State v. Collington, 259 N.C. App. 127

On Oct. 1, 2012 an altercation at a recording studio left Christopher Hoskins saying Defendant Jeffrey Collington pointed a gun at him; Collington denied possessing a gun and said his brother received the gun later from a third party, Dade Sapp.
Indicted for conspiracy, robbery with a dangerous weapon, possession of a firearm by a felon, and habitual felon status; jury acquitted on conspiracy and robbery but convicted on possession by a felon.
Trial court instructed the jury on two alternative theories for possession by a felon: (1) actual/constructive possession by Collington, and (2) liability by acting in concert with his brother (an acting-in-concert instruction).
The verdict form did not indicate which theory the jury relied on; Collington appealed arguing the acting-in-concert instruction was improper.
In Collington I this Court declined to reverse under plain-error review, reasoning the record could support actual/constructive possession; appellate counsel did not rely on State v. Pakulski (error on disjunctive instructions where record doesn’t show which theory the jury used).
Collington filed a Motion for Appropriate Relief alleging ineffective assistance of appellate counsel for failing to press Pakulski; on remand the trial court granted MAR, vacated the conviction and ordered a new trial; the State appealed and this Court affirmed.

Issue	State's Argument	Collington's Argument	Held
Whether the trial court erred by granting MAR for ineffective assistance of appellate counsel	Appellate counsel’s omission of Pakulski was not deficient or prejudicial because evidence supported actual/constructive possession and plain error therefore would fail	Appellate counsel was ineffective for failing to argue Pakulski; had Pakulski been argued, plain error would have required reversal because the verdict form did not show which disjunctive theory was used	Affirmed: counsel’s failure to invoke Pakulski was objectively unreasonable and prejudicial; MAR and new trial properly granted
Whether an acting-in-concert instruction for possession by a felon mandates reversal when the verdict does not specify the theory	Acting-in-concert instruction was not necessarily improper and even if questionable, overwhelming or sufficient evidence of actual possession would defeat plain error	An acting-in-concert instruction is improper when it creates a disjunctive instruction and the record does not show which theory the jury relied on; Pakulski should have been raised	Court applied Pakulski principle: where alternative theories include an improper theory and the record cannot show which theory was used, error must be resolved for defendant; appellate counsel’s failure to raise it caused prejudice

State v. Pakulski, 319 N.C. 562 (1987) (where jury is instructed on alternative theories and one is erroneous and the record does not show which theory the jury used, resolve ambiguity for defendant)
State v. Lawrence, 365 N.C. 506 (2012) (plain error standard requires showing probable impact on jury verdict)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
Evitts v. Lucey, 469 U.S. 387 (1985) (right to effective assistance includes appellate counsel)
State v. Odom, 307 N.C. 655 (1983) (plain error review when no timely objection at trial)