Ponderous and Substantial Things: Parsing the Evidence in State v. Phelps

A defendant’s simultaneous possession of multiple guns will generally support only one conviction for possession of a firearm by a felon. In State v. Phelps, No. COA25-934 (June 3, 2026), the State argued that multiple convictions were warranted because the evidence showed that one of the guns found in a cache at the defendant’s home had been in his possession earlier at a different location. The Court of Appeals noted, however, that the evidence of prior possession was hearsay, admitted for the limited purpose of providing context for the investigation. Declaring that the statements could not be considered substantive evidence of the prior possession, the Court of Appeals found insufficient evidence to support multiple convictions. This post considers the opinion in Phelps.

Multiple Counts

A defendant charged with multiple counts of the same offense may raise the claim that the evidence will support only one conviction. Courts address this issue by considering the unit of prosecution. E.g., State v. Applewhite, 386 N.C. 431, 434 (2024). (The same issue arises under other names as well: a continuing offense, multiplicitous charges, etc.) Subject to constitutional limitations, the allowable unit of prosecution is within the discretion of the legislature. State v. Smith, 323 N.C. 439, 441 (1988). When a statute does not clearly express legislative intent, the determination must be made by the courts. Id.; accord State v. Watlington, 298 N.C. App. 584, 600 (2025).

Regarding offenses of unlawful possession, several cases have held that a defendant who possesses multiple firearms at the same time has committed a single offense, not as many offenses as guns. See State v. Conley, 374 N.C. 209, 214 (2020) (possession of firearm on school property); State v. Simpson, No. COA24-1092, Slip Op. at 4 (N.C. Ct. App. July 15, 2026) (carrying concealed weapons); State v. Garris, 191 N.C. App. 276, 285 (2008) (possession of a firearm by a felon). Significantly, the appellate courts addressed the multiplicity issue in these cases as a sentencing problem: whether the trial court erred by entering judgment on more than one count. Other cases addressing essentially the same issue have framed it in terms of the sufficiency of the evidence. E.g., State v. Wiggins, 210 N.C. App. 128, 132 (2011) (possession of a firearm by a felon); State v. Boykin, 78 N.C. App. 572, 577 (1985) (larceny of a firearm).

In one such case, the Supreme Court addressed the question of how to delineate between assaults. The State may charge a defendant with multiple counts of assault, it said, “only when there is substantial evidence that a distinct interruption occurred between assaults.” State v. Dew, 379 N.C. 64, 72 (2021). A discreet interruption, the Supreme Court explained, may take the form of an intervening event, a lapse in time, an interruption in momentum, a change in location, or some other clear break. Id. The Supreme Court has since applied the same test to distinguish between other multiplicitous offenses. See State v. Calderon, 388 N.C. 700, 710 (2025) (indecent liberties).

Substantive Evidence

The rules of evidence distinguish between evidence admitted in order to prove a fact at issue (i.e., substantive evidence) and evidence bearing only on the credibility of a witness or declarant (i.e., impeaching or corroborative evidence). 1 Kenneth Broun, et al., Brandis & Broun on North Carolina Evidence, § 3 p. 6 (8th ed. 2018). Admittedly, the terms are not always used precisely. Corroboration refers to the process of persuading the fact finder that a witness is credible; it is the opposite of impeachment. Id. at § 162; State v. Garcell, 363 N.C. 10, 39 (2009). But the term corroboration is often used broadly to refer to cumulative evidence all establishing the same fact. Brandis and Broun, § 162; State v. Burns, 307 N.C. 224, 231 (1982).

A similar ambiguity haunts the term substantive. Due process is said to be substantive when it is not procedural. Offenses are said to be substantive to distinguish them from inchoate offenses, like attempt, conspiracy, and solicitation, or from indictable statuses, like habitual felon. With regard to evidence, the word substantive frequently appears as contrasted with illustrative. E.g., State v. McSwain, 277 N.C. App. 522, 530 (2021). But much evidence admitted for illustrative purposes is also admissible as substantive evidence. Brandis & Broun, § 252, pp. 1022-23; cf. G.S. 8-97.

Many cases respect the distinction noted above between substantive and impeachment evidence. Hence, prior inconsistent statements, though inadmissible as substantive evidence because hearsay, may be admissible to impeach a testifying witness. E.g., State v. Bishop, 346 N.C. 365, 387 (1997). In a few cases, the Court of Appeals has declared a statement offered for a different purpose to be non-substantive, though the evidence is not offered to undercut or bolster credibility. E.g., State v. Angram, 270 N.C. App. 82, 85 (2020) (describing State v. Alston, 131 N.C. App. 514, 517 (1998)); State v. Bailey, 233 N.C. App. 688, 692 (2014) (same). The distinction is not trivial because non-substantive evidence may not be considered when assessing the sufficiency of the State’s evidence. State v. Bartlett, 77 N.C. App. 747, 752 (1985); State v. Brannon, 21 N.C. App. 464, 468 (1974).

State v. Phelps

In December 2022, police responded to a report of a shooting on Dickenson Avenue in Greenville. Officers spoke with witnesses and observed a Buick with bullet holes in the bumper and passenger door and two shell casings in the street. They proceeded to an address said to be where the defendant lived. The defendant’s Honda, with a bullet hole on the driver’s side, was parked there. They found two spent 9-millimeter shell casings in the driver’s seat. Executing a search warrant at the defendant’s home, officers found a nine-millimeter ghost gun, an AR-15 rifle, a .22-caliber handgun, a .22-caliber rifle, and a 12-gauge shotgun. Police arrested the defendant, who at the time was wearing an empty shoulder holster and magazine holster. State v. Phelps, Slip Op. pp. 2-3.

The defendant was indicted for two counts of possession of a firearm by a felon. At trial, officers testified that a witness on Dickenson Avenue said the defendant had pulled alongside him and fired at his car; the witness said he fired back. Officers testified that, prior to the search of his home, the defendant’s wife said that the Dickenson Avenue witness fired first, that she handed the defendant a gun, and that the defendant fired back. But neither the Dickenson Avenue witness nor the defendant’s wife testified at trial, and the trial court told the jury that the evidence regarding the Dickenson Avenue shooting was offered only for context or the investigation. Phelps, Slip Op. p. 4-5. The defendant was convicted of two counts of possession of a firearm by a felon and appealed.

Before the Court of Appeals, the defendant argued there was insufficient evidence of two counts of possession of a firearm by a felon. As for his alleged possession of a gun on Dickenson Avenue, he argued that the evidence of the out-of-court statements was admitted only to show the context and course of the investigation, not for the truth of the matters asserted. Phelps, Slip Op. p. 8.

The Court of Appeals agreed. When evidence is admitted for a limited purpose, it said, “the jury may consider it only for that purpose and may not use it as substantive evidence for any other matter.” Phelps, Slip Op. p. 8. Here, it noted, the evidence of the Dickenson Avenue shooting was offered only for context or the investigation and could not otherwise be considered. The Court of Appeals concluded that the out-of-court statements “therefore cannot be considered as substantive evidence that Defendant fired a gun on Dickinson Avenue.” Id. at 9. Without those statements, it said, there was insufficient evidence of the defendant’s prior possession of a firearm. Id. at 10.

Conclusion

The confusion in evidence terminology is unfortunate. Alston itself, the apparent source of the proposition that an out-of-court statement admitted for a non-hearsay purpose may not be used to prove unlawful possession did not say the evidence was not substantive. (Indeed, the word does not appear in the opinion.) The non-substantive label seems to be a post-hoc rationale to bring Alston within the rule that only substantive evidence is considered in determining the sufficiency of the evidence. Cf. State v. Ditenhafer, 376 N.C. 846, 859, n.1 (2021). The Phelps corollary – that evidence admitted for a limited purpose may be considered only for that purpose and not as substantive evidence of any other – would be as valid without the final confounding clause.

In light of its conclusion regarding the out-of-court statements, the Court of Appeals in Phelps said it did not need to address the defendant’s argument that the evidence showed only simultaneous possession of multiple firearms at his home. Despite the disclaimer, the Garris issue permeates the court’s analysis. Indeed, the Court of Appeals would not have had to evaluate the evidence of the Dickenson Avenue shooting if the defendant’s simultaneous possession of multiple firearms at his home was sufficient to support more than one conviction for possession of a firearm by a felon.

It appears therefore that the Court of Appeals assumed for purposes of the argument that the result might have been different had there been sufficient evidence of the defendant’s possession of a gun on Dickenson Avenue. The significance of that assumption should not be lost on prosecutors. In Wiggins, the Court of Appeals applied Garris and held that the defendant’s shooting three people at different locations did not support multiple convictions for possession of a firearm by a felon because he obtained and possessed the guns simultaneously. Wiggins, 210 N.C. App. at 135. But Wiggins predated Dew, wherein the Supreme Court specifically stated that a change in location could indicate a distinct interruption sufficient to delineate separate occurrences of the same crime.

To be sure, Phelps does not explicitly say that possession of multiple firearms at different locations will support multiple convictions of unlawful possession. But Dew may thus limit Garris. Given appropriate evidence, prosecutors may be emboldened to pursue multiple charges. And appropriate evidence means more than out-of-court statements to place the defendant at the different locations.