State v. Malachi, 371 N.C. 719 (Dec. 7, 2018)

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 799 S.E.2d 645 (2017), in this felon in possession of a firearm case, the court reversed, holding that though the trial court erred in its jury instructions with respect to possession of a firearm, the error did not require a new trial. At trial, the defendant objected to any reference in the jury instructions to constructive possession, arguing that the facts showed only actual possession. The trial court overruled the defendant’s objection and instructed that possession could be either actual or constructive. During deliberations, the jury requested “a legal definition of possession of a firearm,” and the court re-instructed the jury consistent with its prior instructions. The defendant was convicted and he appealed. The Court of Appeals awarded the defendant a new trial, finding that the evidence supported an instruction only for actual possession and that the trial court erred by instructing on constructive possession. That court reasoned that inclusion of a jury instruction unsupported by the evidence is reversible error. The State sought discretionary review and the Supreme Court reversed.

          The Supreme Court began by noting that it has treated actual and constructive possession as alternative means of showing possession of an item necessary for guilt. Thus, the Court of Appeals correctly determined that the trial court erred by allowing the jury to potentially convict the defendant of possession of a firearm by a felon on the basis of constructive possession where no evidence supported that theory.

          Turning to whether that error required a new trial, the court held that it did not. Concluding that its “existing jurisprudence does not conclusively establish that existing North Carolina law encompasses an automatic reversal rule” in these circumstances, it turned to a determination of whether it should adopt such a rule. It declined to do so, holding that the defendant’s challenge to an unsupported constructive possession instruction is subject to traditional harmless error analysis. The court went on to note that as a general matter, a defendant seeking to obtain appellate relief on the basis of an error to which there was an objection at trial must establish that there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. It noted however that cases involving submission of erroneous jury instructions are “exceedingly serious and merit close scrutiny to ensure that there is no ‘reasonable possibility’ that the jury convicted the defendant on the basis of such an unsupported legal theory.” However, if the State presents exceedingly strong evidence of guilt on the basis of a theory and that evidence is neither in dispute nor subject to serious credibility-related questions, “it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.” Turning to the case at hand, it noted that the undisputed evidence showed that officers went to a location after receiving report that an individual possessed a firearm. They discovered the weapon while searching the defendant, who matched the description that had been provided. On these facts the defendant failed to establish that there is a reasonable possibility that, in the absence of the erroneous instruction, the jury would have acquitted. Justice Morgan dissented.