{ "id": 4033666, "name": "STATE OF NORTH CAROLINA v. TERECK DANIELLE PERRY, Defendant", "name_abbreviation": "State v. Perry", "decision_date": "2012-09-18", "docket_number": "No. COA12-322", "first_page": "813", "last_page": "820", "citations": [ { "type": "official", "cite": "222 N.C. App. 813" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "664 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641608 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "408", "parenthetical": "citations and quotation marks omitted" }, { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0402-01" ] }, { "cite": "696 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "206 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4178379 ], "year": 2010, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/206/0580-01" ] }, { "cite": "346 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "480", "parenthetical": "\"A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "317 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777645 ], "year": 1986, "pin_cites": [ { "page": "648", "parenthetical": "\"A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0643-01" ] }, { "cite": "583 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "683", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957169 ], "year": 2003, "pin_cites": [ { "page": "525", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0520-01" ] }, { "cite": "693 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "148", "parenthetical": "noting there must be substantial evidence of each element of the crime charged and of defendant being the perpetrator of the crime charged in order for the State to survive a motion to dismiss, and thus have the charge submitted to the jury" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176301 ], "year": 2010, "pin_cites": [ { "page": "724", "parenthetical": "noting there must be substantial evidence of each element of the crime charged and of defendant being the perpetrator of the crime charged in order for the State to survive a motion to dismiss, and thus have the charge submitted to the jury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0718-01" ] }, { "cite": "508 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "318", "parenthetical": "citations omitted" }, { "page": "318" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11202004 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "519", "parenthetical": "citations omitted" }, { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0514-01" ] }, { "cite": "718 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "713 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "191 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159388 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "446", "parenthetical": "citations and quotation marks omitted" }, { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0439-01" ] } ], "analysis": { "cardinality": 663, "char_count": 16395, "ocr_confidence": 0.741, "pagerank": { "raw": 6.793637240583495e-08, "percentile": 0.4156825359316315 }, "sha256": "c4770b549a185942ac7f1255c39d02cc5e37fdef958b99f7f37eab9b5d113f16", "simhash": "1:af3b356214b3107e", "word_count": 2731 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERECK DANIELLE PERRY, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals his convictions for possession of a firearm by a felon and attaining the status of habitual felon. For the following reasons, we grant defendant a new trial.\nI. Background\nThe State\u2019s evidence tended to show that on 26 June 2009, law enforcement officers from the Raleigh Police Department executed a search warrant. Once inside the apartment, the officers found numerous people along with a shotgun in a closet and a pistol in a dresser. The officers noticed defendant sitting in a car outside of the apartment; they brought defendant into the apartment where they read him his Miranda rights, strip searched him, and then questioned him. Defendant told the officers the apartment was his parents\u2019 and \u201che did not know where the guns came from, but he\u2019d never seen them in here\u201d though \u201che [had seen] the guns in the parking lot, and that they were all looking at them.\u201d The officers arrested defendant and took him back to the police department where he was questioned.\nWhen asked about \u201cthe first time he saw the pistol\u201d defendant responded \u201cthat he\u2019d seen it a couple - he\u2019d seen a couple people playing with it, there was a lot of people playing with the gun. And he\u2019d seen it about a week ago[.]\u201d Defendant stated that \u201cRa-Ra[,]\u201d another man, had brought the pistol to the apartment \u201cabout a week ago[.]\u201d The officers then questioned defendant about the shotgun, and defendant responded \u201cthe shotgun\u2019s been in there for a long time. He said that it\u2019s probably been there for two years, and the gun, that shotgun, used to be in the next apartment, apartment 10.\u201d When \u201cspecifically\u201d asked about \u201chandling both the pistol and the shotgun\u201d defend-ant \u201csaid he was playing with them. He denied owning them, but he had touched them[.]\u201d Defendant stated that he had touched the guns \u201ca couple days ago\u201d without providing \u201can exact date and time.\u201d\nDefendant was indicted for two counts of possession of a firearm by a convicted felon, one count as to the pistol and one count as to the shotgun; possession of a stolen firearm as to the pistol; and attaining the status of a habitual felon. During defendant\u2019s trial by jury, at the close of the State\u2019s evidence, defendant made a \u201cmotion to dismiss for insufficiency of the evidence\u201d [,] which the trial court allowed as to \u201cthe charge of possession of the shotgun\u201d[,] but denied as to \u201cthe charge of possession of the pistol\u201d and \u201cthe possession of stolen goods.\u201d The jury found defendant guilty of possession of a firearm by a convicted felon, specifically the pistol (\u201cpossession of the pistol\u201d) and attaining the status of habitual felon. Defendant was sentenced to 60 to 81 months imprisonment on both convictions. Defendant appeals.\nII. Jury Instructions\nAlthough defendant has raised issues regarding his motion to dismiss, a specific portion of the jury instructions, the admissibility of certain evidence, and a motion to suppress, we deem defendant\u2019s argument regarding the jury\u2019s question to the trial court to be dispositive. Once jury deliberations began, the jury sent a note to the trial court asking, \u201cCan we see the definition of possession and the list of criteria?\u201d The trial court then provided the jury with a copy of the jury instructions. After receiving the jury instructions, the jury returned the instructions and the trial court noted that the jury had\nhighlighted the language which reads, a person has actual possession of a firearm, and they have \u2014 and then in the next paragraph, where it says a person has constructive possession of a firearm if he does not have it on the \u2014 and they have a note, date of arrest or can previous days be considered. And it says does playing with constitute power and intent to control disposition.\nThe trial court then instructed the jury, without objection before or after the instructions,\n[T]he bailiff has handed me back the copy of the jury instructions that I provided to you folks that you all done some marking and writing on page number three. I have reviewed what you have handed back, particularly the \u2014 I\u2019m going to address it I guess in two parts. The first part is the highlighted language. A person has actual possession of a firearm and the highlighted language person has constructive possession of a firearm if the person does not have it on them [sic]. And then there appears to be some question or language that reads day of arrest or can previous days be considered.\nIn my discretion I\u2019m unable to determine exactly what it is that you\u2019re asking for, looking at the form of the question or the writing that you handed back.\nSo I\u2019m going to charge you that you are to apply your common understandings from your everyday use of the words that are contained within the jury instructions and the law that I\u2019ve charged you, and apply that to the evidence that has been presented.\nWith respect to the question that\u2019s on the bottom of the page, does playing with constitute power and intent to control disposition.\nIn my discretion, I\u2019m going to charge you that you have heard the evidence in this case and you\u2019ve heard the evidence and you\u2019ve heard the law, and it is once again your duty as a jury to answer the question that\u2019s been proposed based on the evidence and the law that I\u2019ve provided for you.\nThat is my instructions to you. I\u2019m going to give this back to the bailiff, ask you to return to the jury room and resume your deliberations, once you\u2019re all present.\nHere, the jury\u2019s confusion as to the question of possession was understandable. From a thorough review of the transcript, it appears that the State might have proceeded under two different theories of possession, both actual and constructive. Indeed, the State could have sought to prove that (1) defendant had actually possessed the guns \u201ca couple days\u201d before 26 June 2009 and/or (2) defendant had constructively possessed the guns on 26 June 2009. Nonetheless, the State ultimately chose to pursue only constructive possession, but the trial court instructed the jury on both actual and constructive possession without any objection from either side.\nAs to actual possession, defendant was indicted for possessing the guns on 26 June 2009, the day of the search of the apartment; as to this date, the record reveals no evidence of actual possession. However, defendant had admitted that he had been \u201cplaying with\u201d the guns \u201ca couple days\u201d before 26 June 2009. Nevertheless, during its closing argument, the State told the jury,\nAnd I believe that Judge Gessner will tell you that actual possession is when it\u2019s on the person. When the person is aware of its presence and either alone or together with others, has both the power and intent to control its disposition and use.\nThose aren\u2019t the facts in this case. The weapon wasn\u2019t found on the Defendant. It\u2019s not an actual possession of the weapon. It\u2019s a constructive possession. . . .\n. . . And again, there is the actual possession and there is the constructive possession. And this Defendant constructively possessed that firearm.\n(Emphasis added.) Thus, despite the evidence of defendant\u2019s statements, the State repeatedly told the jury that it should not consider actual possession in determining whether defendant had wrongfully possessed the pistol because this was only a case of constructive possession. As to constructive possession, the indictment stated the date of \u201con or about June 26, 2009\u201d indicating that the State was pursuing a theory of constructive possession. Also, the evidence provided by the State focused on the date of 26 June 2009; the date defendant allegedly constructively possessed the guns.\nDefendant now contends that\n[t]he trial court erred or committed plain error by failing to answer the jury\u2019s questions about whether the accused could be convicted for \u201cplaying with the weapon\u201d on a day other than that charged in the indictment, creating a unanimity issue.\nA. Standard of Review\nIn State v. Tadeja, this Court stated,\n[b]ecause defendant failed to object to the jury instructions in this case, this . . . [issue] must be analyzed under the plain error standard of review. Plain error with respect to jury instructions requires the error be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected. Further, in deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\n191 N.C. App. 439, 446, 664 S.E.2d 402, 408 (2008) (citations and quotation marks omitted).\nB. Elements of N.C. Gen. Stat. \u00a7 14-415.1(a)\nN.C. Gen. Stat. \u00a7 14-415.1(a) provides, in pertinent part, that it shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm. Thus, the State need only prove two elements to establish the crime of possession of a firearm by a felon: (1) defendant was previously convicted of a felony; and (2) thereafter possessed a firearm.\nState v. Best,__ N.C. App._, _, 713 S.E.2d 556, 561 (citation, quotation marks, and brackets omitted), disc. review denied, 365 N.C. 361, 718 S.E.2d 397 (2011). The jury\u2019s question went to the element of possession.\nPossession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.\nState v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted).\n1. Actual Possession\nAs to actual possession, the State\u2019s evidence showed that defendant stated that \u201ca couple days\u201d before 26 June 2009 he \u201cwas playing with\u201d and \u201chad touched\u201d the guns. Without addressing any questions regarding the corpus delicti rule or the date on the indictment, we note that defendant\u2019s statement that he \u201cwas playing with\u201d the guns likely constituted \u201csubstantial evidence\u201d for purposes of the instruction on actual possession reaching the jury. See State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (noting there must be substantial evidence of each element of the crime charged and of defendant being the perpetrator of the crime charged in order for the State to survive a motion to dismiss, and thus have the charge submitted to the jury)\n2. Constructive Possession\nAs to constructive possession, where \u201cthe defendant did not have exclusive control of the location where contraband is found, constructive possession of the contraband materials may not be inferred without other incriminating circumstances.\u201d State v. Clark, 159 N.C. App. 520, 525, 583 S.E.2d 680, 683 (2003) (citation and quotation marks omitted). Here, the State\u2019s evidence showed that the apartment where the guns were found was not defendant\u2019s apartment and had numerous people in it at the time the guns were found; although defendant was not one of the numerous people actually even present in the apartment when the guns were found. Furthermore, the State presented no evidence that defendant was staying at the apartment. Under these facts, the State would need to present evidence of \u201cother incriminating circumstances\u201d which might connect defendant to the guns in some way for the trial court to properly instruct the jury on constructive possession. Id.\nThe State contends that the evidence of constructive possession of the pistol was:\nDefendant told police that: (1) he had played with the gun; (2) his fingerprints would be found on the gun; (3) he saw the gun in his parents\u2019 apartment because he saw it when Ra-Ra brought it in the house.\nThe fact that \u201c [defendant told police that... he had played with the gun\u201d and that \u201chis fingerprints would be found on the gun\u201d is evidence of actual possession at the time he \u201cplayed with\u201d the pistol and not evidence of constructive possession a few days later. See State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986) (\u201cA person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.\u201d (emphasis added)). Thus, the State\u2019s evidence of constructive possession consists of the fact that defendant \u201csaw the gun in his parents\u2019 apartment because he saw it when Ra-Ra brought it in the house.\u201d The fact that defendant saw a third party bring a pistol into an apartment which did not belong to him does not demonstrate that defendant had \u201cthe power and intent to control [the pistol\u2019s] disposition^] \u201d particularly in light of the fact that defendant was not even in the apartment at the time the pistol was discovered and there was no evidence that the defendant stayed in the apartment. Alston, 131 N.C. App. at 519, 508 S.E.2d at 318; see State v. Marshall, 206 N.C. App. 580, 584, 696 S.E.2d 894, 898 (2010) (\u201cThe evidence here shows only that defendant had an opportunity to steal the Suburban from the gas station. It neither demonstrates nor implies that defendant was aware that the Suburban was parked outside his residence, that he was at home during the hour or so during which the Suburban would have arrived on his street, that he regularly utilized that location for his personal use, nor that that portion of the public street was any more likely to be under his control than the control of other members of the public or other residents of that street. The Suburban\u2019s location on a public street clearly was not under the exclusive control of defendant, and the additional circumstances recounted by the State do not support an inference that defendant had the intent and capability to maintain control and dominion over the Suburban parked there. We hold that the trial court erred in instructing the jury on constructive possession because the evidence did not support such an instruction.\u201d (citation and quotation marks omitted)). Accordingly, we conclude that the jury was erroneously instructed on constructive possession.\nC. Analysis\nWhen we \u201cexamine the entire record[,]\u201d as we must, Tadeja, 191 N.C. App. at 446, 664 S.E.2d at 408, we understand why the jury was confused. The jury was presented with an instruction on both actual and constructive possession. The evidence could only possibly support an instruction on actual possession. However, the State specifically told the jury not to consider actual possession. While the State\u2019s arguments are neither evidence nor jury instructions, they still likely affected the jury\u2019s consideration of the element of possession. This left the jury to consider only constructive possession, which the evidence did not support, and thus such instruction should never have been given. In light of this odd situation, we do believe that the trial court\u2019s failure to further inquire into and answer the jury\u2019s questions specifically regarding possession \u201chad a probable impact on the jury\u2019s finding of guilt\u201d that constituted plain error. Id. Indeed, it is entirely possible that this error may have changed the outcome of the case, as we ourselves, even with the luxuries of a written record and ample time to research and consider the instructions and issues, found the instructions confusing in the context of the evidence and arguments.\nIII. Conclusion\nWe conclude that the trial court\u2019s failure to adequately address the jury\u2019s questions resulted in plain error. Accordingly, we grant defendant a new trial.\nNEW TRIAL.\nChief Judge MARTIN and Judge GEER concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "M. Alexander Chams, for defendant-appellant.", "Attorney General Roy A. Cooper, III, by David L. Elliot, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERECK DANIELLE PERRY, Defendant\nNo. COA12-322\n(Filed 18 September 2012)\nFirearms and Other Weapons \u2014 possession of firearm by felon \u2014 jury question \u2014 possession\u2014plain error\nThe trial court committed plain error in a possession of a firearm by a felon case by failing to further inquire into and answer the jury\u2019s questions specifically regarding possession. The error had a probable impact on the jury\u2019s finding of guilt.\nAppeal by defendant from judgment entered on or about 31 August 2011 by Judge Paul G. Gessner in Superior Court, Wake County. Heard in the Court of Appeals 27 August 2012.\nM. Alexander Chams, for defendant-appellant.\nAttorney General Roy A. Cooper, III, by David L. Elliot, for the State." }, "file_name": "0813-01", "first_page_order": 823, "last_page_order": 830 }