G.S. 14-415.1 makes it unlawful for “any person who has been convicted of a felony to . . . possess . . . any firearm,” with limited exceptions. In State v. Garris, 191 N.C. App. 276 (2008), the court of appeals held that a defendant may be “convicted and sentenced only once for possession of a firearm by a felon based on his simultaneous possession of [multiple] firearms.” In State v. Wiggins, __ N.C. App. __, 707 S.E.2d 664 (2011), the court extended the logic of Garris to a defendant who obtained two guns simultaneously, then used the guns to shoot three people in a two-hour period. The defendant was convicted of three counts of violating G.S. 14-415.1, one for each time he used the weapons, but the court of appeals ruled that “the fact that Defendant may have fired [the] weapons . . . on more than one occasion during the commission of several substantive crimes does not support multiple possession-based convictions and sentences.”
Last week, however, in State v. Lee, the court declined to apply Garris to a case in which the defendant robbed multiple convenience stores, using the same gun, over the course of five weeks. The court affirmed the defendant’s convictions of multiple counts of possession of a firearm by a felon, stating: “If the evidence shows that the defendant possessed a weapon on different days and in different locations, the holding from Wiggins is not controlling, and the defendant can be charged with multiple possession offenses.” In other words, “each possession of the weapon was [sufficiently] separate in time and location” to allow a conviction in connection with each robbery.
The line between Garris and Wiggins isn’t a bright one. For example, suppose that a defendant robs a pedestrian at gunpoint in downtown Raleigh at 11:59 p.m., then robs another pedestrian a block away at 12:01 a.m. the next day. I assume that although the crimes technically took place on “different days,” Wiggins would apply. But what if we extend the time gap from 10:00 p.m. to 3:00 a.m., and place one robbery in Raleigh and one in Cary? Are we now in Lee territory? What if the time gap is even bigger, but the geographic gap is smaller — for example, what if a defendant robs the same business at gunpoint twice, a week apart? My guess is that Lee applies, but we’ll have to wait for further cases for a more precise test.