Opinion
No. COA08-973.
Filed May 5, 2009.
Caswell County No. 07 CRS 50596 07 CRS 50598
Appeal by Defendant from judgment entered 1 May 2008 by Judge W.O. Smith, III in Caswell County Superior Court. Heard in the Court of Appeals 10 March 2009.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Johnson, for the State. Gilda C. Rodriguez, for Defendant.
Marcus Jammal Burton (Defendant) appeals from judgment entered on his convictions of carrying a concealed weapon and possession of a firearm by a felon. For the reasons stated below, we find no error.
On 8 August 2007, Defendant and his girlfriend, Kwanisha James (James), got into an argument at James' mother's house. James' mother, Wendy Rene Lee (Lee), went in James' room and asked Defendant to leave. After Defendant left, she informed the police that Defendant assaulted James, stole James' car keys, and alerted police that Defendant might possess a gun.
Defendant called his friend, Curtis Steele (Steele) and explained that he argued with James and offered Steele twenty dollars to take him to Danville, Virginia. Steele and Defendant met at a school on Hatchett Road, when Steele and Defendant saw James and Lee ride by.
Officer West Harrington (Harrington), of the Yanceyville Police Department, was dispatched to a domestic disturbance on Hatchett Road. When Harrington arrived, he saw a black female exit a car and point at Steele's car, signaling "[t]hat's him." As Harrington activated the blue lights to his patrol car, Steele pulled his car to the side of the road. Harrington approached the car at gun point and placed Defendant in the back of his patrol car. Harrington walked toward Steele's car and saw the butt of a handgun protruding from beneath the passenger's seat. When Steele gave Harrington permission to search his vehicle, Harrington retrieved the gun. Harrington arrested Defendant for carrying a concealed weapon and escorted him to the Magistrate's office.
While at the Magistrate's office, Harrington and Officer Dalphus Cooper III heard Defendant tell the Magistrate that he had purchased the gun in Danville, Virginia. Steele testified that there was not a weapon in his car before Defendant entered and that the weapon did not belong to Steel.
At the close of the State's evidence, Defendant moved to dismiss the charge of carrying a concealed weapon for insufficient evidence. The trial court denied his motion. Defendant testified that he did not possess a gun at any time during the night, that he did not put a gun beneath the passenger seat of Steele's car, and that he did not remember telling the Magistrate that he bought the gun in Danville. Defendant renewed his motion at the end of all evidence which was again denied. The jury found Defendant guilty of carrying a concealed weapon and guilty of possession of a firearm by a felon. From this conviction, Defendant appeals.
MOTION TO DISMISS
Defendant first argues that the trial court erred by denying Defendant's motion to dismiss the charges of possession of a firearm by a felon and carrying a concealed weapon for insufficient evidence. We disagree.
"The standard of review on a motion to dismiss for insufficient evidence is whether the State has offered substantial evidence of each required element of the offense charged." State v. Goblet, 173 N.C. App. 112, 118, 618 S.E.2d 257, 262 (2005). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "'When reviewing claims of sufficiency of the evidence, an appellate court must . . . view[] all the evidence in the light most favorable to the State and resolv[e] all contradictions and discrepancies in the State's favor.'" State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007) (quoting State v. Harris, 361 N.C. 400, 402, 646 S.E.2d 526, 528 (2007)). Therefore, "'[a] case should be submitted to a jury if there is any evidence tending to prove the fact in issue or reasonably leading to the jury's conclusion as a fairly logical and legitimate deduction.'" Everette, 361 N.C. at 651, 652S.E.2d at 244 (quoting Harris, 361 N.C. at 402-03, 646 S.E.2d at 528) (internal quotations omitted).
Specifically, Defendant argues that the trial court erred because the State failed to present corroborative evidence, independent of Defendant's alleged statement that he owned the gun found in Steele's car. Defendant further argues that the State's evidence was insufficient to prove that he possessed the handgun, as possession is a necessary element for the offenses of possession of a firearm by a felon and carrying a concealed weapon.
We address the charge of possession of a firearm by a felon. Because Defendant failed to move to dismiss this charge at the close of all the evidence, "he may not challenge on appeal the sufficiency of the evidence to prove the crime charged." N.C.R. App. P. 10(b)(3). Defendant concedes that he failed to make a motion to dismiss the charge of possession of a firearm by a felon and admits that he has not properly preserved this issue for appeal. However, Defendant requests that this Court review the issue under Rule 2 of the North Carolina Rules of Appellate Procedure.
Rule 2 permits this Court to "suspend or vary the requirements or provisions of any of these rules" in order "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest." N.C.R. App. P. 2. "Thus, the exercise of Rule 2 was intended to be limited to occasions in which a fundamental purpose of the appellate rules is at stake, which will necessarily be 'rare occasions.'" State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007). "'Rule 2 . . . must be invoked cautiously," and must be applied only in 'exceptional circumstances' which allow the appellate courts to take this 'extraordinary step.'" State v. Batchelor, ___ N.C. App. ___, 660 S.E.2d 158, 164 (2008) (quoting Dogwood Development and Management Co., LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)) (internal quotations omitted).
We are not convinced that either Defendant or the public interest will suffer a manifest injustice; thus this issue is without merit. This Court denies Defendant's request to apply Rule 2 to permit further analysis.
Next, we will address the charge of carrying a concealed weapon. Under N.C. Gen. Stat. § 14-269, the elements of carrying a concealed weapon are: "(1) The accused must be off his own premises; (2) he must carry a deadly weapon; (3) the weapon must be concealed about his person." State v. Williamson, 238 N.C. 652, 654, 78 S.E.2d 763, 765 (1953) (emphasis added). "To be criminal, the weapon must be concealed, not necessarily on the person of the accused, but in such position as gives him ready access to it." State v. Gainey, 273 N.C. 620, 622, 160 S.E.2d 685, 686 (1968). It is important to note that:
[t]he language is not concealed on his person, but concealed about his person; that is, concealed near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive. . . .
It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged. Gainey, 273 N.C. at 623, 160 S.E.2d at 687.
Defendant argues that because he was not in exclusive control of the car, the State failed to offer sufficient evidence of constructive possession. We disagree.
The State offered sufficient evidence of each element of the offense of carrying a concealed weapon to submit to the jury. It was undisputed that Defendant was off of his premises and in Steele's car and that a firearm was found beneath the passenger seat of Steele's car, not on Defendant's person, making the gun "within his convenient control and easy reach[.]" Id. The State presented evidence that Defendant and Steele were the only people in the car. Steele testified that the firearm did not belong to him and that the firearm was not in his car prior to Defendant entering the vehicle. Further, when Lee reported the domestic assault on Jones, she alerted police that Defendant might be in possession of a gun.
Viewing the evidence in the light most favorable to the State, there was sufficient evidence to submit the charge of carrying a concealed weapon to the jury. Therefore, the trial court correctly denied Defendant's motion to dismiss. This assignment of error is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied effective assistance of counsel because his trial attorney failed to make a motion to dismiss the charge of possession of a firearm by a felon at the close of all the evidence for insufficiency of the evidence, thereby failing to preserve this issue for appeal. Defendant contends that there was a reasonable probability that the trial court would have dismissed the charge had his counsel done so. We disagree.
In order to succeed on an ineffective assistance of counsel claim, Defendant must show two components:
[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985).
The evidence is sufficient to show that Defendant's conduct met the elements of the charge of possession of a firearm by a felon, thus Defendant's argument is without merit. North Carolina General Statutes dictate that "[i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c)." N.C. Gen. Stat. § 14-415.1 (2007). The State presented sufficient evidence to properly submit this charge to the jury by showing that Defendant was a convicted felon and that he had constructive possession of a firearm. Had Defendant's counsel made a motion to dismiss at the close of all the evidence, it should have been denied. There is a reasonable probability that the outcome of the proceedings would have resulted in Defendant's convictions of carrying a concealed weapon and possession of a firearm by a felon. Accordingly, this assignment of error is overruled.
For the foregoing reasons, we find no error.
No error.
Judges MCGEE and GEER concur.
Report per Rule 30(e).