An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance with 

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-220

Filed: 6 October 2015

Rowan County, No. 13 CRS 2645, 54764

STATE OF NORTH CAROLINA,

v.

WAYNE ALLEN DAVIS, Defendant.

Appeal by defendant from judgment entered 23 April 2014 by Judge Mark E. 

Klass in Rowan County Superior Court. Heard in the Court of Appeals 26 August 

2015.

Attorney General Roy Cooper, by Assistant Attorney General Nancy Dunn 

Hardison, for the State. 

Cooley Law Office, by Craig M. Cooley, for defendant-appellant. 

ZACHARY, Judge.

Wayne Davis (defendant) appeals from convictions of possession of a firearm 

by a felon and having the status of an habitual felon. On appeal, defendant argues 

that the State presented insufficient evidence that he possessed a firearm and that 

the trial court erred by denying his motion for a continuance. We disagree. 

I. Factual and Procedural History
STATE V. DAVIS

Opinion of the Court

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On 26 August 2013 defendant was indicted for one count of possession of a 

firearm by a convicted felon and, in a separate indictment, for being an habitual felon. 

At the trial on these charges, which began on 22 April 2014, the State’s evidence 

tended to show the following: 

At around midnight on the night of 6 August 2013, Officer Jennifer Moreau of 

the Salisbury Police Department received a “shots fired” call in which a witness 

reported “that two black males were chasing another black male” and were firing 

shots at the person being chased. One of the shooters was described as wearing a 

white shirt and dark pants. Shortly thereafter, Officer Moreau saw defendant, an 

African-American man, walking down a nearby street and wearing dark pants and a 

white shirt. Officer Moreau approached defendant from behind and noticed that 

defendant looked over his shoulder in her direction and that as defendant walked 

along his left arm swung freely while his right hand was “pinned toward the front” so 

that Officer Moreau could not see what was in defendant’s hand. Officer Moreau 

slowed down as she passed defendant and shone her flashlight at him. As she “passed 

by him, [Officer Moreau] saw his right hand go around to his back and [he] pinned it 

there[.]” At trial, Officer Moreau demonstrated for the jury the hand movements that 

defendant made, which she described as “very odd.” She testified that: 

Officer Moreau: I slowed down even further, keeping my 

eyes on him, coming to a stop, when I saw him make a 

sideways motion, like bending sideways, and reach his 

hand out towards the wall. And that's when I just locked it 
STATE V. DAVIS

Opinion of the Court

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up in park, and jumped out of my vehicle, and went and 

stopped him. 

Prosecutor: Well, what -- in your training and experience, 

I mean, what did you believe those gestures meant to you?

Officer Moreau: He was hiding something in his hand. It 

could have been anything. But he was hiding something, 

obviously, that he didn't want a police officer to see. And 

then he deposited it behind the wall. 

Officer Moreau stopped her patrol car and, as she approached defendant, she 

saw a gun lying in the grass behind the wall, “right where [she saw defendant] dip 

sideways.” At that point Officer Moreau handcuffed defendant, called for backup 

assistance, and examined the area where she found the gun. She noted that although 

the grass was wet with dew, the gun was dry and appeared clean. The gun was loaded 

but had not been fired. Officer Moreau arrested defendant for possession of a firearm 

by a felon. Defendant told her that he did not have a gun and had been holding a cell 

phone, and that he had seen two men running between nearby houses. Officer Moreau 

noticed, however, that although her own footsteps made visible prints in the dewy 

grass between the houses, there were no footprints in the area indicated by 

defendant. The firearm was taken into evidence for testing, but no usable 

fingerprints were obtained from the gun. At the time of defendant’s arrest, swabs 

were taken from the gun in order to conduct DNA tests, but the testing had not been 

completed at the time of trial. 
STATE V. DAVIS

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The defendant’s evidence, as relevant to the issues raised on appeal, tended to 

show the following. Defendant testified that he was 47 years old and that on 6 August 

2013 he had visited his girlfriend, Ms. Fatima Gibson. Defendant left Ms. Gibson’s 

house shortly before midnight and walked toward a gas station to buy cigarettes. 

When defendant heard gunshots, he changed his route. Just before Officer Moreau 

stopped him, defendant saw two men running away between houses on the street. 

Defendant denied possessing a gun, leaning towards the wall, or dropping a gun. He 

did not recall the grass being wet with dew, testified that he had not worn his hair in 

the style to which Officer Moreau testified, and maintained that he had not told 

Officer Moreau that he was walking between his girlfriend’s house and home. Thus, 

defendant’s testimony directly contradicted that of Officer Moreau. 

Ms. Gibson testified that defendant had visited her the night of 6 August 2013

and that when he left between 11:00 and midnight to get cigarettes he did not have a 

gun. Elizabeth Patel, a forensic scientist with the North Carolina state crime 

laboratory, testified that she conducted testing on gunshot residue swabs taken from 

defendant and that the results were inconclusive.

On 23 April 2014 the jury returned a verdict finding defendant guilty of 

possession of a firearm by a convicted felon. Defendant entered a plea of guilty to 

having the status of an habitual felon, and was sentenced to a term of imprisonment 

of 88 to 118 months. Defendant gave notice of appeal in open court. 
STATE V. DAVIS

Opinion of the Court

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II. Sufficiency of the Evidence

Defendant argues first that the trial court erred by denying his motion to 

dismiss the charge of possession of a firearm by a felon, on the grounds that the State 

presented insufficient evidence that he constructively possessed a firearm. We have 

carefully reviewed the evidence and conclude that the trial court did not err by

denying defendant’s motion and submitting the charge to the jury. 

A. Standard of Review

The standard of review of a trial court’s ruling on a defendant’s motion to 

dismiss is well established:

When reviewing a defendant's motion to dismiss a charge 

on the basis of insufficiency of the evidence, this Court 

determines whether the State presented substantial 

evidence in support of each element of the charged offense. 

Substantial evidence is relevant evidence that a reasonable 

person might accept as adequate, or would consider 

necessary to support a particular conclusion. In this 

determination, all evidence is considered in the light most 

favorable to the State, and the State receives the benefit of 

every reasonable inference supported by that evidence. The 

defendant’s evidence, unless favorable to the State, is not 

to be taken into consideration, except when it is consistent 

with the State’s evidence, the defendant’s evidence may be 

used to explain or clarify that offered by the State. . . . [I]f 

there is substantial evidence - whether direct, 

circumstantial, or both - to support a finding that the 

offense charged has been committed and that the 

defendant committed it, the case is for the jury and the 

motion to dismiss should be denied.

State v. Abshire, 363 N.C. 322, 327-28, 677 S.E.2d 444, 449 (2009) (citations and 

quotation marks omitted). “Whether the evidence presented at trial is substantial 
STATE V. DAVIS

Opinion of the Court

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evidence is a question of law for the court.” State v. Miles, 222 N.C. App. 593, 599,

730 S.E.2d 816, 822 (2012) (citing State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 

649, 651 (1982)), aff’d, 366 N.C. 503, 750 S.E.2d 833 (2013). “Appellate review of a 

denial of a motion to dismiss for insufficient evidence is de novo.” State v. Boozer, 210 

N.C. App. 371, 374-75, 707 S.E.2d 756, 761 (2011) (citation omitted), disc. review 

denied, 365 N.C. 543, 720 S.E.2d 667 (2012). 

B. Discussion

N.C. Gen. Stat. § 14-415.1(a) provides, in relevant part, that “[i]t shall be 

unlawful for any person who has been convicted of a felony to purchase, own, possess, 

or have in his custody, care, or control any firearm[.]” Accordingly, in order to 

establish the crime of possession of a firearm by a felon, the State must show that the 

defendant was previously convicted of a felony and was thereafter in possession of a 

firearm. See State v. Best, 214 N.C. App. 39, 45, 713 S.E.2d 556, 561 (citing State v. 

Wood, 185 N.C. App. 227, 235, 647 S.E.2d 679, 686 (2007)), disc. rev. denied, 365 N.C. 

361, 718 S.E.2d 397 (2011). In the case at bar, defendant admits being a convicted 

felon and thus the only issue on appeal is whether defendant possessed a firearm. 

It is axiomatic that possession of an 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 
STATE V. DAVIS

Opinion of the Court

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v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted). This 

Court has noted that “[w]hen the defendant, ‘while not having actual possession, . . . 

has the intent and capability to maintain control and dominion over the [property],’

he has constructive possession of the item.” State v. Glasco, 160 N.C. App. 150, 156, 

585 S.E.2d 257, 262 (2003)) (quoting State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 

269, 270 (2001)) (citation omitted). 

It has long been held that in order to prove constructive possession of an item, 

“ ‘mere proximity . . . is usually insufficient, in the absence of other incriminating 

circumstances, to convict for possession.’ ” State v. Ferguson, 204 N.C. App. 451, 459-

60, 694 S.E.2d 470, 477 (2010) (quoting State v. Weems, 31 N.C. App. 569, 571, 230 

S.E.2d 193, 194 (1976)) (citations omitted). See, e.g., State v. Bailey, __ N.C. App. __, 

__, 757 S.E.2d 491, 494 (evidence insufficient to go to the jury where defendant linked 

to rifle solely by “his presence in the vehicle and his knowledge that the gun was in 

the backseat”), disc. review denied, 367 N.C. 789, 766 S.E.2d 678 (2014); and Alston, 

131 N.C. App. at 519, 508 S.E.2d at 319 (evidence insufficient to go to the jury where 

“both defendant and his wife [had] equal access to [the handgun]”). Such cases turn 

on the totality of the circumstances, and “often include evidence that the defendant 

had a specific or unique connection to the place where the [contraband was] found.” 

Ferguson, 204 N.C. App. at 460, 694 S.E.2d at 477 (citations omitted). In addition, in 

many constructive possession cases, there is evidence presented that “the defendant 
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Opinion of the Court

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behaved suspiciously, made incriminating statements . . . or failed to cooperate with 

law enforcement officers.” Id. (citations omitted). Moreover, there will frequently be 

other incriminating evidence in addition to the defendant’s connection to a place or 

his behavior. See, e.g., Ferguson, 204 N.C. App. at 461, 694 S.E.2d at 478; State v. 

McNeil, 359 N.C. 800, 801, 617 S.E.2d 271, 272 (2005); State v. Wiggins, 185 N.C. 

App. 376, 388, 648 S.E.2d 865, 873 (2011); and State v. Martinez, 150 N.C. App. 364, 

371, 562 S.E.2d 914, 918 (2002). 

In the case before the Court, defendant asserts that he had no “specific or 

unique connection” to the place where the gun was found. At trial, however, the State 

offered evidence that defendant behaved in a suspicious manner and presented other 

evidence tending to corroborate the defendant’s possession of the gun. 

The trial court did not instruct the jury on the distinction between actual and 

constructive possession, although it did inform the jurors that they could consider 

evidence that the gun was found in close proximity to defendant in their 

determination of whether defendant was aware of the gun and had the power or 

intent to control its use. Defendant neither objected to the trial court’s instructions 

at trial, nor raised it as an issue on appeal; consequently, we express no opinion on 

the significance, if any, of the trial court’s failure to instruct on the difference between

actual and constructive possession. Upon review of the evidence offered in this case, 

we hold that the State presented sufficient evidence to allow a reasonable juror to 
STATE V. DAVIS

Opinion of the Court

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find either that defendant was in actual or constructive possession of the gun 

retrieved by Officer Moreau. Specifically, the State offered evidence of the following: 

1. When Officer Moreau observed defendant, she was 

driving behind him and noticed that he kept his right hand 

pinned to his front so that she could not see what he was 

holding, and that he looked over his shoulder in her 

direction. As Officer Moreau drove past defendant, she 

shone her flashlight back in his direction, at which point 

defendant moved his right arm behind his back.

2. When Officer Moreau slowed her patrol car, she 

observed defendant bend to one side and reach out his arm. 

3. When Officer Moreau stopped her car and approached

defendant, she saw a gun lying in the grass at the spot 

where defendant had reached out his arm. 

4. The grass around the firearm was wet with dew, but the 

gun was dry and clean. 

5. Officer Moreau did not lose sight of defendant between 

the time she first noticed him and her discovery a few 

moments later of a gun in the same place where defendant 

had bent to the side and stretched out his arm. 

This evidence is more than adequate to allow a reasonable juror to find that 

defendant’s arm movements were intended to keep the contents of his right hand 

from Officer Moreau’s view. When it appeared that Officer Moreau was stopping her 

patrol car, defendant bent to the side and dropped what he was holding; Officer 

Moreau found a gun exactly where defendant had bent to the side and stretched his 

arm; and the condition of the gun was consistent with its having been placed there 

very recently. On this basis a reasonable juror could conclude either that defendant 
STATE V. DAVIS

Opinion of the Court

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had been in actual possession of a firearm which he dropped on the ground just before 

Officer Moreau retrieved it, or that defendant had retained constructive possession 

of the gun after discarding it. 

In urging us to reach a contrary result, defendant directs our attention to 

weaknesses in the State’s evidence. For example, defendant argues that defendant 

did not have “exclusive control” of the yard where the gun was found and that the 

State “did not present evidence [that] the firearm was not behind the wall before 

[defendant] walked [by.]” Weaknesses in the evidence go to its weight and, as

discussed above, our review is confined to a determination of whether the State 

presented substantial evidence to support the elements of the charged offense: 

A ‘substantial evidence’ inquiry examines the sufficiency of 

the evidence presented but not its weight. The reviewing 

court considers all evidence in the light most favorable to 

the State, and the State receives the benefit of every 

reasonable inference supported by that evidence. 

Evidentiary “contradictions and discrepancies are for the 

jury to resolve and do not warrant dismissal.” Finally, 

sufficiency review “is the same whether the evidence is 

circumstantial or direct, or both.” 

State v. Garcia, 358 N.C. 382, 412-13, 597 S.E.2d 724, 746 (2004) (citing State v. 

Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), and quoting State v. Gibson, 

342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995), and State v. Jones, 303 N.C. 500, 504, 

279 S.E.2d 835, 838 (1981)) (other citation omitted). 

Moreover, our review of the evidence suggests that the central issue for the 

jury’s determination was the relative credibility of defendant and Officer Moreau, and 
STATE V. DAVIS

Opinion of the Court

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that the points raised by defendant are relevant primarily insofar as they might 

impact a credibility analysis. It is undisputed that Officer Moreau retrieved a gun in 

a yard on the street where defendant was walking. Officer Moreau testified that, 

seconds before finding the gun, she saw defendant lean towards the spot where it was 

found and reach out his arm. On the other hand, defendant testified that he did not 

have a gun on 6 August 2013 and that he did not bend sideways and reach out his 

arm at the spot where Officer Moreau found a gun. If the jury believed defendant, it 

would acquit him of the charge. If the jury found Officer Moreau’s testimony to be 

credible it would likely convict defendant. As a result, the jury’s determination of the 

credibility of the witnesses was crucial to its decision, and it is axiomatic that the 

“ ‘question of whether a witness is telling the truth is a question of credibility and is 

a matter for the jury alone.’ ” State v. Chapman, 359 N.C. 328, 363, 611 S.E.2d 794, 

820-21 (2005) (quoting State v. Solomon, 340 N.C. 212, 221, 456 S.E.2d 778, 784 

(1995)). 

Defendant does not cite cases addressing a similar factual setting in which an 

appellate court held that there was insufficient evidence of possession, and we note 

that our holding is supported by other cases. In State v. Dawkins, 196 N.C. App. 719, 

725, 675 S.E.2d 402, 406 (2009), in which the defendant challenged his conviction for 

possession of a firearm by a felon, we held that the evidence was sufficient:

Deputy Scott testified that as defendant exited the vehicle, 

he saw an object fall from defendant’s person. A loaded, 
STATE V. DAVIS

Opinion of the Court

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five-shot .357 revolver was recovered at the place where 

Deputy Scott saw the object fall. From this evidence, the 

jury could infer that defendant had the .357 in his 

possession just prior to exiting the vehicle. 

Accordingly, we conclude that this argument lacks merit. 

III. Denial of Defendant’s Motion for a Continuance

Defendant also argues that the trial court erred by denying his motion for a 

continuance, made at the start of trial. Defendant contends that the trial court’s 

denial of his continuance motion violated his right under the North Carolina and 

United States Constitutions to present a complete defense. Defendant has not 

preserved the constitutional issue for appellate review or demonstrated a right to 

relief on a non-constitutional basis. 

At trial defendant made an oral motion for a continuance. Defense counsel 

informed the court that the night before he “became aware that there were DNA 

swabs taken from [defendant]” and asked the court to delay defendant’s trial until 

the results could be obtained. Defendant did not mention the North Carolina or 

United States Constitutions, or make any argument regarding his constitutional 

rights. 

“In order to preserve an issue for appellate review, a party 

must have presented to the trial court a timely request, 

objection, or motion, stating the specific grounds for the 

ruling the party desired the court to make if the specific 

grounds were not apparent from the context.” 

Constitutional issues, which are not raised and ruled upon 

at trial, will not be considered for the first time on appeal. 

. . . Nowhere in his motion to continue did defendant 
STATE V. DAVIS

Opinion of the Court

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contend that his constitutional rights were violated or 

implicated. Pursuant to our Rules of Appellate Procedure, 

defendant has not preserved the issue of whether the 

denial of his motion to continue violated his constitutional 

rights.

State v. Ellis, 205 N.C. App. 650, 654, 696 S.E.2d 536, 539 (2010) (quoting N.C.R. 

App. P. 10(a)(1)) (other citation omitted). 

On appeal, defendant contends that “if the denial [of a defendant’s motion for 

continuance] impairs a defendant’s constitutional rights, the motion presents a legal 

question fully reviewable under de novo review[,]” citing State v. Taylor, 354 N.C. 28, 

550 S.E.2d 141 (2001), for this proposition. However, Taylor does not hold that the 

denial of a continuance motion is “fully reviewable” whenever a defendant argues 

that the denial “impaired” his constitutional rights, but instead states that: 

Ordinarily, a motion to continue is addressed to the 

discretion of the trial court, and absent a gross abuse of 

that discretion, the trial court's ruling is not subject to 

review. When a motion to continue raises a constitutional 

issue, the trial court's ruling is fully reviewable upon 

appeal. Even if the motion raises a constitutional issue, a 

denial of a motion to continue is grounds for a new trial 

only when defendant shows both that the denial was 

erroneous and that he suffered prejudice as a result of the 

error. 

Taylor, 354 N.C. at 33-34, 550 S.E.2d at 146 (2001) (emphasis added) (citing State v. 

Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982)) (other citation omitted). Thus, 

Taylor does not represent an exception to the long-established rule that “failure to 

raise a constitutional issue at trial generally waives that issue for appeal[.]” State v. 
STATE V. DAVIS

Opinion of the Court

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Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009) (citing State v. Ashe, 314 N.C. 

28, 39, 331 S.E.2d 652, 659 (1985)). In his appellate brief, defendant does not 

acknowledge his failure to preserve this issue for our review or present any argument 

regarding his failure to raise the constitutional issue before the trial court. We 

conclude that defendant is not entitled to appellate review of whether the trial court’s 

denial of his motion for a continuance violated his constitutional rights. 

Nor has defendant shown any grounds for relief on the basis of nonconstitutional error. As discussed above, “[i]n most circumstances, a motion to 

continue is addressed to the sound discretion of the trial court, and absent a manifest 

abuse of that discretion, the trial court’s ruling is not reviewable.” State v. Rogers, 

352 N.C. 119, 124, 529 S.E.2d 671, 674-75 (2000). Defendant does not argue that the 

trial court abused its discretion. In addition, “generally, the denial of a motion to 

continue, whether a constitutional issue is raised or not, is sufficient grounds for the 

granting of a new trial only when the defendant is able to show that the denial was 

erroneous and that he suffered prejudice as a result of the error.” Id. In this case, 

defendant has failed to establish either error or prejudice. 

We first observe that his continuance motion was not timely. N.C. Gen. Stat. 

§ 15A-952(b) provides that a motion to continue “must be made within the time 

limitations stated in subsection (c) unless the court permits filing at a later time[.]” 

N.C. Gen. Stat. § 15A-952(c) in turn mandates that: 
STATE V. DAVIS

Opinion of the Court

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(c) Unless otherwise provided, the motions listed in 

subsection (b) must be made at or before the time of 

arraignment if a written request is filed for arraignment 

and if arraignment is held prior to the session of court for 

which the trial is calendared. If arraignment is to be held 

at the session for which trial is calendared, the motions 

must be filed on or before five o'clock P.M. on the 

Wednesday prior to the session when trial of the case 

begins.

If a written request for arraignment is not filed, then any 

motion listed in subsection (b) of this section must be filed 

not later than 21 days from the date of the return of the bill 

of indictment as a true bill.

Defendant’s motion, made at the start of trial, was not timely under any of the 

factual circumstances set out in N.C. Gen. Stat. § 15A- 952(c). “By waiting until the 

session for which his trial was calendared and then making an oral motion to 

continue, defendant failed to comply with these statutes. Defendant’s failure to make 

a timely motion was in itself sufficient basis for its denial.” State v. Evans, 40 N.C. 

App. 390, 391, 253 S.E.2d 35, 36 (1979). In addition, defendant did not contradict the 

prosecutor’s assertion that waiting for the results of DNA testing would likely delay 

the trial by at least a year and defendant did not indicate that he had contacted the 

lab for information on the timeline for testing. 

Regarding the existence of prejudice, under N.C. Gen. Stat. § 15A-1443(a):

A defendant is prejudiced by errors relating to rights 

arising other than under the Constitution of the United 

States when there is a reasonable possibility that, had the 

error in question not been committed, a different result 

would have been reached at the trial out of which the 
STATE V. DAVIS

Opinion of the Court

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appeal arises. The burden of showing such prejudice under 

this subsection is upon the defendant. . . . 

Defendant has argued that the results of DNA tests would have been relevant, 

admissible, and potentially helpful to his defense. Defendant, however, has not 

presented any argument that there is a “reasonable possibility” that the result of his 

trial would have been different if the results had been available. This argument lacks 

merit. 

We hold that defendant had a fair trial, free of reversible error. 

NO ERROR. 

Judges STEPHENS and McCULLOUGH _________.

Report per Rule 30(e).