State v. Livingston, COA22-678, ___ N.C. App. ___ (Sept. 19, 2023)

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.