An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 25-536
Filed 1 April 2026
Madison County, Nos. 23CR000085-560, 23CR000144-560, 23CR249350-560
STATE OF NORTH CAROLINA
v.
JENNIFER LEE BLACK-ROBERTS, Defendant.
Appeal by defendant from judgment entered 19 December 2024 by Judge Gary
M. Gavenus in Madison County Superior Court. Heard in the Court of Appeals 13
January 2026.
Attorney General Jeff Jackson, by Assistant Attorney General Mia B. Bass, for the State.
Joseph M. Jennings, for defendant-appellant.
FLOOD, Judge.
Defendant Jennifer Lee Black-Roberts appeals her convictions for possession
of methamphetamine, possession of a firearm by a felon, and attaining habitual felon
status. On appeal, Defendant argues the trial court: first, erred by admitting
speculative and inferential testimony over defense counsel’s objection; second, erred
by denying Defendant’s motion to dismiss for insufficient evidence; and third, plainly STATE V. BLACK-ROBERTS
Opinion of the Court
erred by failing to properly instruct the jury as to the circumstances under which it
could infer constructive possession of a firearm. Upon careful review, we conclude the
trial court: first, did not err by admitting witness testimony, where the testimony
consisted of a shorthand statement of fact; second, did not err in denying Defendant’s
motion to dismiss for insufficient evidence, where the State presented “other
incriminating circumstances” to support a finding of constructive possession; and
third, did not plainly err in instructing the jury in accordance with North Carolina
pattern jury instruction for constructive possession, where the trial court properly
instructed the jury it could infer constructive possession based on Defendant’s status
as the driver of a vehicle.
I. Factual and Procedural Background
On 3 July 2023, Defendant was indicted for felonious possession of
methamphetamine and possession of a firearm by a felon. On 13 November 2023,
Defendant was indicted for having attained habitual felon status.
The evidence presented by the State at trial showed that, on the afternoon of
4 March 2023, Defendant was driving a blue, Ford F-350 truck on Calvin Edney Road
in Mars Hill, North Carolina. At approximately 2:00 p.m., Officer Bronis Phillips of
the Mars Hill Police Department observed the truck cross the double yellow lines of
the road multiple times. Officer Phillips started to follow the truck; as he was
following the truck, he watched it stop in the middle of the road, accelerate quickly,
and continue to swerve. Officer Phillips then activated his blue lights and sirens to
-2- STATE V. BLACK-ROBERTS
initiate a traffic stop, and the truck stopped in the road.
Defendant and Rick Lamb, the registered owner of the truck, were the only
occupants in the truck. When Officer Phillips approached the truck, he asked
Defendant, who was in the driver’s seat, for identification. In response, Defendant
claimed she lost her identification but provided Officer Phillips with her name and
birth date. Defendant also told Officer Phillips that she was using the truck to
practice her driving so she could get her license back.
After Defendant gave her information to Officer Phillips, he “had the sheriff’s
office . . . begin running it, trying to find her information[.]” As he was waiting for her
information to come back from the sheriff’s office, Officer Phillips observed firearm
ammunition on the truck’s center console. He asked Defendant if there were any
firearms in the truck, to which Defendant replied that “she couldn’t possess firearms
because she was a felon.” During their conversation, Officer Phillips also noticed
Defendant was “rocking forward and backwards” and kept moving “her legs . . .
forward and backwards.” Eventually, Officer Phillips observed a handgun “shoved
down in between” the driver’s seat and the middle console.
For his personal safety, Officer Phillips asked Defendant to step out of the
truck. Once Defendant exited the truck, Officer Phillips asked her why she was trying
to conceal the firearm, and Defendant replied, “I don’t know.” Officer Phillips
retrieved the firearm that was between the driver’s seat and middle console, as well
as an extra magazine that was in the driver’s door. After retrieving the firearm,
-3- STATE V. BLACK-ROBERTS
Officer Phillips asked Defendant if there were any illegal items in the car, to which
Defendant responded, “marijuana.”
Once the sheriff’s office confirmed that Defendant was a convicted felon, Officer
Phillips placed Defendant under arrest. Defendant then asked Officer Phillips to
retrieve some rent money out of her pocketbook located in the backseat of the truck.
Officer Phillips found Defendant’s pocketbook, along with some other clothing items,
on the backseat. When Officer Phillips opened the pocketbook, he discovered “a small
glass container that contained a white crystal-like substance.” After conducting a
presumptive field test on the substance found in the small glass container, Officer
Phillips determined that the substance was methamphetamine.
At trial, Officer Phillips testified to the events as described above. As he was
testifying about Defendant’s behavior during the traffic stop, Officer Phillips stated
that Defendant kept “moving forward and backwards in the seat[,]” and was “trying
to obstruct [his] view of sight.” Defense counsel objected to Officer Phillips’s
testimony. After the trial court overruled defense counsel’s objection, Officer Phillips
continued to describe how Defendant’s movements appeared to be an effort to
“obscur[e his] view of a handgun that [he] later observed between the driver[’]s seat
and the middle console.” Counsel for Defendant did not renew her objection.
Defendant moved to dismiss both charges at the close of the State’s evidence
and again at the close of all evidence. The trial court denied both motions.
On 15 May 2024, the jury returned a verdict finding Defendant guilty of
-4- STATE V. BLACK-ROBERTS
possession of methamphetamine, possession of a firearm by a felon, and attaining
habitual felon status. Following Defendant’s sentencing hearing, the trial court
entered two judgments. The first judgment sentenced Defendant to 44 to 65 months’
imprisonment for her possession of methamphetamine conviction. The second
judgment sentenced Defendant to 110 to 144 months’ imprisonment, to run
consecutively with the first judgment, for her possession of a firearm by a felon and
habitual status conviction.
Defendant gave timely notice of appeal in open court.
II. Jurisdiction
This Court has jurisdiction to hear an appeal from a final judgment of a
superior court pursuant to N.C.G.S. §§ 7A-27(b) and 15A-1444(a) (2023).
III. Analysis
On appeal, Defendant argues the trial court (A) erred by admitting Officer
Phillips’s testimony over Defendant’s objection; (B) erred by denying Defendant’s
motion to dismiss for insufficient evidence; and (C) plainly erred by failing to instruct
the jury on the circumstances from which it could infer constructive possession of a
firearm. We address each argument, in turn.
A. Lay Opinion Testimony
Defendant first argues the trial court erred by admitting Officer Phillips’s
testimony over Defendant’s objection. Specifically, Defendant asserts Officer
Phillips’s testimony regarding Defendant’s behavior consisted of inadmissible
-5- STATE V. BLACK-ROBERTS
speculative testimony in violation of Rule 602 and inadmissible opinion testimony by
a lay witness in violation of Rule 701. We disagree.
1. Preservation
As a threshold issue, the State argues this issue is not preserved for appellate
review. Specifically, the State argues Defendant’s initial objection to Officer Phillips’s
testimony was not sufficient to properly preserve this issue for appellate review
because, after the trial court overruled defense counsel’s objection, “Officer Phillips
continued to present the same or substantially similar testimony during direct and
cross examination, without further objection from defense counsel.” In response,
Defendant argues this issue is preserved because she timely objected and because
pursuant to N.C.G.S. § 15A-1446(d)(10), she did not need to renew her objection.
“In order to preserve a question for appellate review, a party must have
presented the trial court with a timely request, objection or motion, stating the
specific grounds for the ruling sought if the specific grounds are not apparent.” State
v. Eason, 328 N.C. 409, 420 (1991) (citing N.C. R. App. P. 10(b)(1)). “To be timely, an
objection to the admission of evidence must be made at the time it is actually
introduced at trial.” State v. Corbett, 376 N.C. 799, 825 (2021) (citation omitted).
A defendant waives her right to raise an evidentiary issue on appeal “[w]here
evidence is admitted over objection[,] and the same evidence has been previously
admitted or is later admitted without objection, [since] the benefit of the objection is
lost.” State v. Alford, 339 N.C. 562, 570 (1995). “An objecting party[, however,] does
-6- STATE V. BLACK-ROBERTS
not waive its objection to evidence the party contends is inadmissible when that party
seeks to explain, impeach, or destroy its value on cross-examination[.]” State v.
Anthony, 354 N.C. 372, 408 (2001). Further, under N.C.G.S. § 15A-1446(d)(10),
appellate review is preserved in the absence of a party’s renewed objection where the
party challenges the “[s]ubsequent admission of evidence involving a specified line of
questioning when there has been an improperly overruled objection to the admission
of evidence involving that line of questioning.” N.C.G.S. § 15A-1446(d)(10) (2023).
Here, Defendant correctly points out defense counsel immediately objected to
Officer Phillips’s testimony regarding Defendant’s behavior during the State’s direct
examination, which included:
Q. . . . did you have any other, get any other information from her at that time or make any other observations about her or the vehicle she was in?
A. She’d stated that she was [in] the process of getting her driver[’]s license back and that she was trying to learn to drive that vehicle. . . . And as I was making contact with her, I noticed in the middle console, uh, ammunition.
Q. When you say ammunition, you mean--
A. Bullets.
Q. Bullets? And based on that observation, what, if anything, did you do?
A. I asked if there was [sic] any firearms in the vehicle.
Q. Was she able to advise you as to whether or not there were any?
A. She told me that she couldn’t possess firearms because
-7- STATE V. BLACK-ROBERTS
she was a felon.
Q. All right. What happened next?
A. As I was waiting for the information to come back from the sheriff’s office, I did notice how she kept moving forward and backwards in the seat, uh, trying to obstruct my view of sight.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q. ([COUNSEL FOR THE STATE]) Describe what you mean when you say she was moving back and forth, trying to obscure your vision.
A. She was constantly doing this in the driver[’s] seat (indicated).
Q. Rocking forward and backwards?
A. Yes, sir.
Q. Was there any other movement that she was making?
A. Her legs were going forward and backwards as well.
Q. Okay. And you said it appeared to be an effort to obscure some view of yours?
Q. What part of your view was it obscuring?
A. It was obscuring my view of a handgun that I later observed between the driver[’]s seat and the middle console.
Defendant’s behavior was not discussed again until defense counsel attempted to
explain and discredit Officer Phillips’s testimony on cross-examination:
-8- STATE V. BLACK-ROBERTS
Q. And so you asked my client if there were any firearms in the vehicle and she said just, frankly, or no, or I’m not allowed to be around firearms, correct? I’m a felon. She said those words, right?
A. Yes, sir, she made that statement.
....
Q. [] Do you have any reason to suspect she was lying about that statement?
Q. And what is that?
A. The fact that she was trying to conceal it with her, uh, by moving forward and backwards, rocking in the vehicle.
Q. Okay, so you’re describing that action as, you’re making a conclusion that she was trying to conceal it, but what exactly was she doing? You said she was rocking back and forth.
A. Yes, sir. I’d actually asked her why she was trying to conceal it.
Q. But you said she was rocking back and forth, right?
A. Sorry?
Q. You said she was rocking back and forth.
A. Yeah, her body, going back and forth in the seat.
Q. Is that consistent with somebody that perhaps was nervous?
A. Typically after a vehicle stop, that nervousness subsides a great deal. On the initial approach people can become nervous, obviously, with blue lights behind them, but typically the longer you’re sitting there talking to them and explaining things, that nervousness will subside.
-9- STATE V. BLACK-ROBERTS
Q. Okay, then how long does it normally take for nervousness to subside?
A. Once you introduce yourself it doesn’t take very long.
Q. But you admitted that she admitted that she didn’t have a license, right?
Q. And she was driving the vehicle.
A. Yes, sir, she was.
Q. And she admitted there was, at some location in the vehicle, marijuana, right?
A. Yes, sir, that was later.
Q. But she admitted those things.
Q. Would she have reason to be nervous about that? Are those violations of North Carolina criminal law?
A. Yes, they are violations.
Contrary to the State’s contention, defense counsel’s attempt to explain Officer
Phillips’s testimony on cross-examination did not waive her objection to the
admission of Officer Phillips’s testimony regarding Defendant’s behavior. See
Anthony, 354 N.C. at 408.
As such, we are left with defense counsel’s sole objection to Officer Phillips’s
testimony, which, as the State concedes, was a timely objection to Officer Phillips’s
statement. See Corbett, 376 N.C. at 825. Any further questions regarding Defendant’s
behavior would be preserved as a matter of law if the objection was erroneously
- 10 - STATE V. BLACK-ROBERTS
overruled. See N.C.G.S. § 15A-1446(d)(10) (2023). We need not address N.C.G.S. §
15A-1446(d)(10), however, because defense counsel immediately objected to Officer
Phillips’s testimony that Defendant was trying to obscure his view. See Corbett, 376
N.C. at 825 (holding the defendants’ timely objection to blood spatter evidence
preserved argument on appeal even though the defendants did not object throughout
the witness’s testimony). Therefore, this issue is preserved for our appellate review.
See Eason, 328 N.C. at 420.
2. Officer Phillips’s Testimony
Defendant argues the trial court impermissibly overruled her objection
because Officer Phillips’s testimony regarding Defendant’s efforts to obscure his view
of the handgun was inadmissible under Rule 602, as it was “mere speculation[,]” and
under Rule 701, as Officer Phillips offered an opinion for which no foundation was
laid. We disagree.
Ordinarily, this Court “review[s] a trial court’s ruling on the admissibility of
lay opinion testimony for abuse of discretion.” State v. Belk, 201 N.C. App. 412, 417
(2009); State v. Washington, 141 N.C. App. 354, 362 (2000) (“[W]hether a lay witness
may testify as to an opinion is reviewed for abuse of discretion.”). “An abuse of
discretion results when the court’s ruling is manifestly unsupported by reason or is
so arbitrary that it could not have been the result of a reasoned decision.” State v.
Whaley, 362 N.C. 156, 160 (2008) (citation and internal quotation marks omitted). “In
our review, we consider not whether we might disagree with the trial court, but
- 11 - STATE V. BLACK-ROBERTS
whether the trial court’s actions are fairly supported by the record.” State v. Williams,
363 N.C. 689, 702 (2009).
Rule 602 of our Rules of Evidence prohibits a witness from testifying “to a
matter unless evidence is introduced sufficient to support a finding that he has
personal knowledge of the matter.” N.C.G.S. § 8C-1, Rule 602 (2023). Generally,
“[p]ersonal knowledge includes what a witness saw; what a witness heard; what a
witness smelled; what a witness feels, knows, or believes regarding his or her own
mind; and what a witness learns from other reliable sources[.]” State v. Mitchell, 270
N.C. App. 136, 140–41 (2020) (citation modified). “The purpose of Rule 602 is to
prevent a witness from testifying to a fact of which he has no direct personal
knowledge.” State v. Cole, 147 N.C. App. 637, 645 (2001). Thus, “testimony that is
mere speculation is inadmissible[,]” State v. Garcell, 363 N.C. 10, 36 (2009), and “a
lay witness generally may not testify as to the contents of another person’s mind
without providing a foundation to support that testimony[,]” Mitchell, 270 N.C. App.
at 141 (concluding the trial court erred in allowing a witness to testify that the
defendant knew her brother was planning a shooting because the State failed to lay
a sufficient foundation establishing how the witness knew this information).
Relatedly, under Rule 701 of our Rules of Evidence, when a lay witness’s
statement is in the form of an opinion or inference, his statement “is limited to those
opinions or inferences which are (a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of his testimony or the determination of a
- 12 - STATE V. BLACK-ROBERTS
fact in issue.” N.C.G.S. § 8C-1, Rule 701 (2023). “When questioning calls for testimony
based on opinion or inference, a foundation must first be laid that the testimony is
rationally based on the lay witness’s perception.” Mitchell, 270 N.C. App. at 144.
Our Supreme Court, however, has interpreted Rule 701
to allow evidence which can be characterized as a shorthand statement of fact, or, in other words, the instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time[.]
State v. Roache, 358 N.C. 243, 293–94 (2004) (citations and internal quotation marks
omitted); see State v. McVay, 174 N.C. App. 335, 339 (2005) (holding various law
enforcement officers’ testimony that the defendant “tried to kill” another officer was
admissible as a shorthand statement because their statements were based on their
perceptions and the impact of those perceptions); State v. Johnston, 344 N.C. 596, 609
(1996) (holding the witness’s testimony that the defendant “was going to do
something” was admissible as a shorthand statement because it was an
instantaneous conclusion based on the witness’s observation of “a variety of facts”).
Thus, “[o]pinion evidence as to the demeanor of a criminal defendant is admissible
into evidence.” State v. Shoemaker, 334 N.C. 252, 259 (1993) (citation omitted).
Here, the State’s questions were designed to ascertain what Officer Phillips
observed after he initiated the traffic stop and how he discovered the firearm. Officer
Phillips’s testimony that he noticed Defendant “kept moving forward and backwards
- 13 - STATE V. BLACK-ROBERTS
in the seat, . . . trying to obstruct [his] view of sight” was admissible because it was
based on what he observed. See Mitchell, 270 N.C. App. at 140–41. Further, the
portion of Officer Phillips’s testimony that Defendant was “trying to obstruct [his]
view of sight” was admissible as a shorthand statement of fact because it was based
on his perception of Defendant’s demeanor, Defendant’s admission “that she couldn’t
possess firearms because she was a felon[,]” and his observation of ammunition on
the center console. See McVay, 174 N.C. App. at 339; see also Johnston, 344 N.C. at
609. The description of Defendant’s behavior also explained to the jury how Officer
Phillips discovered the firearm that was “between the driver[’]s seat and the middle
console.” Therefore, the trial court did not abuse its discretion by allowing Officer
Phillips to testify regarding Defendant’s behavior.
B. Motion to Dismiss
Defendant next argues the trial court erred by denying her motion to dismiss
the charge of possession of a firearm by a felon due to insufficiency of evidence.
Specifically, Defendant claims the State failed to show that she constructively
possessed the firearm found in the truck. We disagree.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62 (2007). “Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment for that of the
lower tribunal.” State v. Kennedy, 276 N.C. App. 381, 383 (2021) (citation omitted).
“When ruling on a defendant’s motion to dismiss, the trial court must
- 14 - STATE V. BLACK-ROBERTS
determine whether there is substantial evidence (1) of each essential element of the
offense charged, and (2) that the defendant is the perpetrator of the offense.” Smith,
186 N.C. App. at 62. “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71,
78 (1980). Additionally, “[w]hen considering a motion to dismiss, the trial court must
view the evidence in the light most favorable to the State, and the State is entitled to
every reasonable inference to be drawn from that evidence.” State v. Barnett, 141 N.C.
App. 378, 382 (2000), aff’d, 354 N.C. 350 (2001). The trial court “is concerned only
with the sufficiency of the evidence to carry the case to the jury; it is not concerned
with the weight of the evidence.” State v. Lowery, 309 N.C. 763, 766 (1983). Thus, if
the trial court determines there is substantial evidence “to support a finding that the
offense charged has been committed and that the defendant committed it, the case is
for the jury and the motion to dismiss should be denied. This is true, even if the
evidence likewise permits a reasonable inference of the defendant’s innocence.” State
v. Butler, 356 N.C. 141, 145 (2002) (citations and internal quotation marks omitted).
“In borderline or close cases, our courts have consistently expressed a preference for
submitting issues to the jury.” State v. Blagg, 377 N.C. 482, 489 (2021) (citation
omitted).
Under N.C.G.S. § 14-415.1(a), “[i]t is unlawful for any person who has been
convicted of a felony to purchase, own, possess, or have in the person’s custody, care,
or control any firearm or any weapon[.]” N.C.G.S. § 14-415.1(a) (2023). To establish
- 15 - STATE V. BLACK-ROBERTS
the crime of possession of a firearm by a felon, the State must prove the following two
elements: “(1) [the] defendant was previously convicted of a felony; and (2) thereafter
possessed a firearm.” State v. Wood, 185 N.C. App. 227, 235 (2007). The parties in the
instant case stipulated to the fact that Defendant had been convicted of a felony in
May 2016. As such, the only element we must consider is possession.
“Possession of a firearm may be actual or constructive.” State v. Taylor, 203
N.C. App. 448, 459 (2010). This Court has previously explained the difference
between actual and constructive possession of a firearm:
Actual possession requires that the defendant have physical or personal custody of the firearm. In contrast, the defendant has constructive possession of the firearm when the weapon is not in the defendant’s physical custody, but the defendant is aware of its presence and has both the power and intent to control its disposition or use. When the defendant does not have exclusive possession of the location where the firearm is found, the State is required to show other incriminating circumstances in order to establish constructive possession. Constructive possession depends on the totality of the circumstances in each case.
Id. at 459 (citations omitted). “In the context of a car, a defendant does not have
exclusive possession of a car if the car has other occupants.” State v. Livingston, 290
N.C. App. 526, 529 (2023) (citing State v. Bailey, 233 N.C. App. 688, 691 (2014)). Thus,
“the State is required to show other incriminating circumstances in order to establish
constructive possession.” Taylor, 203 N.C. App. at 459. In determining whether other
incriminating circumstances support a finding of constructive possession, this Court
considers the following factors:
- 16 - STATE V. BLACK-ROBERTS
(1) the defendant’s ownership and occupation of the property . . . ; (2) the defendant’s proximity to the contraband; (3) indicia of the defendant’s control over the place where the contraband is found; (4) the defendant’s suspicious behavior at or near the time of the contraband’s discovery; and (5) other evidence found in the defendant’s possession that links the defendant to the contraband.
State v. Chekanow, 370 N.C. 488, 496 (2018). “No one factor controls, and courts must
consider the totality of the circumstances.” Id.
Importantly, however, this Court has held that, even if a defendant has
nonexclusive control over a vehicle, the defendant’s “status as the driver is sufficient
to give rise to an inference of possession.” See State v. Wirt, 263 N.C. App. 370, 376
(2018) (citing State v. Best, 214 N.C. App. 39, 53 (2011)); see also State v. Mitchell,
224 N.C. App. 171, 178 (2012) (“Power to control the vehicle is sufficient evidence
from which it is reasonable to infer possession.” (citation and internal quotation
marks omitted)). Further, “[a] situation where a passenger in a vehicle could have
moved or hidden the contraband within the vehicle does not contradict a defendant’s
control of the vehicle.” State v. Baublitz, Jr., 172 N.C. App. 801, 810 (2005) (citation
omitted). “Where the driver is in control of the car . . . and the controlled substance is
found in the car . . . such evidence is sufficient to withstand motion for dismissal.”
State v. Rogers, 32 N.C. App. 274, 277 (1977).
In the instant case, as the State concedes, Defendant did not have exclusive
possession of the truck in which Officer Phillips found the firearm. See Livingston,
290 N.C. App. at 529. Although Defendant did not have exclusive possession of the
- 17 - STATE V. BLACK-ROBERTS
truck, her status as the driver of the truck “is sufficient to give rise to an inference of
possession[.]” See Wirt, 263 N.C. App. at 376; Mitchell, 224 N.C. App. at 178; Baublitz,
172 N.C. App. at 810.
Moreover, here, the State presented additional “incriminating circumstances”
from which a reasonable juror could conclude Defendant constructively possessed the
firearm. See Taylor, 203 N.C. App. at 459. First, Defendant, as the driver, was in close
proximity to the firearm that had been shoved down between the driver’s seat and
the center console. Second, Officer Phillips testified that Defendant was “surrounded
by components of this firearm[,]” as the firearm was “on her right side, the one with
the mag[azine] inside it as well as the loaded round, and . . . the spare magazine was
on her left side.” Third, although Defendant may have been nervous about being
pulled over while driving on a suspended license, she told Officer Phillips, when
asked, that she didn’t know why she was trying to conceal the firearm from him.
Despite some of this evidence possibly supporting “a reasonable inference of the
defendant’s innocence[,]” there was substantial evidence, when viewed in the light
most favorable to the State, to support a finding that Defendant constructively
possessed the firearm. See Butler, 356 N.C. at 145. As such, the trial court did not err
in denying Defendant’s motion to dismiss.
C. Jury Instructions
Lastly, Defendant argues the trial court plainly erred by failing to instruct the
jury on the circumstances in which it could infer constructive possession. Specifically,
- 18 - STATE V. BLACK-ROBERTS
Defendant contends the jury instructions were incomplete and misled the jury to
believe it could “infer constructive possession based solely on [D]efendant’s position
in the driver’s seat” because the trial court did not instruct the jury to consider “other
incriminating circumstances.”
Defendant concedes she did not object to the allegedly erroneous jury
instructions at trial; accordingly, we review the trial court’s jury instructions for plain
error. See State v. Collington, 375 N.C. 401, 411 (2020). Plain error arises when a trial
court makes a “fundamental error, something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done[.]” State v. Odom, 307 N.C. 655, 660
(1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert.
denied, 459 U.S. 1018 (1982)). Under the plain error rule, the defendant “must
demonstrate that a fundamental error occurred at trial. To show that an error was
fundamental, a defendant must establish prejudice—that, after examination of the
entire record, the error had a probable impact on the jury’s finding that the defendant
was guilty.” State v. Lawrence, 365 N.C. 506, 518 (2012) (citation modified). “In other
words, the appellate court must determine that the error in question ‘tilted the scales’
and caused the jury to reach its verdict convicting the defendant.” State v. Walker,
316 N.C. 33, 39 (1986) (citing State v. Black, 308 N.C. 736, 741 (1983)).
When considering an alleged error in jury instructions, “[t]his Court reviews
jury instructions contextually and in [their] entirety. The charge will be held to be
sufficient if it presents the law of the case in such manner as to leave no reasonable
- 19 - STATE V. BLACK-ROBERTS
cause to believe the jury was misled or misinformed[.]” State v. Blizzard, 169 N.C.
App. 285, 296–97 (2005) (citation and internal quotation marks omitted). The purpose
of a jury instruction “is to give a clear instruction which applies the law to the
evidence in such manner as to assist the jury in understanding the case and in
reaching a correct verdict.” State v. Smith, 360 N.C. 341, 346 (2006) (citation omitted).
As this Court has previously recognized, the North Carolina Pattern Jury
Instructions are “[t]he preferred method of instructing the jury[.]” State v. Solomon,
117 N.C. App. 701, 706 (1995). “Jury instructions in accord with a previously
approved pattern jury instruction provide the jury with an understandable
explanation of the law.” State v. Ballard, 193 N.C. App. 551, 555 (2008) (citation
Here, the trial court instructed the jury regarding constructive possession as
follows:
A person has constructive possession of a substance and/or an article if the person does not have it on the person but is aware of its presence and has, either alone or together with others, both the power and intent to control its disposition or use. A person’s awareness of the presence of the substance and/or the article and the person’s power and intent to control its disposition or use may be shown by direct evidence or it may be inferred from the circumstances.
If you find beyond a reasonable doubt that a substance and/or an article was found in close physical proximity to the defendant, that would be a circumstance from which, together with other circumstances, you may infer that the defendant was aware of the presence of the substance
- 20 - STATE V. BLACK-ROBERTS
and/or the article and had the power and intent to control its disposition or use. However, the defendant’s physical proximity, if any, to the substance and/or the article does not by itself permit an inference that the defendant was aware of its presence or had the power or intent to control its disposition or use. Such an inference may be drawn only from this and other circumstances which you find from the evidence beyond a reasonable doubt.
If you find beyond a reasonable doubt that an article was found in a vehicle and that the defendant exercised control over that vehicle, whether or not the defendant owned it, this would be a circumstance from which you may infer that the defendant was aware of the presence of the article and had the power and intent to control its disposition or use.
(Emphasis added.) This language tracks the applicable pattern jury instruction for
constructive possession. See N.C.P.I.–Crim. 104.41. Nonetheless, Defendant argues
the jury instructions were incomplete because footnote one of N.C.P.I.–Crim. 104.41
implicitly requires the trial court to instruct the jury that constructive possession
could not be inferred without “other incriminating circumstances[.]” The footnote
directs the trial court to four cases “[w]here the doctrine of constructive possession
involving exclusive or nonexclusive control is involved[.]” See N.C.P.I.–Crim. 104.41.
n.1.
This Court addressed a strikingly similar argument in Wirt. In Wirt, the
defendant appealed his conviction of possession of a firearm by a felon and argued,
on appeal, that the trial court misled the jury by omitting “language articulating the
additional evidence rule as described in the footnote of the pattern jury instructions.”
- 21 - STATE V. BLACK-ROBERTS
263 N.C. App. at 378. In addressing the defendant’s argument, we distinguished the
four cases cited in the footnote on the basis that none of the cases “involve inferring
possession by the driver of a vehicle.” Id. at 378–79. Rather, we concluded that the
facts of the case were more analogous to Mitchell and held that the trial court properly
instructed the jury regarding constructive possession. Id. at 379. Although the jury
instructions accurately stated the law for constructive possession, we assumed
arguendo that the trial court erred by omitting the additional evidence rule and
proceeded to examine the incriminating circumstances the State had presented at
trial. Id. We subsequently concluded all the evidence—including the defendant’s
status as the driver—could have led a reasonable juror to believe the defendant
constructively possessed the firearm. Id. Further, the trial court specifically
instructed the jury that it may, but was not required to, find constructive possession
based on the defendant’s status as the driver. Id. As such, we held there was no
reversible error because the trial court “correctly instructed the jury that [the
d]efendant’s status as the driver was sufficient to support an inference of constructive
possession, and the jury was presented with additional evidence to consider that it
could infer constructive possession[.]” Id.
Similar to the jury instructions in Wirt, the jury instructions in the instant
case did not include an instruction regarding the need to find “other incriminating
circumstances.” See id. at 377–78. But, also like Wirt, the jury instructions here
accurately stated the law for constructive possession and informed the jury that it
- 22 - STATE V. BLACK-ROBERTS
was not required to find constructive possession based on Defendant’s status as the
driver. See id. at 379. Further, the State in this case presented evidence of other
incriminating circumstances from which the jury could reasonably conclude
Defendant constructively possessed the firearm, including the position of the firearm
between Defendant and the center console and her nervous behavior. Thus, even if
the instructions had been erroneous, Defendant has not shown that this assumed
“error had a probable impact on the jury’s finding that the defendant was guilty[.]”
See Lawrence, 365 N.C. at 518 (citation modified). Consequently, we hold the trial
court did not plainly err by failing to instruct the jury on the circumstances in which
it could infer constructive possession.
IV. Conclusion
Upon careful review, we conclude the trial court did not err by admitting
witness testimony, where the testimony consisted of a shorthand statement of fact;
did not err in denying Defendant’s motion to dismiss for insufficient evidence, where
the State presented “other incriminating circumstances” to support a finding of
constructive possession; and did not plainly err in instructing the jury in accordance
with the North Carolina pattern jury instruction for constructive possession, where
the trial court properly instructed the jury it could infer constructive possession based
on Defendant’s status as the driver of a vehicle.
NO ERROR.
Judges STROUD and GORE concur.
- 23 - STATE V. BLACK-ROBERTS
Report per Rule 30(e).
- 24 -