State v. Montgomery, COA23-720, ___ N.C. App. ___ (May. 7, 2024)

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.