NO. COA13-1326

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Person County

No. 11 CRS 52522

SHAWN RONDEL BAILEY

Appeal by defendant from judgment entered 17 September 2013 

by Judge Henry W. Hight, Jr. in Person County Superior Court. 

Heard in the Court of Appeals 18 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General E. Burke Haywood, for the State.

Winifred H. Dillon for defendant.

HUNTER, Robert C., Judge.

Defendant Shawn Bailey appeals the judgment entered after a 

jury convicted him of possession of a firearm by a convicted 

felon. On appeal, defendant argues that the trial court erred 

in denying his motion to dismiss for insufficiency of the 

evidence. 

After careful review, because the State failed to produce 

circumstantial evidence that defendant constructively possessed 

the firearm, we reverse the order denying his motion to dismiss.
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Background

On 25 November 2011, Deputy Dustin Harris (“Deputy Harris”) 

and Deputy Adam Norris (“Deputy Norris”) of the Person County 

Sheriff’s office were standing outside the law enforcement 

center in Roxboro when they heard multiple, rapidly-fired 

gunshots coming from the Harris Gardens Apartments (“the 

apartments”). Deputies Harris and Norris responded to the scene 

of the gunshots. As Deputy Harris entered the apartment 

complex, he saw a dark-colored, four-door sedan leaving. A 

female was driving the car, and defendant was in the passenger 

seat. The driver was later identified as Sherika Torrain (“Ms. 

Torrain”), defendant’s girlfriend. The car was registered to 

defendant. Deputy Harris turned his car around, followed the 

sedan briefly, and then stopped it. Deputy Harris asked if 

there were any weapons in the car; according to Deputy Harris, 

defendant replied “yes” and told him that there was a gun on the 

floor in the back. Deputy Norris saw the weapon, which was 

later identified as an AK-47 assault rifle (“the rifle”). The 

rifle was warm and had been recently fired, with the magazine 

still in the gun. Later, investigators determined that the 

rifle was registered to Ms. Torrain. 
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Corporal Pam Ferstenau (“Corp. Ferstenau”) of the Roxboro 

Police Department also responded to the scene. When she 

arrived, she saw Deputy Harris and Deputy Norris with the sedan. 

Corp. Ferstenau took custody of the rifle and an empty magazine 

found on the center console of the car. Sergeant Will Dunkley 

(“Sgt. Dunkley”), a patrol supervisor with the Roxboro Police 

Department, also responded to the scene. Sgt. Dunkley, along 

with another officer, searched the road near the apartments for 

evidence and found a spent shell case. Sgt. Dunkley testified 

that the casing is known as an “SKS round or AK round” which 

could be used in either an SKS or AK weapon. 

During an interview at the Roxboro Police Department, 

defendant told police that he and his girlfriend were at the 

apartment complex when they heard shots. Defendant claimed that 

they left after the shots, but he denied possessing or firing 

the rifle. A gunshot residue test taken of defendant’s hands 

was inconclusive. 

Defendant testified in his own defense at trial. He 

claimed that he had spent the day at the apartment complex. 

After the shooting, he called Ms. Torrain to pick him up. She 

arrived, and defendant got in the passenger seat. Because he 

helped her buy the car, defendant admitted it was titled in his 
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name; however, he contended that she was the one who used and 

controlled the vehicle. 

According to defendant, after Deputy Harris stopped the car 

and asked if there were any weapons in it, Ms. Torrain said 

“yes.” Defendant denied knowing there was a gun in the car and 

denied telling Deputy Harris where it was located. 

Defendant was indicted for possession of a firearm by a 

felon (“possession of a firearm”), going armed to the terror of 

the people, and discharging a firearm within city limits. 

Defendant’s trial began 16 September 2013. The jury convicted 

defendant of possession of a firearm and acquitted him on the 

other charges. The trial court sentenced defendant to a minimum 

term of twelve months to a maximum term of fifteen months 

imprisonment. Defendant timely appealed.

Argument

Defendant’s sole argument on appeal is that the trial court 

erred in denying his motion to dismiss the possession of a 

firearm charge for insufficiency of the evidence. Specifically, 

defendant contends that the State failed to present sufficient 

incriminating evidence that defendant constructively possessed 

the firearm. We agree.
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“This Court reviews the trial court’s denial of a motion to 

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 

S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal, 

the question for the Court is whether there is substantial 

evidence (1) of each essential element of the offense charged, 

or of a lesser offense included therein, and (2) of defendant’s 

being the perpetrator of such offense. If so, the motion is 

properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 

(2000) (internal quotation marks omitted). “In making its 

determination, the trial court must consider all evidence 

admitted, whether competent or incompetent, in the light most 

favorable to the State, giving the State the benefit of every 

reasonable inference and resolving any contradictions in its 

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 

(1994), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). 

Here, defendant was charged with possession of a firearm by 

a felon in violation of N.C. Gen. Stat. § 14-415.1. Pursuant to 

section 14-415.1(a) (2013), it is “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[.]” Defendant 

does not challenge his status as a convicted felon; therefore, 
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the only element of the offense we must consider on appeal is 

possession. 

With regard to possession, our Supreme Court has noted 

that: 

In a prosecution for possession of 

contraband materials, the prosecution is not 

required to prove actual physical possession 

of the materials. Proof of nonexclusive, 

constructive possession is sufficient. 

Constructive possession exists when the 

defendant, while not having actual 

possession, has the intent and capability to 

maintain control and dominion over the 

narcotics. Where such materials are found 

on the premises under the control of an 

accused, this fact, in and of itself, gives 

rise to an inference of knowledge and 

possession which may be sufficient to carry 

the case to the jury on a charge of unlawful 

possession. However, unless the person has 

exclusive possession of the place where the 

narcotics are found, the State must show 

other incriminating circumstances before 

constructive possession may be inferred. 

State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 

(2001) (internal citations and quotation marks omitted). 

Whether constructive possession exists is based on the totality 

of the circumstances. State v. Butler, 147 N.C. App. 1, 11, 556 

S.E.2d 304, 311 (2001).

In this case, it is undisputed that defendant did not

actually possess the rifle nor was he the only occupant in the 

car where it was found. Therefore, he did not have “exclusive 
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possession” of the car, Matias, 354 N.C. at 552, 656 S.E.2d at 

270, and the mere fact that defendant was in the car where the 

firearm was found does not, by itself, establish constructive 

possession, State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 

193, 194 (1976). Accordingly, the State was required to show 

“other incriminating circumstances” linking defendant to the 

rifle. Matias, 354 N.C. at 552, 556 S.E.2d at 271.

A review of decisions by this Court establishes that when 

evidence presented definitively links a defendant to a weapon, 

we have found that the circumstantial evidence of constructive 

possession was sufficient to withstand a defendant’s motion to 

dismiss. For example, in State v. Glasco, 160 N.C. App. 150, 

157, 585 S.E.2d 257, 262, this Court held that the trial court’s 

denial of the defendant’s motion to dismiss was proper where the 

evidence “tended to show” that the defendant had “discharged a 

gun.” Specifically, the evidence showed that: (1) the defendant 

was seen jumping over a fence of a yard near the shooting; (2) 

the gun was recovered in that same yard; (3) the defendant was 

found carrying a bag with gunshot residue on it; and (4) the 

garbage bag had holes in it consistent with a firearm being 

fired inside the bag. Id. 
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Similarly, in State v. Mitchell, __ N.C. App. __, __, 735 

S.E.2d 438, 440 (2012), appeal dismissed, __ N.C. __, 740 S.E.2d 

466 (2013), police stopped the defendant, who was driving a 

rental car, for speeding. The defendant’s girlfriend, Ms. 

Harris, was a passenger in the car. Id. The defendant 

“indicated” that there was a gun in the glove compartment. Id. 

Police found the gun inside Ms. Harris’s purse which was being 

kept in the glove compartment. Id. Although the defendant 

denied telling the police about the gun, this Court found that

the circumstances were sufficient to establish the defendant's 

constructive possession of the gun because the defendant was 

driving the vehicle—thus, he “controlled” it—and he was “aware” 

of the gun’s presence in the glove compartment. Id. at ___, 735 

S.E.2d at 443.

In contrast, however, this Court has found the evidence 

insufficient to go to the jury when there is no link between the 

defendant and the firearm besides mere presence. For example, 

in State v. Alston, 131 N.C. App. 514, 515, 508 S.E.2d 315, 316

(1998), the defendant was a passenger in a car driven by his 

wife. A handgun was found on the console of the automobile, 

with the defendant and his wife having equal access to it. Id. 

The handgun was registered to his wife, and the car was 
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registered to the defendant’s brother. Id. at 516, 508 S.E.2d 

at 317. Although a child in the car told police that “Daddy’s 

got a gun[,]” this evidence was not admitted for the truth of 

the matter asserted, so the trial court could not consider it as 

substantive proof of possession. Id. Because the evidence 

showed no more than mere presence, this Court held that there 

was insufficient evidence to support an inference of possession. 

Id. at 519, 508 S.E.2d at 319.

We find the facts of this case closer to those of Alston

than Glasco or Mitchell. Like Alston, the rifle was registered 

to Ms. Torrain, defendant’s girlfriend, who was driving the car 

when the rifle was found. Defendant was a passenger in the 

vehicle, not the driver. Moreover, the rifle was found in a 

place where Ms. Torrain and defendant had equal access. In 

addition, unlike Glasco, there was no physical evidence tying 

defendant to the rifle. Specifically, defendant’s fingerprints 

were not found on the rifle, the magazine on the console, or the 

spent casing on the road which may have come from an AK firearm. 

Although the gun was warm and appeared to have been recently 

fired, there was no evidence that defendant had actually 

discharged the rifle because the gunshot residue test was 

inconclusive. Although it is undisputed that the sedan was 
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registered to defendant, he was not driving it at the time. 

Therefore, despite having legal ownership of the vehicle, 

defendant exercised no control over the car at the time the 

rifle was found. 

Finally, although defendant allegedly admitted he knew that 

the rifle was in the car to Deputy Harris, awareness of the 

weapon is not enough to establish constructive possession. In 

Mitchell, __ N.C. App. __, 735 S.E.2d at 443-43, awareness was 

one of the factors the Court noted; however, its conclusion that 

there was sufficient incriminating evidence to submit the issue 

to the jury was predicated on both the defendant’s awareness of 

the gun and the fact that he was driving the vehicle, noting 

that because “[a] driver generally has power to control the 

vehicle he is driving[,]” the defendant had the “power to 

control” the vehicle. Unlike Mitchell, defendant was not 

driving and, thus, not “controlling” the vehicle where the rifle 

was found. Therefore, defendant’s knowledge or awareness of the 

rifle in and of itself did not constitute sufficient 

incriminating evidence to submit the issue to the jury. 

While the State argues that the fact that the rifle was 

registered to defendant’s girlfriend constitutes substantial 

evidence of constructive possession, the Alston Court 
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specifically rejected a similar argument, noting “we are not 

persuaded that the purchase and ownership of the handgun by 

[the] [d]efendant’s wife is sufficient other incriminating 

evidence linking [the] [d]efendant to the handgun.” Alston, 131 

at 519, 508 S.E.2d at 319.

In summary, the only evidence linking defendant to the 

rifle was his presence in the vehicle and his knowledge that the 

gun was in the backseat. Consequently, the State failed to 

present sufficient “other incriminating circumstances,” Matias, 

354 N.C. at 552, 556 S.E.2d at 271, from which the jury could 

infer constructive possession. Accordingly, we reverse the 

trial court’s order denying his motion to dismiss for 

insufficiency of the evidence.

Conclusion

Because the State failed to present substantial evidence of 

constructive possession, we reverse the trial court’s order 

denying defendant’s motion to dismiss the charge of possession 

of a firearm by a felon.

REVERSED.

Judges BRYANT and STEELMAN concur.