in the Court of Appeals 25 January 2017.
by Defendant by writ of certiorari from judgment entered 28
January 2016 by Judge Yvonne M. Evans in Mecklenburg County
Superior Court Mecklenburg County, No. 14 CRS 232320.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General John R. Green, Jr., for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Constance E. Widenhouse, for Defendant-Appellant.
trial judge instructs the jury that it can find a criminal
defendant guilty based upon alternative theories of a crime,
including one theory not supported by the evidence, over the
defendant's objection, precedent requires us to vacate
and order a new trial.
Germaine Malachi ("Defendant") appeals from his
conviction for possession of a firearm by a felon following a
jury trial and a related conviction for attaining habitual
felon status. Defendant argues that the trial court erred by
instructing the jury that it could find Defendant guilty if
he constructively possessed the firearm, even though the
State failed to present any evidence supporting that theory.
Defendant also argues that the trial court committed plain
error by allowing the jury to hear evidence obtained as a
result of an unconstitutional stop and seizure of Defendant.
After careful review, we vacate the judgment and award
Defendant a new trial based on the trial court's
erroneous jury instruction.
and Procedural Background
was indicted on 16 November 2015 for one count of possession
of a firearm by a felon, one count of carrying a concealed
weapon, and one count of having attained habitual felon
status. Defendant was tried before a jury on 19
and 20 January 2016. The evidence at trial tended to show the
after midnight on 14 August 2014, the Charlotte-Mecklenburg
Police Department received a 911 call from an anonymous
caller. The caller told the dispatcher that in the rear
parking lot of a gas station located at 3416 Freedom Drive in
Charlotte, North Carolina, a black male wearing a red shirt
and black pants had just placed a handgun in the waistband of
Ethan Clark, in uniform and a marked car, first responded to
the call. Officer Clark's arrival was followed almost
immediately by Officer Jason Van Aken. Officer Clark saw
about six to eight people standing in the parking lot,
including a person who matched the description provided to
the dispatcher and was later identified as Defendant.
Officer Clark got out of his car, Defendant looked directly
at him, "bladed, turned his body away, [and] started to
walk away." Officer Clark immediately approached
Defendant and took hold of his arm. Officer Van Aken held
Defendant's other arm and the two officers walked
Defendant away from the crowd of people. Defendant was
squirming. Officer Clark told Defendant to relax. Prior to
this, neither officer spoke with Defendant.
Clark placed Defendant in handcuffs and told him that he was
not under arrest. Officer Van Aken then frisked Defendant and
pulled a revolver from his right hip waistband. Neither
officer saw the weapon until after it was produced during the
search. As the two officers were conducting the search, a
third officer, Officer Kevin Hawkins, arrived. The officers
then told Defendant he was under arrest and placed him in the
back of Officer Clark's patrol vehicle.
trial court instructed the jury on the elements of a felon in
possession of a firearm, and, over defense counsel's
objection, that Defendant could be convicted if he was found
to have possessed a weapon by means of actual or constructive
possession. During deliberations, the jury sought
clarification of "possession of a firearm" to which
the trial court, again over defense ...