State v. Sharpe, COA22-491, ___ N.C. App. ___ (May. 16, 2023)

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.