State v. Clark

583 S.E.2d 680, 159 N.C. App. 520, 2003 N.C. App. LEXIS 1491
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 2003
DocketCOA02-964
StatusPublished
Cited by13 cases

This text of 583 S.E.2d 680 (State v. Clark) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 583 S.E.2d 680, 159 N.C. App. 520, 2003 N.C. App. LEXIS 1491 (N.C. Ct. App. 2003).

Opinions

GEER, Judge.

Defendant Kevin Clark was found guilty of possession of a firearm by a felon and of robbery with a dangerous weapon. On appeal, defendant raises four issues: (1) Whether the trial court erred in denying his motion to dismiss both charges based on the insufficiency of the evidence; (2) whether the trial court erred in admitting certain hearsay evidence; (3) whether defense counsel’s failure to present evidence of a co-defendant’s inculpatory statements constituted ineffective assistance of counsel; and (4) whether the trial court erred in denying defendant’s motion for a mistrial. We find no error in defendant’s trial, but dismiss defendant’s ineffective assistance of counsel assignment of error without prejudice to its being asserted in a later motion for appropriate relief.

Facts

The State’s evidence tended to show that on 1 May 2001 at approximately 5:30 p.m., an armed robbery occurred at the Shell gas station and Rosemart Food Store located at 901 Linden Avenue, Oxford, North Carolina. At the time of the robbery, three store employees were at work: William Flanagan, who performs bookkeeping and computer-related operations for Rosemart, a new clerk Dana, and a second clerk Danita. Mr. Flanagan was helping the new clerk with the register and bagging when he heard Danita, who was at the front register, gasp. Mr. Flanagan looked up and saw a man pointing a gun at him.

The gunman told the two clerks to sit down and directed Mr. Flanagan to put the money from the cash register in a plastic bag that the gunman was holding. Mr. Flanagan showed him that there was no money in that particular register and offered to go to the other register. Mr. Flanagan opened the second register, removed the drawer from the register, and pushed it down the counter so that it was in front of the gunman. The gunman, who Mr. Flanagan later identified [523]*523as Damon Terry, took approximately $210.00 from the drawer and left the store through a back door. Mr. Flanagan did not see Terry get in any car, but he did see a Jeep leave the parking lot.

Officer Anthony Boyd of the Oxford City Police was on patrol and driving near the Shell station when two men ran towards his car yelling, “Those guys are robbing the Shell Station.” Officer Boyd radioed dispatch, advised them of the possible armed robbery, and then pulled into a parking lot adjacent to the Shell station to observe the station’s back door. Officer Boyd had just returned to his car and was driving back to the front of the Shell station when the same two men who had approached him before told him that he had just missed the robbers. The men told Officer Boyd that the robbers were in a gray Jeep and pointed out the direction that the Jeep had gone.

Officer Boyd radioed dispatch and reported that he was pursuing the Jeep. As he headed in the direction indicated by the two observers, he spotted the gray Jeep. Two other officers in separate patrol cars, Corporal Gresham and Officer Kearney, joined him to provide backup. Once the gray Jeep was no longer traveling in a residential area, Officer Boyd turned on his blue lights and stopped the Jeep.

Corporal Gresham used his PA system to order the occupants of the Jeep to exit the car. Defendant exited first from the driver’s seat, followed by Anthony Peace from the front passenger seat. Damon Terry, who had been lying down on the back seat, left the Jeep last. The officers secured the men in patrol units.

Officer Kearney conducted an initial search of the Jeep, starting with the driver’s compartment. When he opened the door, he could see the handle of a .38 derringer protruding from under the driver’s seat. When he checked behind the driver’s seat, he found a nylon lunch box that contained a black revolver, which was ultimately identified as the gun used in the robbery. On the other side of the car, he found a brown paper bag containing $210.00 in cash stuffed under the passenger seat and a hat and gloves on the back seat. Both guns were fully loaded.

Defendant was indicted for felonious possession of a firearm by a felon in violation of N.C. Gen. Stat. § 14-415.1 (2001) and for robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14-87 (2001). Defendant was tried at the 11 February 2002 Criminal Session of Granville County Superior Court and on 14 February 2002 was [524]*524found guilty of both charges. The trial judge sentenced defendant to a minimum of 72 months and a maximum of 96 months.

I

Defendant first argues that the trial court erred in denying his motions to dismiss both charges due to the insufficiency of the evidence. In considering a motion to dismiss in a criminal case, the trial judge must decide whether there is substantial evidence of each element of the offense charged. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. In reviewing a trial court’s denial of a motion to dismiss, the appellate court views the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence, and resolving any contradictions in the evidence in favor of the State. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994).

It does not matter if the State has relied upon circumstantial, as opposed to direct, evidence. As our Supreme Court has stated:

Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. The evidence need only permit a reasonable inference of the defendant’s guilt of the crime charged in order for that charge to be properly submitted to the jury. Once the court determines that a reasonable inference of the defendant’s guilt may be drawn from the circumstances, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.

Id. (internal quotation marks and citations omitted).

Possession of a Firearm bv a Felon

N.C. Gen. Stat. § 14-415.1 provides that it is unlawful:

for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).

[525]*525Defendant challenges only the sufficiency of the evidence to establish his possession, custody, care, or control of the .38 derringer found under the driver’s seat.

As this Court has previously explained, “Possession 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.” State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted).

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State v. Clark
583 S.E.2d 680 (Court of Appeals of North Carolina, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
583 S.E.2d 680, 159 N.C. App. 520, 2003 N.C. App. LEXIS 1491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-ncctapp-2003.