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Criminal Practice – Jury Instructions – Actual & Constructive Possession – Search & Seizure – Warrant Affidavit

State v. Robinson (Lawyers Weekly No. 011-277-17, 24 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County Superior Court (R. Gregory Horne, J.) N.C. App.

Holding: Even though there was no evidence that defendant actually possessed either the firearms or the narcotics seized from his house, the trial court did not plainly err when it instructed the jury on both actual and constructive possession. The question for the jury was whether or not to believe defendant’s evidence that (1) his sister-in-law had planted the drugs in retaliation for defendant’s altercation with her son and that (2) defendant’s brother-in-law was storing weapons in defendant’s house. We conclude without difficulty that the distinction between actual and constructive possession did not play a significant role in the jury’s decision.

The trial court did not err by denying defendant’s suppression motion and did not plainly err in its instructions to the jury.

At the trial court level, defense counsel’s challenge to the affidavit in support of the search warrant was based on the affidavit’s supposedly insufficient detail. Defendant did not preserve for appeal an argument that the affiant had made knowingly false statements about a controlled drug purchase that occurred three days before the filing of the affidavit.


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