in the Court of Appeals 22 March 2017.
by defendant from judgment entered 10 February 2016 by Judge
Wayland J. Sermons, Jr. in Edgecombe County Superior Court
No. 15 CRS 50277.
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
William D. Spence for defendant-appellant.
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.
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
received a "tip" approximately fifteen minutes
later, which caused them to establish a perimeter around a
large section of woods adjacent to the residence.
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.
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.
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 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
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
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.
State presented evidence tending to show Defendant was
previously convicted of a felony offense, taking indecent
liberties with a child, in 2009. The jury convicted Defendant
of possession of a firearm by a felon. The trial court
sentenced Defendant ...