objection, that the trial court instruct the jury on both

actual and constructive possession.” (First citing Bell v. Harrison, 179 N.C. 190, 198,

102 S.E. 200, 204 (1920); then citing Frugard v. Pritchard, 338 N.C. 508, 512, 450

S.E.2d 744, 746 (1994); and then citing State v. McPhail, 329 N.C. 636, 643, 406

S.E.2d 591, 596 (1991)). As a result, for all of these reasons, defendant contends that

the State has waived the right to argue before this Court that actual and constructive

possession do not represent different theories of guilt.

      Secondly, defendant argues that the State’s attempt to describe actual

possession as a subset of constructive possession “runs counter to a century of

precedent from this Court,” ranging from our decision last year in State v. Jones, 369

N.C. 631, 634, 800 S.E.2d 54, 57 (2017) (holding that “this Court has stated that ‘[a]


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                                   Opinion of the Court



person is in constructive possession of a thing when, while not having actual

possession, he has the intent and capability to maintain control and dominion over

that thing’ ”) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)),

to our 1913 decision in State v. Lee, 164 N.C. 533, 535-36, 80 S.E. 405, 405-06 (1913)

(interpreting a statute prohibiting the possession of intoxicating liquors for sale as

encompassing both “actual and constructive possession”). As a result, defendant

contends that the State’s argument that the trial court did not err by instructing the

jury concerning the doctrine of constructive possession ignores “[a] century of

precedent [which] confirms that actual and constructive possession are mutually

exclusive because constructive possession, by definition, can only occur where actual

possession does not.”

      In addition, defendant contends that, even if the State’s defense of the trial

court’s constructive possession instruction is correct, the trial court’s decision to

deliver a constructive possession instruction to the jury was still erroneous.

According to defendant, it is “well established that ‘a trial judge should not give

instructions to the jury which are not supported by the evidence produced at the

trial.’ ” (Quoting Cameron, 284 N.C. at 171, 200 S.E.2d at 191.) Defendant argues

that the evidence, when taken in the light most favorable to the State, merely

suggested that defendant had actual possession of the firearm that was discovered on

his person. As a result, defendant claims that the trial court erred by instructing the

jury that it could convict defendant on the basis of a constructive possession theory.


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      Similarly, defendant contends that the Court of Appeals correctly held that the

trial court’s decision to deliver the erroneous constructive possession instruction was

“presumptively reversible.” According to defendant, a series of decisions by this Court

clearly demonstrates “the command of stare decisis” that a trial court’s decision to

instruct the jury on a theory of guilt unsupported by the evidence requires appellate

relief unless the reviewing court can conclusively determine from the record that the

jury did not rely upon the unsupported decision in deciding to convict the defendant.

(First citing State v. Petersilie, 334 N.C. 169, 193, 432 S.E.2d 832, 846 (1993); then

citing, in the following order, Lynch, 327 N.C. at 219, 393 S.E.2d at 816; Pakulski,

319 N.C. at 574, 356 S.E.2d at 326; Moore, 315 N.C. at 749, 340 S.E.2d at 408; State

v. Dammons, 293 N.C. 263, 272, 237 S.E.2d 834, 840 (1977); State v. Lee, 287 N.C.

536, 541, 215 S.E.2d 146, 149 (1975); State v. Duncan, 264 N.C. 123, 127, 141 S.E.2d

23, 26-27 (1965); State v. Knight, 248 N.C. 384, 389-90, 103 S.E.2d 452, 455-56

(1958).). In defendant’s view, neither this Court’s decision in Boyd, nor Pakulski’s

citation to Belton justify a departure from the rule “that it is reversible error for the

trial court to instruct the jury on a theory unsupported by the evidence.” Defendant

asserts that Pakulski was “neither the genesis nor the last statement of the [per se

reversible error] rule, but one of a decades-long series of cases from this Court

applying it.” For that reason, defendant argues that any attempt to distinguish

between the “legally-unsupported” jury instruction in Belton and the “factually-




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unsupported” jury instruction in Pakulski represents a misreading of this Court’s

precedent.

      In a similar vein, defendant rejects the State’s assertion that our recent

decision in Boyd applies to more than “unpreserved instructional and evidentiary

error” subject to a plain error standard of review. (Citing Boyd, 366 N.C. at 210, 739

S.E.2d at 838.) In view of the fact that defendant repeatedly objected to the delivery

of a constructive possession instruction at trial, defendant asserts that his challenge

to the trial court’s constructive possession instruction is simply not subject to plain

error review, rendering Boyd irrelevant to the proper resolution of this case. As a

result, defendant argues that the delivery of an erroneous instruction concerning a

theory of guilt that lacks sufficient evidentiary support is not subject to prejudicial

error analysis and necessarily requires an award of appellate relief.

      Defendant contends the “traditional rule,” which he describes as presuming

prejudice in instances in which a trial court instructs the jury concerning a theory of

guilt lacking sufficient evidentiary support, “accords with the purposes and

incentives governing preservation” by “urg[ing] both parties to speak up at trial

where errors can be corrected.” In the aftermath of Boyd, defendant claims that “[t]he

presumption that the jury convicted based on the unsupported legal theory” only

applies when the defendant objected to the delivery of the unsupported instruction

and “there is a general verdict, rather than a special verdict specifying the theory

underlying the conviction.” As a result, defendant argues that the “traditional rule”


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properly gives the State the incentive to request that the trial court instruct the jury

to render a special, rather than a general, verdict, thereby assuring that the jury

reached its decision on the basis of a correct understanding of the applicable law.

      Finally, even if this Court decides that the erroneous delivery of an instruction

allowing the jury to convict a defendant on the basis of a theory that lacks sufficient

record support is subject to prejudicial error analysis, defendant argues that the

Court of Appeals correctly determined that “there is a reasonable possibility that

there would have been a different outcome had the trial court instructed the jury

correctly.” According to defendant, the Court of Appeals correctly held that the trial

court’s decision to deliver a constructive possession instruction created a risk that the

jury would be confused about the meaning of “possession,” with the existence of such

confusion being evidenced by the jury’s request for a further instruction concerning

possession during the deliberation process. In addition, defendant suggests that the

jury could have had doubts about the credibility of the State’s evidence given its

decision to acquit defendant of carrying a concealed weapon and the existence of

evidence tending to show that Officer Van Aken had an altercation with defendant

that resulted in defendant’s hospitalization and the termination of Officer Van Aken’s

employment, that Officers Clark and Hawkins did not prepare their written

statements on the day of the incident underlying the charges that were lodged against

defendant or mention the altercation between Officer Van Aken and defendant in

their statements, that Officer Hawkins remained in contact with Officer Van Aken


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                                   Opinion of the Court



after the latter’s employment was terminated, and that no audio or video recordings

of the discovery of the firearm on defendant’s person had been made. As a result,

defendant urges us to uphold the Court of Appeals’ decision to award him a new trial.

      “It is well established that possession may be actual or constructive.” State v.

Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 348 (2012) (citing State v. Perry, 316 N.C.

87, 96, 340 S.E.2d 450, 456 (1986)). “Actual possession requires that a party have

physical or personal custody of the item.” State v. Alston, 131 N.C. App. 514, 519, 508

S.E.2d 315, 318 (1998) (citation omitted). “[A] person is in constructive possession of

a thing when, while not having actual possession, he has the intent and capability to

maintain control and dominion over that thing.” Jones, 369 N.C. at 634, 800 S.E.2d

at 57 (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)).

According to well-established North Carolina law, “it is error for the trial judge to

charge on matters which materially affect the issues when they are not supported by

the evidence.” State v. Jennings, 276 N.C. 157, 161, 171 S.E.2d 447, 449 (1970) (First

citing State v. Knight, 248 N.C. 384, 389-90, 103 S.E.2d 452 455-56 (1958); then citing

State v. McCoy, 236 N.C. 121, 124, 71 S.E.2d 921, 923 (1952)).

      Assuming, without in any way deciding, that the State has neither waived the

right to assert that actual possession is a subset of constructive possession nor invited

any error that the trial court might have made by treating actual and constructive

possession as separate concepts in its jury instructions, this Court has, as defendant

notes, long recognized a distinction between actual and constructive possession.


                                          -19-
                                  STATE V. MALACHI

                                   Opinion of the Court



Simply put, the prior decisions of this Court treat constructive possession as an

alternative means of showing the possession of an item necessary for guilt of certain

offenses that becomes available in the event that the State is unable to establish that

the defendant actually possessed an item. Although a person in actual possession of

an object might well have “the intent and capability to maintain control and dominion

over” that object, the essence of the two types of possession revolves around the extent

to which the person in question either did or did not physically have the object in his

or her possession, with there being no need for a showing of “the intent and capability

to maintain control and dominion over that object” in the event that the defendant

physically possessed the relevant item. As a result, we hold that the Court of Appeals

correctly determined that the trial court erred by allowing the jury to potentially

convict defendant of possession of a firearm by a felon on the basis of a constructive

possession theory.

      In awarding defendant a new trial, the Court of Appeals held, first, that the

trial court’s error was not subject to prejudicial error review and, then, that, even if

prejudicial error review were appropriate, the trial court’s erroneous constructive

possession instruction prejudiced defendant. In urging us to uphold the validity of

the first of these two decisions, defendant argues that an erroneous instruction

concerning a legal theory that lacks sufficient evidentiary support is “presumptively




                                          -20-
                                      STATE V. MALACHI

                                      Opinion of the Court



erroneous”4 and requires automatic reversal, with this assertion resting upon

defendant’s interpretation of a series of decisions by this Court. In other words,

defendant argues that the extent to which a prejudice inquiry should be conducted in

cases involving errors such as the one at issue here has already been resolved, so that

the Court of Appeals’ decision must be upheld on stare decisis grounds.

       Admittedly, the decisions upon which defendant relies in attempting to

establish that this Court has adopted an automatic reversal rule consistently grant

appellate relief in the event that a trial judge allows the jury to convict a defendant

on the basis of a legal theory that lacks sufficient evidentiary support without



       4  In his brief, defendant appears to use the terms “presumptively erroneous” and “per
se erroneous” as if they were synonymous.              As this Court has previously noted,
“[p]resumption is a term which is often loosely used.” Henderson Couty v. Osteen, 297 N.C.
113, 117, 254 S.E.2d 160, 163 (1979). As a general proposition, evidentiary presumptions are
either “permissive,” “conclusive,” or “mandatory,” with a permissive presumption involving
a situation in which, once “the basic fact underlying the presumption has been established,”
“the presumed fact may or may not be found,” Dobson v. Harris, 352 N.C. 77, 82 n.3, 530
S.E.2d 829, 835 n.3 (2000); a mandatory presumption, which may or may not be rebuttable,
involving a situation in which, “[once] the basic fact has been established, the presumed . . .
fact must be found unless sufficient evidence of its nonexistence is forthcoming,” id. at 82 n.3,
530 S.E.2d at 835 n.3 (alterations in original) (quoting Kenneth S. Broun, Brandis & Broun
on North Carolina Evidence § 44, at 148 (5th ed. 1998)); and a conclusive presumption being
another term for an irrebutable mandatory presumption, State v. Reynolds, 307 N.C. 184,
189, 297 S.E.2d 532, 535 (1982) (stating that “[a] conclusive presumption provides that upon
proof of the basic fact, the presumed fact must be found and cannot be overcome by rebutting
evidence” (quoting John M. Schmolesky, County Court of Ulster County v. Allen and
Sandstrom v. Montana: The Supreme Court Lends an Ear but Turns Its Face, 33 Rutgers L.
Rev. 261, 265 (1981))). As we understand defendant’s argument, the presumption arising
from the delivery of an instruction authorizing the jury to convict the defendant on the basis
of a legal theory lacking sufficient evidentiary support to which the defendant made a
contemporaneous objection is a conclusive one—if such an event occurs, a new trial must be
awarded without any further inquiry.



                                              -21-
                                     STATE V. MALACHI

                                      Opinion of the Court



explicitly engaging in any sort of prejudice inquiry. On the other hand, none of the

decisions upon which defendant relies explicitly holds that a prejudice inquiry would

be inappropriate in such instances,5 and a number of them contain language that

suggest that such a prejudice analysis should be conducted. Moore, 315 N.C. at 749,

340 S.E.2d at 408 (stating that “[i]t is generally prejudicial error for the trial judge to

permit a jury to convict upon a theory not supported by the evidence”); Dammons,

293 N.C. at 272, 237 S.E.2d at 840 (stating that “[i]t is error, generally prejudicial,

for the trial judge to permit a jury to convict upon some abstract theory not supported

by the evidence”); Lee, 287 N.C. at 541, 215 S.E.2d at 149 (stating that “where the

trial court in a criminal case permits the jury to return a verdict of guilty upon a legal

theory or a state of facts not supported by the evidence it is prejudicial error entitling


       5  This Court did discuss the harmless error issue in Pakulski, in which the State
sought a finding of non-prejudice on the grounds that “the jury could have based its verdict
solely on the robbery felony.” Pakulski, 319 N.C. at 574, 356 S.E.2d at 326. After noting that
“the verdict form does not reflect the theory upon which the jury based its finding of guilty of
felony murder” and that “we cannot discern from the record upon which theory the jury
relied,” this Court declined to “assume that the jury based its verdict on the theory for which
it received a proper instruction.” Id. at 574, 356 S.E.2d at 326. However, given that the
State’s evidence tying defendant to the homicide for which he was convicted consisted of little,
if anything, more than accomplice testimony and given that the defendant presented both
alibi evidence and other testimony challenging the accomplice’s credibility, id. at 566-67, 356
S.E.2d at 322-23, the evidence of defendant’s guilt was clearly subject to serious dispute.
Similarly, in Lynch, the record contained evidence which a juror might have mistakenly
believed to support the lying in wait theory that the Court ultimately determined to lack
adequate evidentiary support, while the State’s evidence of defendant’s guilt on the basis of
malice, premeditation, and deliberation was essentially circumstantial in nature. Lynch, 327
N.C. at 214-15, 393 S.E.2d at 813-14. As a result, neither of these decisions explicitly rejects
the use of harmless error analysis in similar circumstance, while the outcomes in both cases
are consistent with what seems to us to be an appropriately conducted harmless error
analysis.


                                             -22-
                                     STATE V. MALACHI

                                     Opinion of the Court



the defendant to a new trial”); Knight, 248 N.C. at 389-90, 103 S.E.2d at 455-56

(stating that the trial court’s instructions, which “permitted the jury to rest its verdict

on a theory not supported by the evidence,” “was calculated to prejudice, and may

have prejudiced, the defendant”).6 As a result, given that our existing jurisprudence

does not conclusively establish that existing North Carolina law encompasses an

automatic reversal rule of the type contended for by defendant, we must determine

whether we should adopt such a rule.7

       As this Court has said on numerous occasions, litigants are not entitled to

receive “perfect” trials; instead, they are entitled to receive “a fair trial, free of

prejudicial error.” State v. Ligon, 332 N.C. 224, 243, 420 S.E.2d 136, 147 (1992). “In

order to obtain a new trial it is incumbent on a defendant to not only show error but

also to show that the error was so prejudicial that without the error it is likely that a

different result would have been reached.” State v. Loren, 302 N.C. 607, 613, 276

S.E.2d 365, 369 (1981); see also State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631,



       6 Similar language, which could be construed as dicta, appears in State v. Dick, 370
N.C. 305, 308, 807 S.E.2d 545, 547 (2017), which cites Lynch, 327 N.C. at 219, 393 S.E.2d at
816, for the proposition that “insufficient evidence regarding one theory submitted to the
jury, when prejudicial, was reversible error requiring [a] new trial.”

       7 The State has argued, in reliance upon Griffin and Belton, that an automatic reversal
rule arising from an instruction allowing the jury to convict a criminal defendant on an
invalid legal theory would only be appropriate in the event that the legal theory in question
was unavailable to the State as a matter of law rather than because that theory lacked
sufficient evidentiary support. We do not find this argument persuasive given this Court’s
repeated decisions to grant appellate relief in cases in which the trial court allowed the jury
to convict the defendant based upon a legal theory that lacked sufficient record support.


                                             -23-
                                     STATE V. MALACHI

                                     Opinion of the Court



644 (1983) (stating that “[t]he defendant is not entitled to a new trial based on trial

errors unless such errors were material and prejudicial”); State v. Galloway, 304 N.C.

485, 496, 284 S.E.2d 509, 516 (1981) (stating that “[i]t has long been the rule in this

jurisdiction that not every erroneous ruling on the admissibility of evidence will

result in a new trial being ordered,” with the burden being “on the appellant not only

to show error but also to show that there is a reasonable possibility ‘that, had the

error in question not been committed, a different result would have been reached at

the trial.’ ”) (quoting N.C.G.S. § 15A–1443 (1978)). “The harmless-error doctrine

recognizes the principle that the central purpose of a criminal trial is to decide the

factual question of the defendant’s guilt or innocence” and “promotes public respect

for the criminal process by focusing on the underlying fairness of the trial rather than

on the virtually inevitable presence of immaterial error.” Rose v. Clark, 478 U.S. 570,

577, 106 S. Ct. 3101, 3105, 92 L. Ed. 2d 460, 470 (1986) (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674, 684-85 (1986)

(first citing, United States v. Nobles, 422 U.S. 225, 230, 95 S. Ct. 2160, 2166, 45 L.

Ed. 2d 141, 148 (1975); then citing R. Traynor, The Riddle of Harmless Error 50

(1970))).8 As a result, a showing of prejudice is generally required before appellate

relief is granted in this jurisdiction.


       8 Although we agree with defendant that our recent decision in Boyd, which was made
in a plain error context, does not control the outcome of this case given that defendant
properly preserved his challenge to the trial court’s erroneous constructive possession
instruction for purposes of appellate review, it does tend to call into question any contention


                                             -24-
                                    STATE V. MALACHI

                                     Opinion of the Court



       An automatic reversal rule has, however, been deemed appropriate in some

circumstances. As the United States Supreme Court has stated in discussing the

concept of structural error, “ ‘while there are some errors to which [harmless-error

analysis] does not apply, they are the exception and not the rule,’ ” with “harmless-

error analysis [being applicable] to instructional errors so long as the error at issue

does not categorically ‘ “vitiat[e] all the jury’s findings” ’ ” and with “[a]n instructional

error arising in the context of multiple theories of guilt no more vitiat[ing] all the

jury’s findings than does omission or misstatement of an element of the offense when

only one theory is submitted.” Hedgepeth v. Pulido, 555 U.S. 57, 61, 129 S. Ct. 530,

532, 172 L. Ed. 2d 388, 391-92 (2008) (per curiam) (first alteration in original) (first

quoting Clark, 478 U.S. at 578, 106 S. Ct. at 3106, 92 L. Ed. 2d at 471; and then

quoting Neder v. United States, 527 U.S. 1, 11, 119 S. Ct. 1827, 1834, 144 L. Ed. 2d

35, 48 (1999) (third alternation in original) (quoting Sullivan v. Louisiana, 508 U.S.

275, 281, 113 S. Ct. 2078, 2082, 124 L. Ed. 2d 182, 190-91 (1993)).9 Similarly, this


that harmless error concepts are completely irrelevant to errors such as the one at issue in
this case and to suggest that our usual approach to harmless error analysis, under which
unpreserved errors are reviewed under a plain error standard of review while errors that
were the subject of a contemporaneous objection at trial are reviewed for harmlessness under
the standards enunciated in either N.C.G.S. § 15A-1443(a) or N.C.G.S. § 15A-1443(b), applies
in cases like this one.

       9 We do not, of course, wish to be understood as treating the United States Supreme
Court’s structural error jurisprudence as controlling with respect to the issue of when, under
North Carolina’s law, harmless error analysis is and is not appropriate. Instead, as is
discussed more fully in the text of this opinion, “North Carolina courts also apply a form of
structural error known as error per se,” under which “error per se is automatically deemed
prejudicial and thus reversible without a showing of prejudice.” State v. Lawrence, 365 N.C.


                                            -25-
                                    STATE V. MALACHI

                                     Opinion of the Court



Court has treated some errors as being sufficiently serious as to merit an award of

appellate relief without the necessity for a showing of prejudice. State v. Hucks, 323

N.C. 574, 581, 374 S.E.2d 240, 245 (1988) (holding that a failure to appoint two

counsel to represent a defendant in a capital trial constitutes prejudicial error per

se); State v. Mitchell, 321 N.C. 650, 659, 365 S.E.2d 554, 559 (1988) (holding that a

trial court’s “refusal to permit both [of the defendant’s trial] counsel to address the

jury during the defendant’s final arguments constitute[d] prejudicial error per se in

both the guilt-innocence and sentencing phases” of the defendant’s capital trial); State

v. Bindyke, 288 N.C. 608, 627, 220 S.E.2d 521, 533 (1975) (holding that the presence

of an alternate juror in the jury room during deliberations constitutes prejudicial

error per se). However, this Court has generally refrained from finding prejudicial

error per se even in the face of serious evidentiary and instructional errors. For

example, this Court has deemed errors such as the admission of “other bad acts

evidence” in violation of N.C.G.S. § 8C-1, Rule 404(b), see State v. McKoy, 317 N.C.

519, 529, 347 S.E.2d 374, 380 (1986) (holding that the admission of evidence tending

to show other criminal conduct on the part of one of the defendants involved in a




506, 514, 723 S.E.2d 326, 331-32 (2012) (first citing N.C.G.S. § 15A–1443(a) (2009); then
citing State v. Parker, 350 N.C. 411, 421, 426, 516 S.E.2d 106, 114, 117 (1999), cert. denied,
528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000); and then citing State v. Brown, 325
N.C. 427, 428, 383 S.E.2d 910, 910 (1989) (per curiam)). As a result of the fact that “federal
structural error and state error per se have developed independently,” Lawrence, 365 N.C. at
514, 723 S.E.2d at 332, the same error might or might not be deemed structural by the federal
courts and error per se by the North Carolina courts.


                                            -26-
                                  STATE V. MALACHI

                                  Opinion of the Court



multi-defendant trial in violation of N.C.G.S. § 8C-1, Rule 404(b) constituted

harmless error with respect to both that defendant and a codefendant), a violation of

a defendant’s constitutional right to be informed of his rights under Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), see State v. Hicks, 333

N.C. 467, 481, 428 S.E.2d 167, 175 (1993) (holding that, in light of “the extremely

incriminating evidence properly admitted at trial,” “the admission of the defendant’s

first confession in violation of the Miranda exclusionary rule was harmless beyond a

reasonable doubt”), abrogated on other grounds by State v. Buchanan, 353 N.C. 332,

340, 543 S.E.2d 823, 828 (2001)), a violation of the defendant’s right to confront the

witnesses for the prosecution, see State v. Ortiz-Zape, 367 N.C. 1, 13-14, 743 S.E.2d

156, 164-65 (2013) (holding, in the alternative, that any violation of the defendant’s

confrontation rights resulting from the admission of expert witness opinion testimony

that analyzed data from lab tests performed by another chemist was harmless beyond

a reasonable doubt), cert. denied, 572 U.S. 1134, 134 S. Ct. 2660, 189 L. Ed. 2d 208

(2014)), and the omission of an element of the crime charged from the trial court’s

substantive instructions to the jury, see State v. Bunch, 363 N.C. 841, 845, 689 S.E.2d

866, 869 (2010) (holding “that the trial court’s omission of elements of a crime in its

recitation of jury instructions is reviewed under the harmless error test”), to be

subject to harmless error analysis. The instructional error under consideration in

this case more closely resembles the types of errors in which a showing of prejudice

is required before an award of appellate relief is deemed appropriate than the


                                         -27-
                                   STATE V. MALACHI

                                    Opinion of the Court



fundamental, difficult to evaluate, errors that this Court has deemed to constitute

prejudicial error per se, and defendant has failed to demonstrate why the

instructional error at issue in this case should be treated differently than similar

instructional errors. As a result, like the United States Supreme Court, we are not

persuaded that the error at issue in this case is so potentially serious as to justify

adopting an automatic reversal rule, which essentially treats errors like the one at

issue in this case as prejudicial error per se.

      The only argument advanced in defendant’s brief in support of the adoption of

an automatic reversal rule other than the assertion that this Court’s prior decisions

require such a decision is a contention that such an automatic reversal rule, as

modified in Boyd, “recognizes the nature of the error and the simple steps that can be

taken to address any resulting harm.” In essence, defendant argues that, under the

automatic reversal rule as modified by Boyd, “[t]he presumption that the jury

convicted on the unsupported legal theory [ ] applies only where there is a general

verdict rather than a special verdict specifying the theory underlying the conviction.”

In defendant’s view, “[i]f, despite an objection, the [S]tate insists on an unsupported

theory,” it “can request a special verdict specifying the theory on which the jury

convicted,” with this “minimal step” “cost[ing] the [S]tate virtually nothing.”

According to defendant, it is only fair to place the burden of requesting the use of a

special verdict upon the State, since it “is the party requesting the unsupported jury

instruction” “over objection” and should “bear the responsibility of curing the


                                           -28-
                                  STATE V. MALACHI

                                   Opinion of the Court



problems the unsupported instruction would cause” and since placing the burden on

defendant to request a special instruction may result in a decision that defendant

“has abandoned her original objection” or “joined in requesting the instruction.” As

a result, defendant contends that “[a] rule presuming prejudice where the defendant

has objected to the unsupported instruction [ ] puts the incentives in all of the right

places,” with defendant being given an incentive to object in order to either preclude

the delivery of the unsupported instruction or permit “[t]he resulting error [to] be

corrected on appellate review” and with the State being given “an incentive to request

a special verdict form to cure the problem it created.”

      We are not persuaded by defendant’s incentive-based argument. As an initial

matter, defendant’s argument rests upon the apparent assumption that the only way

in which the delivery of an instruction allowing defendant’s conviction on the basis of

an unsupported legal theory could ever be deemed harmless is in the event that the

reviewing court is provided with an ironclad guarantee that the jury did not rely upon

the unsupported legal theory in deciding to convict defendant. Needless to say,

insistence upon such a guarantee would not be consistent with this Court’s usual

approach to the resolution of harmless error-related issues, which the relevant

statutory language indicates must rest upon an assessment of the likelihood that the

outcome at trial would have been different had an error not occurred. In addition,

defendant’s argument overlooks the fact that errors like the one at issue here do not

necessarily occur at the behest of the State. On the contrary, the trial court may elect


                                          -29-
                                  STATE V. MALACHI

                                   Opinion of the Court



to deliver an instruction like the one at issue here on its own motion or even over the

State’s objection. Moreover, the trial court might reject a request by the State for the

submission of a special verdict form to the jury. Even so, defendant’s approach

suggests that an automatic reversal would be appropriate in each of those instances.

Finally, defendant fails to take into account the fact that, as long as a defendant

lodges a contemporaneous objection to the delivery of an instruction like the one at

issue here, the defendant’s claim will be reviewed utilizing the more easily satisfied

“reasonable possibility” standard set out in N.C.G.S. § 15A-1443(a) instead of the

more stringent “reasonable probability” standard enunciated for use in “plain error”

situations in Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (stating that, in order to

establish plain error, “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’ ” (first quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983); then citing State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83

(1986))). On the other hand, in the event that the State failed to seek to obtain the

submission of a special verdict form or failed to persuade the trial court to submit

one, it would have passed up a chance to potentially eliminate any need for the

reviewing court to undertake a “reasonable possibility” analysis. Defendant’s implicit

argument to the contrary notwithstanding, the approach to the harmless error issue

that we deem to be appropriate in this case does, in fact, provide the State with an

incentive to ask that the jury be required to return a special verdict. As a result, for


                                          -30-
                                    STATE V. MALACHI

                                    Opinion of the Court



all of these reasons, we hold that defendant’s challenge to the delivery of the trial

court’s unsupported constructive possession instruction is subject to traditional

harmless error analysis.

       As a general proposition, a defendant seeking to obtain appellate relief on the

basis of an error to which he or she lodged an appropriate contemporaneous objection

at trial must establish that “there is a reasonable possibility that, had the error in

question not been committed, a different result would have been reached at the trial

out of which the appeal arises.” N.C.G.S. § 15A-1443(a) (2017).10 However, the

history of this Court’s decisions in cases involving the submission of similar erroneous

instructions and our consistent insistence that jury verdicts concerning a defendant’s

guilt or innocence have an adequate evidentiary foundation persuade us that

instructional errors like the one at issue in this case are exceedingly serious and merit

close scrutiny to ensure that there is no “reasonable possibility” that the jury

convicted the defendant on the basis of such an unsupported legal theory. However,

in the event that the State presents exceedingly strong evidence of defendant’s guilt



       10 Defendant suggests that the Court should treat the trial court’s decision to allow
the jury to convict defendant on the basis of a constructive possession theory as a
constitutional violation subject to harmless review pursuant to N.C.G.S. § 15A-1443(b)
(requiring the State to show that the alleged error was harmless beyond a reasonable doubt).
In view of the fact that the Court of Appeals did not find that the trial court’s error was
constitutional in nature and the fact that defendant did not petition this Court to allow
consideration of such a constitutional issue, we decline to adopt defendant’s alternative
argument concerning the manner in which the required harmless error analysis should be
conducted.



                                           -31-
                                    STATE V. MALACHI

                                     Opinion of the Court



on the basis of a theory that has sufficient support and the State’s evidence is neither

in dispute nor subject to serious credibility-related questions, it is unlikely that a

reasonable jury would elect to convict the defendant on the basis of an unsupported

legal theory.11

       According to the undisputed evidence elicited at trial, investigating officers

went to a convenience store parking lot after receiving a report that an individual

possessed a firearm and discovered such a weapon while searching an individual who

matched the description of the person in question and who turned out to be defendant.

In the event that the jury found this undisputed evidence to be credible beyond a

reasonable doubt, it would have been required, under the trial court’s instruction, to

convict defendant of possession of a firearm by a felon on the basis of an actual

possession theory. As a result, the ultimate issue before this Court is whether there

is a reasonable possibility that the jury would have sufficiently questioned the

credibility of the investigating officers’ testimony to return a verdict of acquittal.



       11 According to defendant, the State waived the right to argue that the trial court’s
error was harmless on the grounds that the State had failed to advance such an argument in
its discretionary review petition. Admittedly, the question to be presented stated in the
State’s petition refers to the Court of Appeals’ “fail[ure] to conduct a prejudice analysis.”
However, the State’s petition contained an argument heading asserting that the Court of
Appeals had “fail[ed]to conduct a prejudice analysis in accord with” Boyd and Griffin and an
argument that there was no “reasonable possibility” that the jury would have convicted
defendant on the basis of a constructive possession theory “since the evidence was
uncontroverted that defendant possessed the firearm” given that “it was removed from his
person and he acknowledged to police that he was holding it.” As a result, we conclude that
the issue of whether the delivery of the constructive possession instruction constituted
prejudicial error is properly before us.


                                            -32-
                                  STATE V. MALACHI

                                   Opinion of the Court



      Defendant claims that the jury could have questioned the credibility of the

investigating officers’ testimony for a number of reasons, including the injuries that

Officer Van Aken inflicted upon defendant during a post-arrest altercation, the fact

that Officer Van Aken’s employment was terminated and that he was charged with

assaulting defendant based upon this post-arrest altercation, the fact that the

statements provided by various officers were not written immediately after

defendant’s arrest, and the fact that the officers’ interactions with defendant were

not recorded and that the other officers remained in contact with Officer Van Aken

after his termination. Almost all of the reasons that defendant has advanced in

support of his contention that the testimony of the investigating officers is subject to

serious question rest upon events that occurred after defendant was placed under

arrest for possessing a firearm. For that reason, defendant’s implicit suggestion that

investigating officers attempted to “frame” defendant in order to protect Officer Van

Aken seems to us to rest upon a logical inconsistency. Moreover, while defendant’s

arguments predicated upon the officers’ failure to record their interaction with

defendant and the delay in the drafting of their reports cannot be dismissed upon the

basis of similar logic, they do not strike us as particularly compelling. Finally, the

Court of Appeals’ emphasis upon the fact that the jury asked for further instructions

concerning the possession issue and the fact that the jury acquitted defendant of

carrying a concealed weapon does not tend to show prejudice, at least in our opinion,

given the absence of any explanation for why the jury might have sought clarification


                                          -33-
                                  STATE V. MALACHI

                                  Opinion of the Court



about the meaning of possession and the fact that guilt of carrying a concealed

weapon, unlike the charge of possession of a firearm by a felon, requires proof of

intentional concealment. State v. Gilbert, 87 N.C. 527, 528 (1882) (stating that “[t]o

conceal a weapon[ ] means something more than the mere act of having it where it

may not be seen” and “implies an assent of the mind, and a purpose to so carry it, that

it may not be seen”). As a result, defendant has not satisfied us that there is a

reasonable possibility that, in the absence of the erroneous constructive possession

instruction, the jury would have acquitted defendant.

      Thus, for all of these reasons, we hold that the Court of Appeals erred by

holding that challenges to jury instructions allowing juries to convict criminal

defendants on the basis of legal theories that lack evidentiary support are not subject

to harmless error analysis and by holding that, even if such a harmlessness analysis

were appropriate, there was a reasonable possibility that the outcome at defendant’s

trial would have been different had the trial court refrained from allowing the jury to

convict defendant on the basis of a constructive possession theory. As a result, the

Court of Appeals’ decision in this case is reversed and this case is remanded to the

Court of Appeals for consideration of defendant’s remaining challenges to the trial

court’s judgment.


      REVERSED AND REMANDED.




                                         -34-
      Justice MORGAN dissenting.


      While I agree with my learned colleagues in the majority that the Court of

Appeals correctly determined that the trial court erred by allowing the jury to

potentially convict defendant of the offense of possession of a firearm by a felon on

the basis of a constructive possession theory, I nonetheless disagree with their

conclusion that the lower appellate court erred in its determination that there was a

reasonable possibility that the outcome of defendant’s trial would have been different

if the trial court had refrained from allowing the jury to potentially convict defendant

on the basis of a theory of constructive possession. Based on my position, I am

inclined to affirm the Court of Appeals’ decision to vacate the trial court’s judgment

and grant defendant a new trial.

      My departure from the majority in this case stems from the liberties that I

believe the majority improperly takes to discount the reasonable possibility that, had

the error of the submission of the constructive possession of firearm by defendant not

been submitted to the jury as a theory for his guilt, a different result would have been

reached at the trial out of which this appeal arises. The majority expressly utilizes

“close scrutiny to ensure that there is no ‘reasonable possibility’ that the jury

convicted the defendant on the basis of such an unsupported legal theory”—namely,

constructive possession—while introducing a new evaluative standard that “in the

event that the State presents exceedingly strong evidence of defendant’s guilt on the
                                      STATE V. MALACHI

                                      Morgan, J., dissenting



basis of a theory that has sufficient support and the State’s evidence is neither in

dispute      nor   subject   to   serious   credibility-related   questions”—here,   actual

possession—“it is unlikely that a reasonable jury would elect to convict the defendant

on the basis of an unsupported legal theory.” (Emphasis added.) As I assess this

newly minted doctrine by the majority cobbled together from selected principles

enunciated in our decisions of Bradshaw, Jones, Ligon, Loren, Alston, and Galloway,

coupled with the majority’s willingness to couch the trial jury’s ability to “potentially

convict defendant of the offense of possession of a firearm by a felon on the basis of a

constructive possession theory” as insufficient wrongful exposure to warrant a new

trial for defendant, my recognition of the fundamental concepts of trial evidence, the

application of the appropriate law to the evidence, and the respective roles of the

judicial forum and the jury leads me in a different direction from my fellow jurists in

this case.

      “Every criminal conviction involves facts (i.e., what actually occurred) and the

application of the law to the facts . . . . In a jury trial the judge instructs jurors on

the law, and the jury finds the facts and applies the law.” State v. Arrington, ___ N.C.

___, ___, 819 S.E.2d 329, 331 (2018). Courts must not “invade the province of the

jury, which is to assess the credibility of the witnesses and determine the facts from

the evidence adduced.” State v. Rhodes, 290 N.C. 16, 24, 224 S.E.2d 631, 636 (1976)

(first citing State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954); and then citing 7

Strong’s North Carolina Index 2d Trial § 18 (1968)); see also State v. Ward, 364 N.C.


                                               -2-
                                   STATE V. MALACHI

                                  Morgan, J., dissenting



133, 153, 694 S.E.2d 738, 750 (2010) (Newby, J., dissenting) (observing that “it is the

role of the jury to make any final determination regarding the weight to be afforded

to the evidence” (quoting Crocker v. Roethling, 363 N.C. 140, 150, 675 S.E.2d 625, 632

(2009) (Martin, J., concurring)). By opining upon the reasonableness of the jury’s two

potential theories underlying a verdict of guilty, when there is no evidence to support

one theory and sufficient evidence to support the other theory, the majority is

engaging in an exercise that invades the established province of the jury. I do not

consider it to be within a judicial forum’s proper purview to sift through the evidence

and to speculate as to which theory, between or among multiple ones, a jury

considered to be persuasive to reach its verdict, yet the majority has effectively done

so here.

      In a similar vein, the majority states that “the ultimate issue before this Court

is whether there is a reasonable possibility that the jury would have sufficiently

questioned the credibility of the investigating officers’ testimony to return a verdict

of acquittal.” “[A]ssess[ing] the credibility of the witnesses” is a matter for the jury.

Rhodes, 290 N.C. at 24, 224 S.E.2d at 636. While the majority acknowledges that

“defendant suggests that the jury could have had doubts about the credibility of the

State’s evidence” regarding the investigating law enforcement officers, nonetheless,

the members of the majority assess the manner in which the trial jury could have

determined issues of credibility with respect to the submitted theories of defendant’s

culpability and conclude that it “seems to us to rest upon a logical inconsistency.”


                                           -3-
                                 STATE V. MALACHI

                                 Morgan, J., dissenting



Just as this Court in the case at bar should refrain from conducting a review of the

potential effect of erroneous jury instructions upon a jury’s verdict of guilty by

invading the province of the jury as to which submitted legal theory may have

prompted its finding of guilty, this Court should also take care to refrain from

conducting such a review by invading the province of the jury by conducting its own

examination of witness credibility issues.

      For the reasons stated, I would affirm the decision of the Court of Appeals in

this case.




                                          -4-
