An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                               NO. COA13-1025
                       NORTH CAROLINA COURT OF APPEALS

                                 Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              Nos. 11 CRS 9216, 218802
CARL DUVEE BARKLEY



      Appeal by defendant from judgments entered 31 January 2013

by Judge Paul C. Ridgeway in Wake County Superior Court.                      Heard

in the Court of Appeals 7 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Amanda P. Little, for the State.

      Mark L. Hayes for defendant-appellant.


      ELMORE, Judge.


      Carl    Duvee    Barkley     (defendant)      appeals     from    judgments

entered upon his convictions for possession of a firearm by a

felon and manufacture of marijuana.              Defendant contends that the

trial      court   erred    by   denying     his    motion     to   dismiss     the

possession of a firearm charge and committed plain error in its

jury instructions on that charge.            We find no error.

                                        I. Facts
                                                  -2-



          On    11    August       2011,       Raleigh    Police     Department        Detective

Frank Patercity was conducting a drug investigation involving

defendant and obtained a search warrant for the residence, a

single-wide trailer, where he believed defendant lived.                                      Before

the investigating officers executed the warrant, they observed

defendant’s           car    in     the    trailer’s       driveway,      then    left       for    a

briefing.            When the officers returned to the house five minutes

later, defendant’s car was gone.

          One    team       of     officers       secured      the     trailer,       then    drug

detectives searched it.                    No one was home in the trailer at the

time, although a tenant was present in an attached rental unit.

During the search of the trailer, the detectives found pills and

white powder, and shotgun shells in several locations, including

in    a    nightstand            next     to    the   bed.       Detectives       also       found

documents in defendant’s name that listed his address as the

trailer’s address and as his mother’s address.                                  In the master

bedroom closet, detectives found a shotgun.                             Half of the closet

was   filled          with       men’s    clothes,       the   other    half     with    women’s

clothes.         Outside, a marijuana plant grew near the trailer.

          Defendant was detained as he attempted to return to the

trailer,        waived       his     Miranda      rights,      and     agreed    to     speak      to
                                            -3-
Detective Patercity.                Defendant denied that he lived in the

trailer but stated that he still “stayed there some nights[.]”

Defendant       also       told    Detective      Patercity    that      the    shotgun

belonged to his wife, but acknowledged that at some point in the

past two months he had handled the shotgun to make sure it was

“clear.”       Defendant denied that he possessed any illegal drugs

and claimed that the marijuana plant grew naturally.                           The jury

found defendant guilty of manufacturing marijuana and possession

of    a    firearm     by    a    felon.      Defendant     received     a     suspended

sentence of 24 months supervised probation for the manufacture

of marijuana conviction, which was to begin after a term of 12-

15 months active imprisonment for the possession of a firearm by

a felon conviction.              Defendant appeals.

                                           II. Analysis

          In his first argument, defendant contends that the trial

court erred by denying his motion to dismiss the possession of a

firearm by a felon charge.             We disagree.

          “This Court reviews the trial court’s denial of a motion to

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

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

the   question       for    the     Court   is    whether   there   is    substantial

evidence (1) of each essential element of the offense charged,
                                           -4-
or of a lesser offense included therein, and (2) of defendant’s

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

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

S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.

2d 150 (2000).            “In making its determination, the trial court

must     consider      all     evidence    admitted,     whether    competent    or

incompetent, in the light most favorable to the State, giving

the    State     the      benefit     of   every    reasonable     inference    and

resolving any contradictions in its favor.” State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 132 L. Ed. 2d 818 (1995).

       The two elements of possession of a firearm by a felon are:

(1) the defendant had a prior felony conviction; and (2) the

defendant had a firearm in his possession.                 State v. Hussey, 194

N.C. App. 516, 521, 669 S.E.2d 864, 867 (2008); see also N.C.

Gen. Stat. § 14-415.1 (2013).               Possession of the firearm may be

actual or constructive.             State v. Bradshaw, 366 N.C. 90, 93, 728

S.E.2d    345,      348      (2012)   (citation     omitted).       “Constructive

possession       occurs        when    a   person      lacks    actual   physical

possession, but nonetheless has the intent and power to maintain

control over the disposition and use of the [item].”                     State v.
                                         -5-
Acolatse, 158 N.C. App. 485, 488, 581 S.E.2d 807, 810 (2003)

(citation and quotation marks omitted).                        “However, unless the

person has exclusive possession of the place where the [item is]

found,   the    State     must   show    other      incriminating        circumstances

before   constructive       possession        may    be    inferred.”          State     v.

Tisdale, 153 N.C. App. 294, 297, 569 S.E.2d 680, 682 (2002)

(citation and quotation marks omitted).

    In      Bradshaw,      our   Supreme       Court       held      that   the        State

presented       sufficient         evidence         of      other        incriminating

circumstances in a similar situation.                 Bradshaw, 366 N.C. at 97,

728 S.E.2d at 350.          Although the defendant in Bradshaw was not

present at the time the weapon was discovered in the bedroom

closet of his mother’s home, the State produced evidence that

officers    discovered       a   cable    receipt         at    the    house      in     the

defendant’s name, photographs and a father’s day card addressed

to the defendant, and men’s clothing in a bedroom.                          Id. at 96,

728 S.E.2d at 349.         The officers had also recently observed the

defendant      at   the   house.        Id.    at    92,       728    S.E.2d   at      347.

Defendant was arrested, months later, near the house.                             Id. at

96-97, 728 S.E.2d at 349-350.

    Similarly, viewing the evidence in the light most favorable

to the State in this case, there is substantial evidence of
                                         -6-
defendant’s constructive possession of the firearm.                      First, the

officers observed defendant’s car parked at the trailer just

minutes before they conducted their search.                    Defendant admitted

to staying in the trailer, and officers found the shotgun in the

master bedroom closet, along with men’s clothes, and shotgun

shells in various locations throughout the trailer, including

the nightstand in the master bedroom.                   Although there was some

conflicting evidence about defendant’s residency, officers found

documents in defendant’s name that bore the trailer’s address.

Finally, defendant was detained when he attempted to return to

the trailer shortly after the officers conducted the search and

admitted to having handled the shotgun.                       Taking all of this

evidence in the light most favorable to the State, we conclude

that    the    trial   court    did   not    err   in    denying   the    motion    to

dismiss.

       In a related sufficiency argument, defendant contends that

there    was    a    fatal   variance       between     the   allegation    in     the

indictment that he possessed the shotgun on or about 11 August

2011, and the State’s evidence that he actually possessed the

shotgun two months prior to that date.                   Defendant contends that

the evidence of actual possession supported a separate charge,

and    that    his   trial     counsel   was   not      prepared   to    refute    the
                                       -7-
evidence    of    actual      possession     in     what      appeared      to     be    a

constructive possession case.          We disagree.

       In order to prevail on a motion to dismiss based on a fatal

variance    between     the   allegations      in    the      indictment         and    the

evidence at trial, “the defendant must show a fatal variance

between the offense charged and the proof as to ‘the gist of the

offense.’       This means that the defendant must show a variance

regarding    an    essential      element    of    the     offense.”         State       v.

Pickens,    346    N.C.    628,     646,     488    S.E.2d      162,       172    (1997)

(citations omitted).

       In this case, contrary to defendant’s argument, “the date

of the offense is not an essential element of the offense of

possession of a firearm by a felon.”                     State v. Coltrane, 188

N.C. App. 498, 501, 656 S.E.2d 322, 325 (2008), disc. review

denied, appeal dismissed, 362 N.C. 476, 666 S.E.2d 760 (2008).

Accordingly,      defendant’s      contention       of    a    fatal   variance          is

without merit.

       Finally, defendant argues, based on the same evidence that

he actually possessed the shotgun prior to 11 August 2011, that

the trial court committed plain error by instructing the jury on

both   actual     and   constructive    possession,           when   the    indictment

only alleged that he possessed the shotgun on or about 11 August
                                       -8-
2011.    Defendant contends that the instructions permitted the

jury to convict him based on a theory of the offense not alleged

in the indictment.         We disagree.

      “In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss,

361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555

U.S. 835, 172 L. Ed. 2d 58 (2008).            The North Carolina Supreme

Court “has elected to review unpreserved issues for plain error

when they involve either (1) errors in the judge’s instructions

to the jury, or (2) rulings on the admissibility of evidence.”

State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

Plain error arises when the error is “‘so basic, so prejudicial,

so   lacking    in   its    elements   that   justice   cannot   have   been

done[.]’”      State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002

(4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513

(1982)).    “Under the plain error rule, defendant must convince

this Court not only that there was error, but that absent the
                                      -9-
error, the jury probably would have reached a different result.”

State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

       In this case, defendant cannot demonstrate error, much less

plain error, in the trial court’s instructions.                 The trial court

used    the    pattern   jury    instruction       to   define     actual      and

constructive     possession     as   to   the    offense   of    possession     of

marijuana:

                   Possession of a substance or article
              may be either actual or constructive.     A
              person has actual possession of a substance
              or article if that person has it on their
              person, is aware of its presence and either
              alone or together with others has both the
              power and intent to control its disposition
              or use.

                   A person has constructive possession of
              a substance or an article if the person does
              not have it on their person but is aware of
              its presence and has either alone or
              together with others both the power and
              intent to control its disposition or use.

                   A person’s awareness of the presence of
              a substance or article and a person’s power
              and intent to control its disposition or use
              may be shown by direct evidence or may be
              inferred from the circumstances.

See N.C.P.I. – Crim. 104.41.          The trial court referred back to

the    possession   instruction      when   it    instructed      the   jury   on

possession of a firearm by a felon.
                                    -10-
      Rather than presenting an alternate theory of the offense,

as defendant claims, the instruction as given simply provided

the jury with an accurate legal definition of possession, which

includes both actual and constructive possession.               In fact, the

pattern   jury    instructions      for    the    substantive       offense   of

possession of a firearm by a felon, N.C.P.I. – Crim. 254A.11

n.5, refer back to the pattern instruction for possession that

the   trial   court    read    to   the    jury.       Where    the      pattern

instructions are an accurate statement of the law, we decline to

find plain error in those instructions.              State v. Warren, 348

N.C. 80, 113, 499 S.E.2d 431, 449 (1998).

                                III. Conclusion

      In sum, we hold that the trial court did not err by denying

defendant’s   motion    to    dismiss     the    possession    of    a   firearm

charge, nor did it commit plain error in its jury instructions

on that charge.

      No error.

      Judges McGEE and DAVIS concur.

      Report per Rule 30(e).
