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., 09/25/2021
E.g., 09/25/2021
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Affirming an unpublished opinion below, the court held that the trial court properly denied the defendant’s motion to dismiss charges of trafficking by possession and possession of a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.

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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