229 N.C. App. 556
N.C. Ct. App.2013Background
- At ~2:00 a.m. defendant Christopher Barnes was stopped for driving without headlights and arrested for driving while impaired.
- After arrest he was handcuffed, transported to the county jail, and asked to use the restroom; while in the jail area a bag of marijuana fell from his pants leg.
- Grand jury indicted Barnes on several drug counts; trial resulted in convictions for simple possession of marijuana and possession of marijuana in a penal institution/local confinement facility; sentence consolidated to 6–8 months.
- Barnes moved to dismiss the confinement-facility possession charge arguing insufficient evidence of intent and that he did not voluntarily bring the drug into the jail; he also argued the simple-possession conviction should be vacated if the confinement-facility conviction stands.
- The majority affirmed denial of the motion to dismiss the confinement-facility charge, holding the statute requires general intent/knowledge (not strict or specific intent) and that voluntariness of presence in the jail is not required; but it vacated the simple-possession conviction as a lesser-included offense and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for possession in a local confinement facility | State: evidence shows defendant knowingly possessed marijuana in the jail | Barnes: no evidence he intended to possess the drug in the jail; statute should not be applied absent specific intent | Court: conviction supported; statute requires general intent/knowledge, not specific intent; evidence adequate; denial of dismissal affirmed |
| Voluntariness (actus reus) — must defendant voluntarily bring contraband into jail? | State: crime punishes possession in facility; voluntariness of presence is irrelevant; possession is the voluntary act | Barnes: he was involuntarily brought to jail in handcuffs; introducing contraband was not a voluntary act | Court: majority rejects voluntariness-of-presence requirement; voluntary possession suffices as the actus reus; conviction stands (dissent would reverse) |
| Double jeopardy / multiple convictions for same act (lesser included) | State: prosecuted both offenses | Barnes: simple possession is lesser-included of confinement-facility possession; cannot convict of both absent distinct acts | Court: agrees with Barnes; simple possession conviction vacated because it is a lesser-included offense of the confinement-facility offense |
| Fifth Amendment concern (raised in dissent) | State: defendant could avoid enhanced charge by disclosing before entry; no Fifth Amendment violation | Barnes: forcing choice to confess to misdemeanor to avoid felony penalizes invocation of privilege | Court: majority rejects a Fifth Amendment bar to holding one criminally liable for knowingly entering jail in possession of contraband; dissent raises serious constitutional concern but majority declines relief on that ground |
Key Cases Cited
- State v. Bradshaw, 366 N.C. 90 (N.C. 2012) (standard for reviewing sufficiency motion and substantial-evidence test)
- State v. Baxter, 285 N.C. 735 (N.C. 1980) (possession requires power and intent to control disposition/use)
- State v. Elliott, 232 N.C. 377 (N.C. 1950) (knowledge as defense to possession charge)
- State v. Snead, 295 N.C. 615 (N.C. 1978) (conviction for lesser included offense principles)
- State v. Moncree, 188 N.C. App. 221 (N.C. Ct. App. 2008) (multiple convictions for possession require distinct acts separated in time/space)
- State v. Cargile, 123 Ohio St. 3d 343 (Ohio 2009) (holding that being taken to jail does not absolve a defendant who could have surrendered drugs earlier)
- State v. Tippetts, 180 Ore. App. 350 (Or. Ct. App. 2002) (contrast: court held no voluntary act where contraband was brought to jail only because police brought defendant there)