Criminal Practice – Requested Replay of Evidence – Actual and Constructive Possession – Motion to Dismiss

The trial court correctly denied defendant’s motion to dismiss, and defendant has not established that the court plainly erred in omitting instructions on attempt or abused its discretion by allowing the jury to replay recordings of defendant.

The trial court did not err in any respect.

Defendant was indicted for possession of a firearm by felon, possession of methamphetamine, and attaining habitual felon status. Defendant stood trial, during which the State presented testimony from a lieutenant of the Rutherfordton Police Department that he was present at the time of defendant’s arrest and was informed that defendant had made a phone call from jail indicating he had left items behind at the location where he was arrested.

A forensic chemist with the State Crime Lab testified that the plastic bag obtained from the sleeve of defendant’s jacket was found to contain methamphetamine. Defendant moved to dismiss all charges at the close of the State’s evidence, and the trial court denied the motion. At the close of all evidence, defendant renewed his motion to dismiss, which the court again denied. Defendant did not request, nor did the court provide, instruction to the jury on any offenses beyond those with which defendant was charged. During deliberations, the jury asked to rehear one of the recordings of defendant’s phone calls from jail, which the trial court allowed over defendant’s objection. Defendant was convicted on all charges.

On appeal, defendant argued the court erred in denying his motion to dismiss with respect to the two possession charges, plainly erred in failing to instruct the jury on theories of attempt with respect to both possession charges and abused its discretion in permitting the jury to hear the recordings of defendant in jail a second time.

Defendant argued that evidence of his possession of both a firearm and methamphetamine were insufficient. However, evidence that he possessed both was present on the record. Further, the location of the items at the point where defendant was arrested, defendant’s cognizance of them, and his specific attempts to conceal them by removing them from the site of his arrest was sufficient evidence from which a jury could have concluded defendant actually possessed the items prior to his arrest. The court did not err in denying defendant’s motion to dismiss.

Defendant next contended the court plainly erred in failing to instruct the jury on theories of attempt with respect to both possession charges. There was no evidence tending to show an attempted possession, and the court did not plainly err in omitting such an instruction.

Finally, defendant argued the court improperly allowed the jury to review one of the recordings of defendant’s calls during deliberations. The jury was appropriately instructed that it should consider all the evidence during the jury charge, and the trial court scrupulously observed the requirements of N.C.G.S. § 15A-1233(a) during the replay.

No error.

State v. Nelson Emuel Montgomery Jr. (Lawyers’ Weekly No. 011-100-24, 11 pp.) (Hunter Murphy, J.) Appealed from Rutherford County Superior Court (J. Thomas Davis, J.) Attorney General Joshua H. Stein, by Assistant Attorney General Miranda Shanice Holley, for the State; Stanley F. Hammer for defendant-appellant. North Carolina Court of Appeals