State v. Battle , 253 N.C. App. 141 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1002
Filed: 18 April 2017
Edgecombe County, No. 15 CRS 50277
STATE OF NORTH CAROLINA
v.
KENRICK J. BATTLE
Appeal by defendant from judgment entered 10 February 2016 by Judge
Wayland J. Sermons, Jr. in Edgecombe County Superior Court. Heard in the Court
of Appeals 22 March 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
William D. Spence for defendant-appellant.
TYSON, Judge.
Kenrick J. Battle (“Defendant”) appeals from judgment entered upon a jury’s
conviction of felonious possession of a firearm by a felon. We reverse the trial
court’s denial of Defendant’s motion to dismiss.
I. Background
On 3 February 2015, Edgecombe County Sheriff’s deputies arrived at a
residence in a rural part of the county in an attempt to locate Defendant. They
determined Defendant was not present inside the residence and left. The deputies
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Opinion of the Court
received a “tip” approximately fifteen minutes later, which caused them to establish
a perimeter around a large section of woods adjacent to the residence.
Deputy Kenneth Wooten deployed a canine, a Dutch Shepherd, “Max,” to
track human scent in the wooded area. Deputy Wooten testified Max is trained “to
track human beings that have fled from an area” and “indicate where someone is
hiding” by tracking a combination of human scent, crushed vegetation, and
sedimentation. Deputy Wooten further testified Max is trained to “ensure [he] is
not going to veer off of one track onto another,” and to remain on the original track
in the event he detects the scent of another human being.
Deputy Wooten took Max along a wood line and was accompanied by
Detective Greg Weeks. Max detected a human scent on a footpath, which led into
the woods. Max led the deputies and proceeded along the footpath, which ended
approximately fifteen to twenty yards from the beginning of the wood line. Max
continued to track into the woods, and led the deputies across a ditch and into a
dense thicket. While in the vegetation, Max raised his head and began sniffing the
air. This behavior, Deputy Wooten referred to as “air scenting,” indicated they were
“close to someone or something.” The deputies saw an “assault rifle” in front of
Max, which they retrieved and determined it was loaded.
Max began tracking away from the area from where the rifle was found. He
led the deputies through the woods, parallel to Highway 122. The deputies
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continued to follow Max parallel to the highway, until they came upon a ditch at the
edge of a field. A footprint was visible on the other side of the ditch. Max led the
deputies across the ditch, but lost the track. Another man, Anthony Lyons,
emerged from the woods at another location, while Max and the deputies were near
the ditch. Another deputy arrested Lyons at the perimeter of the woods.
The deputies and Max emerged from the woods after Max lost the track.
They gave the recovered rifle to their supervisor, and allowed Max to rest for
approximately five minutes. The deputies and Max returned to the ditch, where
Max had lost the track. According to Deputy Wooten, Max “immediately picked the
track back up,” and led the officers toward the highway. Max led the officers into
an area of extremely thick briars and began “air scenting.” Defendant was
discovered lying upon the ground. Deputy Wooten testified the distance between
where the rifle was recovered and Defendant was found was between seventy-five
and one hundred yards.
No evidence was presented regarding the ownership of the rifle. DNA swabs
that were taken from the rifle and compared to Defendant’s DNA were inconclusive.
The State did not present any fingerprint or additional evidence to connect
Defendant to the rifle.
The State presented evidence tending to show Defendant was previously
convicted of a felony offense, taking indecent liberties with a child, in 2009. The
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jury convicted Defendant of possession of a firearm by a felon. The trial court
sentenced Defendant to an active prison term of nineteen to thirty-two months.
Defendant appeals.
II. Jurisdiction
Jurisdiction lies in this Court from final judgment of the superior court
entered upon the jury’s verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-
1444(a) (2015).
III. Sufficiency of the Evidence
In his sole argument on appeal, Defendant argues the trial court erred by
denying his motion to dismiss the charge of possession of a firearm by a felon.
Defendant asserts the State presented insufficient evidence to show he possessed
the rifle found in the woods. We agree.
A. Standard of Review
“We review the trial court’s denial of Defendant’s motion to suppress de
novo.” State v. Sanders, 208 N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010). Under
a de novo standard of review, this Court “considers the matter anew and freely
substitutes its own judgment for that of the trial court.” Id.
In ruling on a motion to dismiss for insufficiency of the evidence,
the trial court must consider the evidence in the light
most favorable to the State, drawing all reasonable
inferences in the State’s favor. All evidence, competent or
incompetent, must be considered. Any contradictions or
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conflicts in the evidence are resolved in favor of the State,
and evidence unfavorable to the State is not considered.
In its analysis, the trial court must determine whether
there is substantial evidence (1) of each essential element
of the offense charged and (2) that defendant is the
perpetrator of the offense. Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. When the evidence
raises no more than a suspicion of guilt, a motion to
dismiss should be granted. However, so long as the
evidence supports a reasonable inference of the
defendant’s guilt, a motion to dismiss is properly denied
even though the evidence also permits a reasonable
inference of the defendant’s innocence. The test for
sufficiency of the evidence is the same whether the
evidence is direct, circumstantial or both.
State v. Bradshaw, 366 N.C. 90, 92-93, 728 S.E.2d 345, 347 (2012) (internal citation
and quotation marks omitted).
B. Possession of the Firearm
To convict Defendant of felonious possession of a firearm by a felon, the State
must prove: (1) Defendant was previously convicted of a felony; and (2) Defendant
thereafter possessed a firearm. N.C. Gen. Stat. § 14-415.1 (2015); State v. Best, 214
N.C. App. 39, 45, 713 S.E.2d 556, 561, disc. review denied, 365 N.C. 361, 718 S.E.2d
397 (2011). Defendant does not challenge his status as a convicted felon. He argues
the State failed to present sufficient evidence he possessed the firearm the deputies
discovered in the woods.
Possession of a firearm may be actual or constructive. State v. Billinger, 213
N.C. App. 249, 253, 714 S.E.2d 201, 205 (2011). Our Court has explained:
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A person has actual possession of a firearm if it is on his
person, he is aware of its presence, and either by himself
or together with others he has the power and intent to
control its disposition or use. In contrast, a person has
constructive possession of a firearm when, although not
having actual possession, the person has the intent and
capability to maintain control and dominion over the
firearm.
Id. at 253-54, 714 S.E.2d at 205.
“‘It is sometimes difficult to distinguish between evidence sufficient to carry a
case to the jury, and a mere scintilla, which only raises a suspicion or possibility of
the fact in issue.’” State v. Brooks, 136 N.C. App. 124, 129, 523 S.E.2d 704, 708
(1999) (quoting State v. Johnson, 199 N.C. 429, 154 S.E. 730 (1930)), disc. review
denied, 351 N.C. 475, 543 S.E.2d 496 (2000). If the evidence “is sufficient only to
raise a suspicion or conjecture as to either the commission of the offense or the
identity of the defendant as the perpetrator of it, the motion for nonsuit should be
allowed. This is true even though the suspicion so aroused by the evidence is
strong.” In re Vinson, 298 N.C. 640, 656-57, 260 S.E.2d 591, 602 (1979) (citations
omitted). Here, the testimonies of Deputy Wooten and Detective Weeks regarding
Max’s tracking behavior may raise a “strong suspicion” that Defendant possessed
the rifle, constructively or otherwise, “but [is] not sufficient to remove that issue
from the realm of suspicion and conjecture.” State v. Malloy, 309 N.C. 176, 179, 305
S.E.2d 718, 720 (1983).
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Our Court has declined to uphold convictions based upon constructive
possession in cases where the defendant is not the sole occupant of the area where
the firearm is found, and no other incriminating evidence links the defendant to the
weapon. For example, Defendant cites State v. Bailey to support his argument the
State failed to present sufficient evidence to show he constructively possessed the
rifle. 233 N.C. App. 688, 757 S.E.2d 491, disc. review denied, 367 N.C. 789, 766
S.E.2d 678 (2014). In Bailey, officers responded to a report of gunshots at an
apartment complex, and saw a vehicle drive away. Id. at 689, 757 S.E.2d at 492.
Officers stopped the vehicle, which was owned and driven by the defendant’s
girlfriend. Id. The defendant was seated in the passenger’s seat and told the
officers that a firearm was located on the rear floorboard. Id. The firearm was
warm, had recently been fired, and was registered to the defendant’s girlfriend. Id.
A gunshot residue test taken of the defendant’s hands was inconclusive. Id. at 689-
90, 757 S.E.2d at 492. This Court held “the only evidence linking [the] defendant to
the rifle was his presence in the vehicle and his knowledge that the gun was in the
backseat[,]” and was insufficient to allow the jury to infer constructive possession.
Id. at 693, 757 S.E.2d at 494.
We acknowledge the officers’ testimonies that Max tracked an unknown
human scent from the wood line to the area where the rifle was recovered, and that
Max is trained not to veer off one human scent and onto another. However the rifle
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was not found in Defendant’s physical possession or in the immediate area under
his “capability to maintain control and dominion over the firearm.” Billinger, 213
N.C. App at 254, 714 S.E.2d at 205. Another man was also present in the same
woods as Defendant, while the officers searched for Defendant. Furthermore, Max
lost the original track at the ditch, took a break to rest outside of the woods, and
then resumed tracking.
This Court has upheld a defendant’s conviction, where the defendant was
identified as the perpetrator by a tracking canine. State v. Green, 76 N.C. App. 642,
334 S.E.2d 263, disc. review denied, 315 N.C. 187, 340 S.E.2d 751 (1985). In Green,
the officers utilized two canines to investigate a breaking and entering and larceny
from a store. Id. at 643, 334 S.E.2d at 264-65. The canines were offered a “scent
source” at the crime scene, which consisted of gloves and shoes taken from the
defendant and the codefendant. Id. at 643, 334 S.E.2d at 265. One of the dogs, a
Doberman pinscher, tracked the scent to a location where two stolen microwave
ovens had been abandoned. Id. The Doberman was taken off the trail to protect the
dog from the cold rain. Id. The other dog, a Rottweiler, “then traced the scent along
the same path . . . to where the defendant and the codefendant were apprehended.”
Id.
The defendant in Green argued the trial court erred by admitting the dog
tracking evidence without testimony of the characteristics of the breeds, and by
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failing to dismiss the charges of larceny and breaking and entering for insufficient
evidence. Id. Our Court held the trial court properly admitted the evidence and the
defendant’s motion to dismiss was properly denied. Id. at 646, 334 S.E.2d at 266.
In State v. Styles, 93 N.C. App. 596, 599, 379 S.E.2d 255, 258 (1989), two
bloodhounds tracked a human scent originating from the rape scene to the front
door of a trailer where the defendant was staying. The defendant argued on appeal
that the evidence was insufficient to convict him, because the victim was unable to
identify the defendant as the perpetrator of the rape. Id. at 603, 379 S.E.2d at 260.
Our Court disagreed, and explained “a bloodhound specially trained in
tracking human beings led a path from the front of the victim’s house to the culvert
where shoe prints were found and then to the trailer where the defendant was
staying.” Id. An expert testified the defendant’s shoes made the prints at the rape
scene and by the culvert. Id. at 600, 379 S.E.2d at 258. Additional expert testimony
showed hairs found and recovered at the scene were consistent with the defendant’s
hair. Id.
The facts of this case are distinguishable from those in both Green and Styles.
Here, the testimony of Max’s tracking behaviors was the sole testimony offered by
the State to establish that Defendant constructively possessed the rifle. In Styles,
hair and shoe print evidence was also presented to show Defendant was the
perpetrator. Id. In Green, the canines were offered a scent source of the defendant
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and codefendant, and were tracking a known scent. Green, 76 N.C. App. at 643, 334
S.E.2d at 265. Further, unlike the facts in this case, nothing in Green and Styles
indicates the canine lost the track, took a break for a period of time, and then
resumed. Defendant was not alone in the immediate area where the rifle was
found. No other evidence, such as fingerprints, DNA, or ownership, linked
Defendant to the rifle or the site from which it was recovered.
The officers’ testimony is insufficient to establish any link between Defendant
and the firearm. The canine tracking evidence on an unknown scent fails to raise,
as a matter of law, a reasonable inference of either actual or constructive possession
of a firearm by Defendant as a convicted felon. Viewed in the light most favorable
to the State, the evidence raises only a “suspicion [or] conjecture” that Defendant
possessed the rifle. The trial court erred in denying Defendant’s motion to dismiss.
Malloy, 309 N.C. at 179, 305 S.E.2d at 720.
IV. Conclusion
After viewing the evidence in the light most favorable to the State, the
evidence is insufficient to raise or permit an inference that Defendant actually or
constructively possessed the rifle, and to “remove that issue from the realm of
suspicion and conjecture.” Id. The trial court erred by denying Defendant’s motion
to dismiss the charge of possession of a firearm by a felon.
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The trial court’s judgment is reversed. This matter is remanded to the trial
court for entry of an order granting Defendant’s motion to dismiss. It is so ordered.
REVERSED AND REMANDED.
Judges ELMORE and DIETZ concur.
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