State v. Wynn

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-103

No. COA18-536-2

Filed 6 April 2021

Dare County, Nos. 16CRS000267, -050291; 17CRS000010

STATE OF NORTH CAROLINA

v.

GREGORY JEROME WYNN, JR., Defendant.

Appeal by defendant from judgments entered on or about 15 November 2017

by Judge Jerry R. Tillett in Superior Court, Dare County. Heard in the Court of

Appeals 13 February 2019 and opinion filed 5 March 2019. Remanded to this Court

by order of the North Carolina Supreme Court for further consideration in light of

State v. Golder, 374 N.C. 238, 839 S.E.2d 782 (2020).

Attorney General Joshua H. Stein, by Special Deputy Attorney General

Matthew Tulchin, for the State.

Anne Bleyman, for defendant-appellant.

STROUD, Chief Judge.

¶1 On remand from the North Carolina Supreme Court, we review defendant’s

first argument on appeal in accordance with State v. Golder, 374 N.C. 238, 839 S.E.2d

782 (2020). We conclude there was not sufficient evidence of a firearm, and thus

defendant’s conviction for possession of a firearm by a felon must be vacated. We also

conclude there was sufficient evidence of constructive possession of controlled

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substances, and thus defendant’s convictions for trafficking in heroin by possession,

possession with the intent to sell or deliver a controlled substance, and attaining the

status of habitual felon, remain intact. There is no error in the judgments entered

for trafficking in heroin by possession, possession with the intent to sell or deliver a

controlled substance, and attaining the status of habitual felon,

I. Background

¶2 We begin with the procedural and factual background of this case.

A. Procedural Background

¶3 Defendant appealed “his convictions for possession of a firearm by a felon,

trafficking in heroin by possession, possession with the intent to sell or deliver

cocaine, and attaining the status of habitual felon.” State v. Wynn, 264 N.C. App.

250, 824 S.E.2d 210, slip op. *1 (COA18-536) (2019) (unpublished) (“Wynn I”). This

Court concluded there was no error. See Wynn I, 264 N.C. App. 250, 824 S.E.2d 210.

Defendant filed a “petition for discretionary review and motion in the alternative to

remand” with the Supreme Court of North Carolina. State v. Wynn, 374 N.C. 427,

840 S.E.2d 781 (Mem) (2020). The Supreme Court allowed the petition for

discretionary review “for the limited purpose of remanding this case to the Court of

Appeals for further consideration in light of this Court’s decision in State v. Golder,

374 N.C. 238, 839 S.E.2d 782 (2020).” Id. We now take up defendant’s case “for the

limited purpose” of considering it in light of Golder.

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B. Factual Background

¶4 The background of this case was provided by this Court in Wynn I:

The State’s evidence tended to show that on 14

March 2016, the Dare County Sheriff’s Department

received a call regarding a suspicious person on Jones

Circle. Deputy Sheriff Andrew Creech noticed a screen

pulled out of a window of a home, and the window was

open; inside the house he saw defendant. Deputy Creech

tried to coax defendant outside of the house, but he would

not come as he claimed people were “after him.” Defendant

was “very active in the house” and [Deputy Creech saw

him] walking around much of the interior, heard slamming

doors or drawers, and saw defendant pulling up his pants.

Defendant eventually came out of the house with $2,216.00

in cash and a white substance on and in his nose.

Defendant told law enforcement he had a gun when he was

running to the house – he was running from the people he

claimed were “after him” -- but was not sure where he

dropped it.

The law enforcement officers called the man who

owned the house, [Mr. Gradeless,] and he allowed them to

search the house. Inside they found a black plastic bag

containing smaller red plastic baggies of cocaine and

heroin, digital scales, and a pistol magazine. The

homeowner said none of the items belonged to him. Law

enforcement then searched defendant’s home and found

several bullet holes, some from shots fired from inside the

house and some from shots fired from the outside into the

house.

Defendant was indicted for trafficking in heroin by

possession, possession with the intent to sell or deliver a

controlled substance, possession of a firearm by a felon, and

attaining the status of habitual felon. At defendant’s trial,

two witnesses testified that they had purchased heroin and

cocaine from defendant, always in a little red plastic baggie

similar to those recovered by law enforcement. A jury

found defendant guilty of all of the charges against him;

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defendant pled to attaining the status of habitual felon;

and the trial court entered judgments accordingly.

Defendant appeals.

Wynn I at *2-3.

II. Sufficiency of the Evidence

¶5 Defendant’s first argument on appeal challenged the sufficiency of the evidence

against him. See id. at *3. In Wynn I, this Court dismissed defendant’s argument for

failure to preserve the issue before the trial court. Id. at *3-6. In Golder, while

analyzing whether a motion to dismiss was adequate to preserve the issue of

sufficiency of the elements of the crimes, our Supreme Court held “under Rule 10(a)(3)

and our case law, defendant’s simple act of moving to dismiss at the proper time

preserved all issues related to the sufficiency of the evidence for appellate review.”

Golder, 374 N.C. at 246, 839 S.E.2d at 788.

A. Application of State v. Golder to Motion for Directed Verdict

¶6 Defendant’s attorney moved for a directed verdict at the close of the State’s

evidence:

“For the defense, Your Honor, at the close of the State’s

case, we would move for a directed verdict in favor of the

defendant. I do not care to argue that motion, however.”

The trial court denied the motion. Defendant did not

present any evidence and at the close of all of the evidence

his attorney stated, “I would just renew my motions.”

Wynn I at *3.

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¶7 The State contends that defendant’s motions for a directed verdict do not

suffice as a motion to dismiss pursuant to Rule 10(a)(3) as noted in Golder. See

generally id. The State cites no law for why the two motions – a motion for directed

verdict and a motion to dismiss – should be treated differently for purposes of Golder,

but instead simply relies upon the argument that Golder is applicable only to motions

to dismiss made under Rule 10(a)(3).

A motion for directed verdict is to test the legal

sufficiency of the evidence to take the case to the jury. This

is a high standard for the moving party, requiring a denial

of the motion if there is more than a scintilla of evidence to

support the non-movant’s prima facie case. In passing on

a motion for directed verdict, the trial court must consider

the evidence in the light most favorable to the nonmovant,

and conflicts in the evidence together with inferences

which may be drawn therefrom must be resolved in favor

of the nonmovant.

Coates v. Niblock Development Corp., 161 N.C. App. 515, 516–17, 588 S.E.2d 492, 493

(2003) (citations and quotation marks omitted).

¶8 “When granted, the common law motion for a directed verdict resulted in a

judgment on the merits in either a criminal or a civil case.” Cutts v. Casey, 278 N.C.

390, 419, 180 S.E.2d 297, 312 (1971). In State v. Clanton, our Supreme Court noted

that a motion to dismiss and a motion for a directed verdict are “interchangabl[e]”

terms that should be applied the same. See 278 N.C. 502, 504, 180 S.E.2d 5, 6 (1971)

(noting “[t]o survive a motion to dismiss, or for a directed verdict of not guilty, or for

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judgment as of nonsuit (used interchangeably in criminal prosecutions) the evidence

must be sufficient to permit a legitimate inference the defendant committed every

essential element of the crime charged” (emphasis added)).

¶9 Because our Supreme Court has noted a motion to dismiss and a motion for a

directed verdict are “interchangabl[e]” terms in criminal cases, we conclude

defendant’s motion for a directed verdict should be reviewed in the same manner as

a motion to dismiss. See id. Accordingly, “defendant’s simple act of moving to dismiss

at the proper time preserved all issues related to the sufficiency of the evidence for

appellate review.” Golder, 374 N.C. at 246, 839 S.E.2d at 788.

B. Motion for Directed Verdict

¶ 10 We thus consider whether the trial court erred in denying defendant’s motion

for directed verdict based on insufficiency of the evidence as to “his convictions for

possession of a firearm by a felon, trafficking in heroin by possession, possession with

the intent to sell or deliver cocaine, and attaining the status of habitual felon.” Wynn

I at *1.

1. Standard of Review

In ruling on a motion for a directed verdict or a motion to

dismiss, the trial court must determine whether the State

has offered substantial evidence of the defendant’s guilt on

every essential element of the crime charged. Substantial

evidence requires that the evidence must be existing and

real, not just seeming and imaginary. In considering the

evidence, the State is entitled to every reasonable inference

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that may be drawn therefrom. Contradictions and

discrepancies in the evidence are for the jury to decide. The

test for sufficiency of the evidence is the same regardless of

whether the evidence is circumstantial or direct. When a

motion for a directed verdict involves circumstantial

evidence in a case:

The court must decide whether a reasonable

inference of the defendant’s guilt may be

drawn from the circumstances shown. If so

the jury must then decide whether the facts

establish beyond a reasonable doubt that the

defendant is actually guilty.

State v. McKenzie, 122 N.C. App. 37, 45, 468 S.E.2d 817, 824 (1996) (citations and

brackets omitted).

2. Possession of a Firearm by a Felon

¶ 11 Defendant contends that the trial court erred in denying his motion for directed

verdict on the charge of possession of firearm by a felon because there was insufficient

evidence of the existence of a firearm. “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.” State v. Cunningham,

188 N.C. App. 832, 836, 656 S.E.2d 697, 700 (2008) (citation, quotation marks, and

brackets omitted); see N.C. Gen. Stat. §14-415.1 (2015).

¶ 12 In this case, the primary evidence of defendant’s possession of a firearm was

his statement to the officers that he had a gun before they arrived at the house.

“Defendant told law enforcement he had a gun when he was running to the house –

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he was running from the people he claimed were ‘after him’ – but was not sure where

he dropped it.” Wynn I at *2. The officers never found a gun, either in the house

where defendant was found, in defendant’s home, or in the area outside where

defendant said he dropped it before he entered the house.

¶ 13 The State contends sufficient evidence tended to show defendant possessed a

firearm “because the police recovered a 9mm pistol magazine from the house

defendant had broken into, defendant admitted to possessing a gun, and the police

found 9mm shell casings, bullet fragments, and bullet holes in defendant’s home.”

(Original in all caps.)

¶ 14 A pistol magazine was found in the house defendant had broken into, but a

magazine alone is not a firearm. See N.C. Gen. Stat. § 14–415.1(a) (2015) (“For the

purposes of this section, a firearm is (i) any weapon, including a starter gun, which

will or is designed to or may readily be converted to expel a projectile by the action of

an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer.”).

A pistol magazine alone is not a weapon “which will or is designed to or may readily

be converted to expel a projectile by the action of an explosive” nor is it a muffler or

silencer. Id. As for the shell casings and bullet fragments and holes found at

defendant’s home, there no evidence as to when a gun may have been fired or who

fired it. Thus, the evidence presents an issue of corpus delicti. See generally State v.

Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985).

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¶ 15 Where a defendant has confessed to a crime, this confession is not sufficient

evidence to support a conviction unless there is “substantial independent evidence

tending to establish” the “trustworthiness” of the confession “including facts” which

strongly corroborate the “essential facts and circumstances embraced in the

defendant’s confession.” Id.

We adopt a rule in non-capital cases that when the State

relies upon the defendant’s confession to obtain a

conviction, it is no longer necessary that there be

independent proof tending to establish the corpus delicti of

the crime charged if the accused’s confession is supported

by substantial independent evidence tending to establish

its trustworthiness, including facts that tend to show the

defendant had the opportunity to commit the crime.

We wish to emphasize, however, that when

independent proof of loss or injury is lacking, there must be

strong corroboration of essential facts and circumstances

embraced in the defendant’s confession. Corroboration of

insignificant facts or those unrelated to the commission of

the crime will not suffice. We emphasize this point because

although we have relaxed our corroboration rule

somewhat, we remain advertent to the reason for its

existence, that is, to protect against convictions for crimes

that have not in fact occurred.

State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985) (emphasis added).

¶ 16 Here, the only evidence of a gun or defendant’s possession was his statement

that he had a gun before the officers arrived at the house. The house was not his

home or residence. No gun was found in the area where defendant claimed he had

dropped it. There was no evidence of any gunshots fired. There was no “proof of loss

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or injury[.]” Id. The magazine was found in Mr. Gradeless’s house, while the shell

casings, bullet fragments and holes were found at defendant’s residence, but there

was no evidence regarding when a gun was fired either from or into defendant’s

residence. This evidence does not provide “strong corroboration of essential facts and

circumstances embraced in the defendant’s confession.” Id. The magazine in

conjunction with the shell casings, bullet fragments and holes are “insignificant facts

or those unrelated to the commission of the crime[.]” Id.

¶ 17 It is important to note here, that without some evidence of a firearm beyond

defendant’s own statement, whether recovery of a firearm, evidence that someone

heard or saw gunfire, evidence that another person saw the alleged firearm, or injury

to a person or property, there is simply no evidence the alleged crime even took place,

and thus to convict defendant on such little evidence risks “conviction[] for [a] crime[]

that ha[s] not in fact occurred.” Id. We conclude the trial court erred in failing to

dismiss the charge of possession of a firearm by a felon. As such, we must vacate

defendant’s conviction for possession of a firearm by a felon.

3. Possession of Controlled Substances

¶ 18 As for defendant’s convictions for trafficking in heroin by possession and

possession with the intent to sell or deliver a controlled substance, defendant

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challenges only the element of possession. See generally N.C. Gen. Stat. § 90-95

(2015).1

The State must prove that Defendant possessed . . .

[a controlled substance] either actually or constructively.

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. Wirt, 263 N.C. App. 370, 373, 822 S.E.2d 668, 671 (2018) (citation and

quotation marks omitted). For purposes of constructive possession,

the State is not required to prove actual physical

possession of the controlled substance; proof of constructive

possession is sufficient and such possession need not be

exclusive. Constructive possession exists when a person,

while not having actual possession of the controlled

substance, has the intent and capability to maintain

control and dominion over a controlled substance. Where

a controlled substance is found on premises under the

defendant’s control, this fact alone may be sufficient to

overcome a motion to dismiss and to take the case to the

jury. If a defendant does not maintain control of the

premises, however, other incriminating circumstances

must be established for constructive possession to be

inferred.

State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993) (citations omitted).

North Carolina courts have issued an abundance of case law addressing the specific

1 North Carolina General Statute § 90-95 has since been amended. See N.C. Gen. Stat. § 90-

95 (2020).

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factual nuances of constructive possession as was noted by our Supreme Court in

State v. Miller, 363 N.C. 96, 99–100, 678 S.E.2d 592, 594–95 (2009):

Our cases addressing constructive possession have

tended to turn on the specific facts presented. See, e.g.,

Butler, 356 N.C. at 143–44, 147–48, 567 S.E.2d at 138–39,

141 (finding constructive possession when the defendant

acted suspiciously upon alighting from a bus; hurried to a

taxicab and yelled “let’s go” three times; fidgeted and

ducked down in the taxicab once in the back seat, then

exited the taxicab at the instruction of police officers and

walked back to the bus terminal without being told to do

so, drawing officers away from the taxicab; and drugs were

recovered from under the driver’s seat of the taxicab

approximately ten minutes later when the cab returned

from giving another customer a ride); Matias, 354 N.C. at

550–52, 556 S.E.2d at 270–71 (finding constructive

possession when officers, after smelling marijuana

emanating from a passing automobile occupied by the

defendant and three others, recovered marijuana and

cocaine stuffed between the seat pad and back pad where

the defendant had been seated, and an officer testified the

defendant was the only occupant who could have placed the

package there); State v. Brown, 310 N.C. 563, 569–70, 313

S.E.2d 585, 588–89 (1984) (finding sufficient other

incriminating circumstances when cocaine and other drug

packaging paraphernalia were found on a table beside

which the defendant was standing when the officers

entered the apartment, the defendant had been observed

at the apartment multiple times, possessed a key to the

apartment, and had over $1,700 in cash in his pockets);

State v. Baxter, 285 N.C. 735, 736–38, 208 S.E.2d 696, 697–

98 (1974) (finding constructive possession when the

defendant was absent from the apartment when police

arrived but a search of the bedroom that the defendant and

his wife occupied yielded men’s clothing and marijuana in

a dresser drawer, with additional marijuana found in the

pocket of a man’s coat in the bedroom closet); State v. Allen,

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279 N.C. 406, 408, 412, 183 S.E.2d 680, 682, 684–85 (1971)

(finding constructive possession when, even though the

defendant was absent from the apartment at the time of a

search, heroin was found in the bedroom and kitchen; the

defendant’s identification and other personal papers were

in the bedroom, public utilities for the premises were listed

in the defendant’s name; and a witness testified that the

defendant had provided heroin to him for resale).

Id. Miller went on to explain, “These and other cases demonstrate that two factors

frequently considered are the defendant’s proximity to the contraband and indicia of

the defendant’s control over the place where the contraband is found.” Id.

¶ 19 In this case, the controlled substances were not found in defendant’s actual

possession or in a domain exclusively controlled by him, and thus we must consider

“other incriminating circumstances[,]” Neal, 109 N.C. App. at 686, 428 S.E.2d at 289,

remaining mindful of “defendant’s proximity to the contraband and indicia of the

defendant’s control over the place where the contraband is found.” Miller, 363 N.C.

at 100, 678 S.E.2d at 595.

¶ 20 Here, the local sheriff’s department was called reporting a “suspicious

person[.]” Wynn I at *2. Law enforcement “noticed a screen pulled out of a window

of a home, and the window was open[.]” Id. “[I]nside the house [law enforcement]

saw defendant[;]” though the home was not his. Id. “Defendant was ‘very active in

the house’ and seen walking around much of the interior and heard slamming doors

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or drawers[;]” id., thus, defendant’s presence was not limited to one room or particular

spot; defendant moved throughout the house as if exercising dominion over the space.

“Defendant eventually came out of the house with $2,216.00 in cash and a white

substance on and in his nose.”

The law enforcement officers called the man who

owned the house, and he allowed them to search the house.

Inside they found a black plastic bag containing smaller

red plastic baggies of cocaine and heroin, digital scales, and

a pistol magazine. The homeowner said none of the items

belonged to him.

¶ 21 The cocaine and heroin found inside the house coupled with the white powder

on defendant’s nose tend to show the drugs belonged to defendant, particularly in

light of the fact that the controlled substances were packaged in red plastic baggies,

a method used by defendant for selling drugs. The State presented sufficient evidence

of possession of the controlled substances for both defendant’s trafficking in heroin

by possession and possession with the intent to sell or deliver a controlled substance

convictions. As such, the trial court did not err in denying defendant’s motion for

directed verdict on his controlled substance charges.

III. Evidence of Other Wrongs

¶ 22 In Wynn I, we considered another issue on appeal under Rules 403 and 404,

see Wynn I at *6-10, but we note the Supreme Court remanded this case for the

limited purpose of considering this case under Golder, see Wynn, 374 N.C. 427, 840

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S.E.2d 781, and we conclude Golder applies only as to defendant’s first argument on

appeal. As such, the Supreme Court left, and we shall too, leave intact our prior

analysis, regarding defendant’s second argument of evidence of other wrongs.

IV. Conclusion

¶ 23 As to defendant’s conviction for possession of a firearm by a felon, we vacate.

As there was evidence of constructive possession of the controlled substances, we

conclude there was no error as to defendant’s convictions and judgments for

trafficking in heroin by possession, possession with the intent to sell or deliver a

controlled substance, and attaining the status of habitual felon.

VACATED IN PART; NO ERROR IN PART.

Judges TYSON and ARROWOOD concur.