State v. MalachiÂ, 253 N.C. App. 170

Around midnight on Aug. 14, 2014, police responded to an anonymous 911 tip that a black male in a red shirt had placed a handgun in his waistband at a gas‑station parking lot in Charlotte.
Officers Ethan Clark and Jason Van Aken arrived, saw Defendant Malachi matching the description, approached him, and immediately took hold of his arms as he tried to walk away.
Defendant was handcuffed (told he was not under arrest), frisked, and Officer Van Aken removed a revolver from Defendant’s right hip waistband; the weapon was not visible before the frisk.
Defendant was acquitted of carrying a concealed weapon but convicted by a jury of possession of a firearm by a felon; he later entered an Alford plea to habitual felon status.
At trial, over defense objection, the court instructed the jury on both actual and constructive possession and re‑stated those definitions when the jury asked for clarification during deliberations.
Defendant appealed, arguing the constructive‑possession instruction was unsupported by the evidence and that evidence from an allegedly unconstitutional stop should have been excluded. The Court of Appeals vacated and remanded for a new trial based on the erroneous instruction.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Malachi)	Held
Whether the court erred by instructing on constructive possession when evidence supported only actual possession	Instruction was permissible because officers could be displaced and Defendant theoretically could have maintained control over the gun	Instruction was erroneous: State presented evidence only of actual possession (gun on his waistband and removed by officer) and no evidence that Defendant had power/intent to control it when not in his custody	Reversed: instruction on constructive possession was unsupported by the evidence and, given it was given over objection, required a new trial
Whether admission of evidence from the stop/search violated the Fourth Amendment and constituted plain error	Stop and seizure were lawful; evidence should be admitted (State contends)	Stop/search unconstitutional; evidence should have been excluded	Court declined to resolve because remedy for the instructional error (new trial) obviated need to decide this claim

State v. Lynch, 327 N.C. 210 (1990) (error to submit alternative theories to jury when one theory lacks evidentiary support; mandates new trial)
State v. Pakulski, 319 N.C. 562 (1987) (trial court may not instruct on an alternate theory unsupported by evidence; reversible error)
State v. Boyd, 366 N.C. 548 (2013) (clarifies plain error review for unpreserved erroneous disjunctive instructions; defendant must show probable impact)
State v. O’Rourke, 114 N.C. App. 435 (1994) (instructing on alternative theories, one unsupported, requires new trial when jury’s basis is indeterminate)
State v. Alston, 131 N.C. App. 514 (1998) (explains distinction between actual and constructive possession)
State v. Perry, 222 N.C. App. 813 (2012) (elements of felon in possession: prior felony and subsequent possession)
State v. Cameron, 284 N.C. 165 (1973) (trial judges should not give jury instructions unsupported by the evidence)
State v. Maske, 358 N.C. 40 (2004) (prejudicial error standard—reversible when reasonable possibility of different outcome)
State v. Beaver, 317 N.C. 643 (1986) (constructive possession requires intent and capability to control the item)