State v. Malachi, 371 N.C. 719

Background

Shortly after midnight on Aug. 14, 2014, police responded to an anonymous report of a Black male in a red shirt placing a handgun in his pants at a convenience store; officers encountered defendant who matched the description.
Officers detained and frisked defendant; Officer Van Aken removed a revolver from defendant's waistband; defendant said another person had given him the gun to hold.
Defendant was indicted for possession of a firearm by a felon and carrying a concealed weapon; he stipulated to a prior felony; jury convicted on possession, acquitted on concealment; defendant later pled guilty to habitual felon enhancement and was sentenced.
At trial the State requested and the court gave a jury instruction defining both actual and constructive possession; defendant objected that only actual possession was supported by the evidence.
The Court of Appeals held the constructive-possession instruction was unsupported and granted a new trial; the State sought discretionary review arguing (1) actual possession is subsumed by constructive possession and (2) any instructional error must be reviewed for prejudice.
The North Carolina Supreme Court reversed the Court of Appeals: it held the instruction on constructive possession was erroneous but that the error was subject to harmless-error review; on the record, there was no reasonable possibility the jury relied on the unsupported theory, so conviction stands; remanded for consideration of other claims.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Malachi)	Held
Whether the jury may be instructed on both actual and constructive possession when evidence supports only actual possession	Actual possession is a subset of constructive possession; instruction was proper and not erroneous	Actual and constructive possession are distinct; constructive possession applies only when actual possession is lacking; instruction was unsupported and erroneous	Trial court erred in giving constructive-possession instruction (actual vs constructive are distinct)
Standard of review for an instruction presenting an unsupported theory when objected to at trial	Even with objection, error is subject to prejudicial (harmless-error) review; State must show no reasonable possibility of a different result	Error is presumptively reversible per North Carolina precedent when an instruction allows conviction on an unsupported theory and objection was made	Error is reviewable for harmless error (N.C.G.S. § 15A-1443(a)); automatic reversal not adopted
Whether the unsupported constructive-possession instruction prejudiced defendant	Evidence of actual possession was overwhelming and undisputed (gun taken from defendant; he acknowledged holding it); thus no reasonable possibility jury relied on constructive theory	Jury asked for possession definition and acquitted on related charge; officer credibility issues create reasonable possibility jury relied on constructive theory	No reasonable possibility of a different outcome; the error was harmless on this record
Remedy and disposition	Reverse Court of Appeals; affirm conviction and remand for remaining issues	Affirm Court of Appeals' new trial order	Court reversed Court of Appeals and remanded for consideration of other claims; conviction stands

Key Cases Cited

State v. Boyd, 366 N.C. 210 (N.C. 2012) (discusses plain-error review for unpreserved instructional error)
State v. Pakulski, 319 N.C. 562 (N.C. 1987) (addressed submission of alternate theory unsupported by evidence)
State v. Lynch, 327 N.C. 210 (N.C. 1990) (instructing on unsupported theory can require reversal depending on prejudice)
Griffin v. United States, 502 U.S. 46 (U.S. 1991) (federal rule that a general guilty verdict may be upheld if one of multiple theories is supported by sufficient evidence)
State v. Moore, 315 N.C. 738 (N.C. 1986) (noting it is generally prejudicial to permit conviction on theory not supported by the evidence)
State v. Petersilie, 334 N.C. 169 (N.C. 1993) (precedent discussing reversal where jury instructed on unsupported theory)