Criminal Practice – Weapon Possession – Actual or Constructive — Jury Instructions – Plain Error

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State v. Perry (Lawyers Weekly No. 12-07-0951, 13 pp.) (Donna S. Stroud, J.) Appealed from Wake County Superior Court (Paul G. Gessner, J.) N.C. App.

Holding: Where (1) the evidence only supported a theory that defendant actually possessed a pistol, (2) the state told the jury that this case only involved constructive possession, and (3) the trial court charged the jury on both actual and constructive possession, the trial court’s failure to answer the jury’s subsequent questions about possession resulted in plain error.

Defendant is entitled to a new trial.

On June 26, 2009, police found a pistol in defendant’s parents’ apartment. Although there were several people in the apartment at the time, defendant was sitting in a car outside the apartment.

Defendant said a person named “Ra-Ra” had brought the gun to the apartment. Defendant admitted to having “touched” and “played with” the gun a few days earlier. He was charged with possession of a firearm by a felon.

Although the state presented evidence that defendant had actually possessed the firearm a few days earlier, the prosecutor told the jury that the case involved only constructive possession. Nevertheless, the trial court instructed the jury on both actual and constructive possession, with no objection from either party.

The jury sent the trial court questions about whether playing with a gun constituted power and intent to control disposition of it. The court declined to re-instruct the jury.

The jury found defendant guilty of possession of a firearm by a felon.

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’s arguments are neither evidence nor jury instructions, they still likely affected the jury’s 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’s failure to further inquire into and answer the jury’s questions specifically regarding possession had a probable impact on the jury’s finding of guilt that constituted plain error. 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.

New trial.