Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 07/22/2024
E.g., 07/22/2024

In this Haywood County case, the Supreme Court reversed a unanimous Court of Appeals decision and reinstated defendant’s conviction for possession of a firearm by a felon. 

In April of 2018, defendant was pulled over for driving with a permanently revoked license. During the stop, the officer smelled marijuana; defendant admitted that he had smoked marijuana earlier but none was in the vehicle. Based on the smell and defendant’s admission, the officer decided to search the vehicle, eventually discovering two firearms. Defendant was charged in a single indictment with possession of a firearm by a felon, possession of a firearm with an altered or removed serial number, and carrying a concealed weapon. At trial, defendant did not challenge the indictment, and he was ultimately convicted of all three offenses.

On appeal, defendant argued the indictment was fatally flawed, as G.S. 14-415.1(c) requires a separate indictment for possession of a firearm by a felon. The Court of Appeals agreed, vacating defendant’s conviction based on State v. Wilkins, 225 N.C. App. 492 (2013), and holding that the statute unambiguously mandates a separate indictment for the charge.

After granting discretionary review, the Supreme Court disagreed with the Court of Appeals, explaining that “it is well-established that a court should not quash an indictment due to a defect concerning a ‘mere informality’ that does not ‘affect the merits of the case.’” Slip Op. at 6, quoting State v. Brady, 237 N.C. 675 (1953). The court pointed to its decision in State v. Brice, 370 N.C. 244 (2017), which held that failure to obtain a separate indictment required by a habitual offender statute was not a jurisdictional defect and did not render the indictment fatally defective. Applying the same reasoning to the current case, the court explained that “the statute’s separate indictment requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective.” Slip Op. at 9. The court explicitly stated that Wilkins was wrongly decided and specifically overruled. Id.

Justice Morgan dissented, and would have upheld the Court of Appeals opinion and the reasoning in Wilkinsfinding that the lack of a separate indictment required by G.S. 14-415.1(c) was a fatal defect. Id. at 11. 

State v. Bradshaw, 366 N.C. 90 (June 14, 2012)

Affirming an unpublished opinion below, the court held that the trial court properly denied the defendant’s motion to dismiss charges of trafficking by possession and possession of a firearm by a felon. The State presented sufficient evidence to support the jury’s determination that the defendant constructively possessed drugs and a rifle found in a bedroom that was not under the defendant’s exclusive control. Among other things, photographs, a Father’s Day card, a cable bill, a cable installation receipt, and a pay stub were found in the bedroom and all linked the defendant to the contraband. Some of the evidence placed the defendant in the bedroom within two days of when the contraband was found.

In this Rutherford County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in denying his motion to dismiss for insufficient evidence. The Court of Appeals agreed, reversing the denial and remanding to the trial court for dismissal. 

In July of 2020, law enforcement officers approached the house where defendant’s girlfriend and her children resided to execute a search warrant against defendant for a different charge not relevant to the current case. During a search of the house, officers found a firearm in the bedroom, in a dresser drawer containing the girlfriend’s personal items and feminine products. At trial, the State argued that defendant was a co-occupant of the bedroom and that he constructively possessed the firearm, as no evidence showed defendant physically possessing the firearm. 

Taking up defendant’s argument, the Court of Appeals explained the body of law around constructive possession where the defendant does not have exclusive control over the location. When a defendant does not have exclusive control, “the State is required to show other incriminating circumstances in order to establish constructive possession.” Slip Op. at 6, quoting State v. Taylor, 203 N.C. App. 448, 459 (2020). Here, the court could not find sufficient incriminating circumstances in the State’s evidence, concluding no evidence of “ownership, registration, fingerprints, DNA, nor any other evidence ties Defendant to the gun, which [his girlfriend] asserted belonged to her, was located inside a closed drawer, was found with her other property, and was found in a closed drawer in her bedroom located inside the home she rents.” Id. at 10. 

In this Rutherford County case, defendant appealed his convictions for possession of a firearm by felon, possession of methamphetamine, and attaining habitual felon status, arguing error in (1) denying his motion to dismiss based on insufficient evidence he possessed the firearm and drugs, (2) failing to instruct the jury on theories of attempt, and (3) permitting the jury to hear recordings of defendant’s calls from jail a second time without appropriate jury instruction. The Court of Appeals found no error. 

Beginning with (1), the Court of Appeals explained that at trial, the State offered testimony from a police officer that defendant made several phone calls while in jail. The substance of these calls were that defendant left something in his coat and that he would pick it up later. Police later met with the woman defendant was calling, and found the coat with two bags of methamphetamine, as well as a firearm hidden at another acquaintance’s house. The court noted that defendant’s instructions and knowledge of where these items were hidden, and the instructions he gave to those on the outside through the phone calls, represented constructive possession to support the conviction. The court explained the “jail calls reflect that [defendant] sought to control the disposition and use of both the gun and the methamphetamine by directing [the woman] to remove them from the scene of his arrest.” Slip Op. at 6. The court also pointed out that this evidence could support the jury concluding defendant actually possessed the items. 

In (2), defendant argued that he did not successfully convince the woman to move the items, warranting a jury instruction on attempted possession as a lesser alternative. The court disagreed, explaining “the State’s evidence actually demonstrated that [the woman] had, in fact, moved the items by the time she was approached by law enforcement . . . [t]here was therefore no evidence tending to show an attempted possession.” Id. at 8. 

Dispensing with (3), the court noted that the statement defendant relied on in State v. Weddington, 329 N.C. 202 (1991), was dicta, and no caselaw required the trial court to instruct the jury to remember all the previous evidence when allowing review of a specific part of testimony. The court concluded “[t]he jury was appropriately instructed that it should consider all the evidence during the jury charge, and the trial court scrupulously observed the requirements of [G.S.] 15A-1233(a) during the replay.” Id. at 10. 

In this Guilford County case, defendant appealed his convictions for breaking and entering, larceny, possession of a firearm by a felon, and resisting a public officer, arguing error in (1) denying his request for a jury instruction on voluntary intoxication, and (2) not specifically identifying the firearm during the jury instruction for possession of a firearm by a felon. The Court of Appeals disagreed, finding no error. 

In May of 2021, defendant and an accomplice broke into a pharmacy; after police responded, the men fled the pharmacy, and defendant dropped a gun in the parking lot while running from the officers. After searching the vehicle left at the scene, police found two more firearms and other stolen goods. After defendant was indicted, he filed a notice of defense asserting that he was too intoxicated to form the necessary specific intent for the offenses. During the charge conference, the trial court denied defendant’s request for a jury instruction on voluntary intoxication. Defendant was subsequently convicted, and appealed.

Taking up (1), the Court of Appeals noted “[t]o obtain a voluntary intoxication instruction, a defendant ‘must produce substantial evidence which would support a conclusion by the judge that he was so intoxicated that he could not form’ the specific intent to commit the underlying offenses.” Slip Op. at 5, quoting State v. Mash, 323 N.C. 339, 346 (1988). However, the court pointed out that “mere intoxication” was not sufficient, and that evidence had to show the defendant had lost his ability to think and plan due to the overconsumption of intoxicants. Id. Here, although defendant testified to consuming a large amount of cocaine over several days, the court highlighted instances of defendant recalling the events of the pursuit and arrest, as well as his interview at the police station. The court concluded defendant failed to produce evidence sufficient to justify the voluntary intoxication instruction. 

Turning to (2), the court noted that plain error was the applicable standard as defendant did not object to the jury instruction on possession of a firearm at trial. While the trial court did not specify which firearm defendant possessed in the instruction, the series of events where defendant fled the pharmacy and dropped a gun in the parking lot allowed for only one specific gun to be relevant. The other two firearms found at the scene were inside the vehicle and could not have been possessed by defendant. As a result, defendant could not demonstrate plain error. 

Judge Murphy concurred in the result only as to (1), and concurred as to (2). 

In this Brunswick County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in the denial of his motion to dismiss for insufficient evidence. The Court of Appeals found no error. 

In June of 2020, deputies with the Brunswick County Sheriff’s Office began observing a vehicle that entered a known drug area. After the vehicle ran a stop sign and went 70 mph in a 55 mph zone, they pulled the vehicle over. Defendant was in the passenger seat when the deputies approached, and they observed marijuana on both the driver and defendant, leading to a search of the vehicle. The search found a bag containing a gun and a smaller crown royal bag containing three identification cards with defendant’s name and picture on them. Defendant admitted to the police he was a felon, and he was arrested for possessing a gun. At trial, defendant moved to dismiss, arguing the evidence had not established the gun was his. The trial court denied the motion and defendant was subsequently convicted. 

The Court of Appeals first explained that “possession” for purposes of defendant’s conviction could be actual or constructive; here defendant was not in actual possession, so the caselaw regarding constructive possession in a vehicle applied to defendant’s appeal. To show constructive possession in this situation, the State is required to show “other incriminating circumstances” to allow a finding of constructive possession. Slip Op. at 7. The court noted that two common factors used to satisfy the “incriminating circumstances” inquiry were (1) proximity, and (2) indicia of control. Id. Here, (1) the bag containing the gun was located behind the passenger seat where defendant was sitting, and (2) the gun was touching a crown royal bag containing a wallet with defendant’s identification cards in it. The combination of these two factors supported the finding that defendant constructively possessed the gun. 

In this Nash County case, defendant appealed his conviction for possession of a firearm by a felon, arguing insufficient evidence to establish his constructive possession of the firearm. The Court of Appeals agreed, reversing and remanding for resentencing. 

In May of 2020, a problem oriented policing team was attempting to prevent retaliatory shootings by locating individuals that may have been involved in the incidents, and defendant was identified as one person possibly involved. Officers located a vehicle with defendant inside and initiated a traffic stop; defendant was in the front passenger seat of the vehicle. After the stop, defendant exited the vehicle and went inside a gas station, where he resisted being frisked, leading to the officers tasing him and detaining him in the police car. Searching the vehicle, the officers found a rifle in the backseat and ammunition between the driver and passenger seats. No DNA or fingerprints were taken from the firearm. At trial, defendant testified that the vehicle was his mothers, and he was not allowed to drive it because he did not have a license. Defendant also called a witness who testified that he was another passenger in the vehicle and the firearm was his. Despite the testimony, defendant was convicted of resisting a public officer and possession of a firearm by a felon, and he appealed the firearm charge.

On appeal, the Court of Appeals first noted that to establish constructive possession, the prosecutor was required to prove that defendant had the “’power and intent to control’ the disposition or use of the firearm.” Slip Op. at 6, quoting State v. Taylor, 203 N.C. App. 448 (2010). Here, the state attempted to show this by first arguing that defendant was the custodian of the vehicle, pointing to State v. Mitchell, 224 N.C. App 171 (2012). The court did not agree with this analysis, examining the relevant caselaw and concluding that “under our existing case law, the driver was also a custodian of the vehicle.  As such, the evidence fails to show Defendant was in exclusive possession of the vehicle at the time the rifle was found.” Slip Op. at 9. The court looked for additional incriminating circumstances that could link defendant to constructive possession of the firearm, but found none, concluding “the evidence, without more, is not sufficient to support a finding Defendant, while seated in the front passenger seat and one of four occupants, was in constructive possession of a firearm found in the rear passenger compartment of a vehicle not owned or operated by Defendant.” Id. at 12.

Officers responding to a report of a suspicious vehicle found the defendant and a female passenger parked in a white pickup truck on the side of the road. When an officer asked if there was anything illegal in the vehicle, the defendant replied “you know I like my pot.” The passenger consented to a search of her handbag, which revealed marijuana, and officers began searching the truck. A backpack found in the back of the truck contained marijuana, paraphernalia, and a handgun in an unlocked box. The defendant stated that the drugs were his. The defendant’s sister was called to come get the vehicle, and when she arrived she told the officers that the gun was hers and she had placed it in the backpack without the defendant’s knowledge. The sister also testified to ownership of the gun at a court hearing. The case went to trial before a jury, and the defendant was convicted of possession of a firearm by a felon, possession of marijuana and drug paraphernalia, and attaining habitual felon status.

On appeal, the defendant argued that his motion to dismiss the felon in possession charge should have been granted because there was insufficient evidence that he was in possession of the firearm. The appellate court disagreed and held that the motion to dismiss was properly denied. At trial, the state proceeded on a theory of constructive possession, arguing that the defendant was not in actual possession of the gun but he was aware of its presence and had the power and intent to control its disposition and use. The appellate court agreed that there was sufficient evidence of constructive possession to survive a motion to dismiss in this case: defendant was the owner and driver of the truck; it was his backpack with his belongings inside of it; and he did not express surprise when the gun was found or disclaim ownership of it. “The State presented substantial evidence of constructive possession because Defendant’s power to control the contents of his vehicle is sufficient to present an inference of knowledge and possession of the firearm found therein.”

The court rejected the defendant’s argument that the evidence was insufficient to support an instruction on actual possession of the firearm in question. Actual possession requires that a party have physical or personal custody of the item. The case arose out of a drug transaction between an undercover officer and the defendant and others in a vehicle at a prearranged transaction site. The undercover officer testified that the defendant was fidgeting, looking around, and acting nervous as if he was “the lookout.” Another officer involved in the arrest saw the defendant in the front passenger seat with his hands “low” and not visible. When the officer opened the front passenger door, he saw a weapon between the seat and the passenger side door, where the defendant’s right hand had been. A photograph confirmed the location of a weapon. Although the firearm was not found on the defendant, the evidence was sufficient to show that he had “personal custody” of it and this was sufficient to support an instruction on actual possession.

In this possession of methamphetamine and felon in possession of a firearm case, the trial court did not err by instructing the jury that the defendant’s status as the driver of a stopped vehicle was sufficient to support an inference that he constructively possessed both methamphetamine and a firearm, even though another person was present in the vehicle. The defendant was stopped by officers while driving a beige Chevrolet pickup truck. Law enforcement had received drug complaints about a man named Sanchez. Officers conducted a two-hour surveillance of Sanchez and the defendant as they drove to several hotels in the area. Both Sanchez and the defendant were seen driving the truck during the two hour surveillance. Officers stopped the vehicle. The defendant was in the driver’s seat; Sanchez was in the passenger seat. A K-9 alert lead to a search of the vehicle. Officers found bags and backpacks in the truck bed that Sanchez stated belonged to him. While searching one of the backpacks they found pills and a notebook containing Sanchez’s name. Another backpack contained a compass with .2 g of a crystalline substance (later determined to be methamphetamine), a digital scale and counterweight, and a notebook containing entries in the defendant’s handwriting concerning the defendant’s wife. A revolver was found beneath the passenger seat. A later strip search of the defendant produced 39 pills, 15 of which were later determined to be diazepam. The defendant was indicted for possession of methamphetamine, possession of a firearm by a felon, and other charges. At the charge conference, the State requested an instruction stating that an inference of constructive possession can arise from evidence showing that a defendant was the custodian of a vehicle in which contraband was found. Over the defendant’s objection, the trial court gave the instruction. The defendant was found guilty and appealed.

            There was sufficient evidence to convict the defendant of possession of methamphetamine. Because the methamphetamine was found in a backpack in the bed of the truck, the State was required to show constructive possession. As the vehicle’s driver, the defendant’s dominion and control over the truck is sufficient to give rise to an inference of constructive possession. The court rejected the defendant’s argument that his dominion and control over the truck was insufficient because he was not the only occupant of the vehicle. The court went on to conclude that while the defendant’s status as the driver might be sufficient to uphold his conviction for possession of methamphetamine, the State also presented additional incriminating evidence to support an inference of constructive possession. Specifically, the defendant’s frequent stops at hotels and gas stations, indicative of drug transactions; the defendant’s possession of other controlled substances; and that the backpack in which the methamphetamine was found contained the defendant’s personal belongings.

            The evidence was also sufficient to show constructive possession of the firearm. As with possession of a controlled substance, the defendant’s dominion and control as the driver of the truck was sufficient to give rise to an inference of constructive possession. The court again rejected the defendant’s argument that his non-exclusive control over the truck required the State to provide additional incriminating evidence. Again, however, even though the defendant’s status as the driver is sufficient to give rise to an inference of possession, the State presented additional incriminating evidence in this case including the defendant’s proximity to the firearm and his behavior consistent with the sale of drugs.

In this felon in possession case, there was insufficient evidence that the defendant possessed the rifle in question. While attempting to locate the defendant, deputies established a perimeter around a large section of woods and deployed a canine, Max, to track human sent in the area. Following a scent, Max brought the officers to a loaded assault rifle. While Max continued to track the scent, another man emerged from the woods. After losing the scent and taking a rest break outside of the woods, Max resumed tracking, picking up a scent, and leading the officers to the defendant, who was discovered lying on the ground. The distance between where the rifle was recovered and where the defendant was found was between 75 and 100 yards. No evidence was presented regarding ownership of the rifle. DNA swabs taken from the rifle and compared to the defendant’s DNA were inconclusive. No other evidence connected the defendant to the rifle. Notwithstanding the fact that Max was trained not to veer off of one human sent and on to another, the rifle was not found in the defendant’s physical possession or in the immediate area over which he had the ability to control. Additionally, another man was present in the woods. The court noted that it had upheld convictions where defendants were identified as the perpetrator by tracking canines but found those cases distinguishable. Here, testimony of the canine’s tracking behavior constituted the only evidence offered to establish constructive possession of the rifle. In one of those prior cases, hair and shoe print evidence also was presented to identify the defendant as the perpetrator. In the other, the canines were offered a scent source of the defendant and the codefendant and were tracking a known sent, as compared to the case at hand where Max was tracking an unknown scent. Also, in neither of the prior cases did the canine lose the track, take a break, and then resume. Additionally, here the defendant was not alone in the area and no other evidence linked him to the rifle or the site where it was recovered. The court concluded:

The officers’ testimony is insufficient to establish any link between Defendant and the firearm. The canine tracking evidence on an unknown scent fails to raise, as a matter of law, a reasonable inference of either actual or constructive possession of a firearm by Defendant as a convicted felon. Viewed in the light most favorable to the State, the evidence raises only a “suspicion [or] conjecture” that Defendant possessed the rifle. The trial court erred in denying Defendant’s motion to dismiss. 

State v. McKiver, 247 N.C. App. 614 (May. 17, 2016) rev’d on other grounds, 369 N.C. 652 (Jun 9 2017)

The court held that the trial court did not err in denying the defendant’s motion to dismiss a charge of felon in possession of a firearm, rejecting the defendant’s argument that there was insufficient evidence establishing that he had constructive possession of the weapon. The evidence showed, among other things, that an anonymous 911 caller saw a man wearing a plaid shirt and holding a gun in a black car beside a field; that someone saw that man dropped the gun; that an officer saw the defendant standing near a black Mercedes wearing a plaid shirt; that the defendant later returned to the scene and said that the car was his; and that officers found a firearm in the vacant lot approximately 10 feet from the Mercedes. This evidence was sufficient to support a reasonable juror in concluding that additional incriminating circumstances existed--beyond the defendant’s mere presence at the scene and proximity to where the firearm was found--and thus to infer that he constructively possessed the firearm.

In a possession of a firearm by a felon case, the State failed to produce sufficient evidence that the defendant had constructive possession of the rifle. The rifle, which was registered to the defendant’s girlfriend was found in a car registered to the defendant but driven by the girlfriend. The defendant was a passenger in the car at the time. The rifle was found in a place where both the girlfriend and the defendant had equal access. There was no physical evidence tying the defendant to the rifle; his fingerprints were not found on the rifle, the magazine, or the spent casing. Although the gun was warm and appeared to have been recently fired, there was no evidence that the defendant had discharged the rifle because the gunshot residue test was inconclusive. Although the defendant admitted to an officer that he knew that the rifle was in the car, awareness of the weapon is not enough to establish constructive possession. In sum, the court concluded, the only evidence linking the defendant to the rifle was his presence in the vehicle and his knowledge that the gun was in the backseat.

In a felon in possession case, there was sufficient evidence that the defendant had constructive possession of the firearm. The defendant was driving a rental vehicle and had a female passenger. The gun was in a purse in the car’s glove container. The defendant was driving the car and his interactions with the police showed that he was aware of the vehicle’s contents. Specifically, he told the officer that the passenger had a marijuana cigarette and that there was a gun in the glove container.

(1) In a felon in possession case, evidence that the defendant was “playing with” the guns in question “likely” constituted sufficient evidence to support an instruction on actual possession of the guns. (2) The trial court erred by instructing the jury on constructive possession of the guns. The defendant did not have exclusive control of the apartment where the guns were found (the apartment was not his and he was not staying there; numerous people were at the apartment when the gun was found but the defendant himself was not present at that time). Thus, the State was required to show evidence of “other incriminating circumstances” to establish constructive possession. The court rejected the State’s argument that the fact that the defendant said he had played with the gun and that his fingerprints were on it constituted other incriminating circumstances, reasoning that showed actual not constructive possession. The court also found evidence that the defendant saw the gun in the apartment when another person brought it there insufficient to establish constructive possession.

(1) For purposes of a felon in possession charge, the evidence was insufficient to establish that the defendant possessed a firearm found along the route of his flight by vehicle from an officer. The defendant fled from an officer attempting to make a lawful stop. The officer did not see a firearm thrown from the defendant’s vehicle; the firearm was found along the defendant’s flight route several hours after the chase; the firearm was traced to a dealer in Winston-Salem, where the other two occupants of the defendant’s vehicle lived; and during the investigation a detective came to believe that one of the vehicle’s other occupants owned the firearm. (2) The evidence was sufficient to show that the defendant possessed a shotgun found at his residence. The shotgun was found in the defendant’s closet along with a lockbox containing ammunition that could be used in the shotgun, paychecks with the defendant’s name on them, and the defendant’s parole papers. Also, the defendant’s wife said that the defendant was holding the shotgun for his brother.  

There was sufficient evidence that the defendant constructively possessed a gun found in a van to support charges of carrying a concealed weapon and possession of a firearm by a felon. The fact that the defendant was the driver of the van gave rise to an inference of possession. Additionally, other evidence showed possession: the firearm was found on the floor next to the driver’s seat, in close proximity to the defendant; the defendant admitted that he owned the gun; and this admission was corroborated by a passenger in the van who had seen the defendant in possession of the weapon that afternoon, and remembered that the defendant had been carrying the gun in his pants pocket and later placed it on the van floor.

There was sufficient evidence that the defendant constructively possessed the firearm. The defendant was identified as having broken into a house from which a gun was stolen. The gun was found in a clothes hamper at the home of the defendant’s ex-girlfriend’s mother. The defendant had arrived at the home shortly after the breaking and entering, entering through the back door and walking past the hamper. When the defendant was told that police were “around the house,” he fled to the front porch, where officers found him. A vehicle matching the description of the getaway car was parked outside.

There was sufficient evidence of constructive possession. When a probation officer went to the defendant’s cabin, the defendant ran away; a frisk of the defendant revealed spent .45 caliber shells that smelled like they had been recently fired; the defendant told the officer that he had been shooting and showed the officer boxes of ammunition close to the cabin, of the same type found during the frisk; a search revealed a .45 caliber handgun in the undergrowth close to the cabin, near where the defendant had run. 

The evidence was sufficient to establish possession supporting convictions of felon in possession and carrying concealed where the defendant ran through a field in a high traffic area, appeared to have something heavy in his back pocket and to make throwing motions from that pocket, and a clean dry gun was found on the wet grass.

There was sufficient evidence of constructive possession to sustain conviction for possession of a firearm by a felon. 

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