242 N.C. App. 252
N.C. Ct. App.2015Background
- Defendant Jeffrey Tryon Collington appeals his conviction for possession of a firearm by a felon and challenges the trial court's jury instructions as plain error.
- State witness Hoskins testified Defendant and Featherstone entered Sapp's recording studio, demanded to speak with “Tony,” and a struggle over a gun occurred during which cash was taken and Hoskins was assaulted; the gun was identified as Sapp's.
- Defendant testified he and Featherstone went to the studio for a drug transaction with Hoskins; he claimed he never possessed the gun and that Sapp later gave the gun to Featherstone.
- Indicted for conspiracy to commit robbery with a dangerous weapon, robbery with a dangerous weapon, possession of a firearm by a felon, and habitual felon; the court instructed on acting in concert and on the possession charge.
- During deliberations, the jury asked about constructive possession; the court limited the instruction to the firearm itself; the jury found Defendant guilty of possession by a felon and habitual felon, but not guilty of conspiracy or robbery; the verdict does not specify the theory (actual vs. concert) used by the jury.
- No PLAIN ERROR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Plain error from acting-in-concert instruction for felonious possession | Collington argues the instruction allowed conviction based on co‑defendant’s conduct | Collington asserts no plain error and prejudice insufficient | No plain error |
| Sufficiency of evidence to convict for possession by a felon | State contends evidence adequately showed possession by felon | Collington argues evidence was insufficient or improperly tied to the theory | Evidence sufficient; conviction upheld |
Key Cases Cited
- State v. Lawrence, 365 N.C. 506 (2012) (plain-error standard; heavy burden on defendant)
- State v. Diaz, 155 N.C.App. 307 (2002) (acting-in-concert theory not generally applicable to possession offenses)
- State v. Pakulski, 319 N.C. 562 (1987) (plain error for disjunctive theories; jury must reveal theory relied on)
- Viar v. N.C. Dep't of Transp., 359 N.C. 400 (2005) (courts not to create an appeal for an appellant)