Hearsay Cross-Examination and Constructive Possession 

In North Carolina v. Capps, the North Carolina Court of Appeals examined two key issues arising from a felonious possession of stolen goods conviction: (1) whether the evidence was sufficient to prove the defendant’s constructive possession of stolen property; and (2) whether the trial court erred by excluding as hearsay certain testimony during cross-examination.

The published April 2025 opinion provides insight into how appellate courts analyze hearsay preservation requirements and the evidentiary threshold for constructive possession in criminal cases. The court ultimately found no error, emphasizing the importance of proper trial procedure (like making an offer of proof for excluded evidence) and outlining the incriminating circumstances that supported submitting the case to the jury. Below, we break down the court’s reasoning on each issue and highlight practical lessons for attorneys and judges handling similar evidentiary and sufficiency questions.

Facing serious felony charges can be overwhelming. At Powers Law Firm, we offer steady, experienced guidance to help navigate the legal system with clarity and care. We represent clients across the Charlotte metro region, including Union, Iredell, Mecklenburg, Gaston, Rowan, and Lincoln Counties. To talk through your situation and explore your options, call 704-342-4357.

Constructive Possession and Sufficiency in State v. Capps: Evidence of Dominion and Control

An important issue in North Carolina v. Capps (“State v Capps”)revolves around whether the trial court erred in denying the defendant’s motion to dismiss the charge of felonious possession of stolen goods. Capps contended that the evidence at trial was insufficient to prove he “possessed” the stolen camper found on his property.

This claim was essentially a challenge to the constructive possession doctrine, since Capps did not have the camper in hand (actual possession) but was implicated due to it being on land he owned.

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The Court of Appeals reviewed this claim de novo (i.e. afresh, as a legal question) and concluded that the State had presented substantial evidence of each element, including Capps’s constructive possession of the camper, sufficient to submit the case to the jury.

Legal Standard: Substantial Evidence & Elements of Possession of Stolen Goods

When a defendant moves to dismiss for insufficient evidence, the trial judge (and later the appellate court on review) asks whether “there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator.” Substantial evidence means “relevant evidence that a rational juror could accept as adequate to find each element beyond a reasonable doubt.”

In making this determination, courts take the evidence in the light most favorable to the State, and all reasonable inferences are drawn in the State’s favor.

Importantly, the court does not weigh the evidence or judge credibility at this stage – even purely circumstantial evidence can be enough if it reasonably supports the elements of the offense. If the evidence only raises a suspicion or conjecture of guilt, then dismissal of charges is appropriate; but if a reasonable inference of guilt can be drawn, the jury gets to decide the facts.

In a charge of felonious possession of stolen property (under N.C. Gen. Stat. § 14-71.1), the State must prove several elements. The Capps opinion, citing State v. Privette, lists five essential elements as follows:

1. Possession of personal property (actual or constructive possession);

2. The property had a value over $1,000;

3. The property was stolen;

4. The possessor knew or had reasonable grounds to believe the property was stolen; and

5. The possessor acted with a dishonest purpose (knowing possession was not rightful).

In Capps, elements (2) through (5) were not in dispute on appeal. The only contested element was the first: whether defendant possessed the stolen camper. Since the camper was not found in Capps’s direct physical custody, the State’s theory relied on constructive possession.

Constructive Possession Doctrine and “Incriminating Circumstances”

Possession can be either actual or constructive. A person has actual possession when the property is physically on their person or in their immediate control.

Constructive possession, by contrast, exists when the individual, while not holding the item, has the intent and capability to maintain control and dominion over it.

North Carolina law recognizes that if contraband or stolen goods are found on premises under the defendant’s control, that fact alone permits an inference of possession – it suggests the defendant could control the item. However, the analysis becomes more complex if the defendant’s control over the area is nonexclusive, meaning others also had access or occupancy.

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In such cases, our courts have long required “other incriminating circumstances” to tie the defendant to the contraband; mere presence on the property, by itself, is not enough when others might be responsible. This principle prevents unfairly imputing possession to an innocent owner or roommate just because contraband was found on shared property.

The Capps court, relying on North Carolina v. Chekanow and related cases, outlined several factors that courts consider to determine if sufficient incriminating circumstances exist for constructive possession:

• Ownership and occupation of the property where the item is found (ownership is a “strong” indicator of control);

• The defendant’s proximity to the contraband at relevant times;

• Indicia of control by the defendant over the place where the contraband was found (e.g., dominion over the premises or container);

• The defendant’s suspicious behavior around the time of discovery of the contraband (e.g., attempting to hide it, denying knowledge implausibly, or as in this case, pointedly not inquiring about an unknown item’s origin);

• Other evidence linking the defendant to the contraband, such as the defendant’s personal effects on the item or statements acknowledging ownership.

No single factor is determinative; courts look at the totality of circumstances, and if a reasonable inference of possession arises from the combination of factors, the issue goes to the jury.

Notably, our Supreme Court has emphasized that ownership of the premises where the contraband is found is a particularly weighty factor, sometimes tipping the analysis in favor of finding control. Additionally, evidence that the defendant knew about the contraband’s presence (or its illegal nature) can itself be a strong incriminating circumstance permitting a finding of constructive possession.

Application: Did the Defendant Constructively Possess the Stolen Property?

Defendant argued that the property had merely “changed hands” among others and that he never exercised dominion or control over it. In essence, he claimed he was convicted “simply because [the camper] was located on his property” without proof of additional incriminating conduct. The Court of Appeals rejected this characterization and held that the State’s evidence, viewed in totality, did provide the necessary incriminating circumstances to support a finding of constructive possession.

Several facts proved critical in the court’s analysis:

• Knowledge of the Camper’s Stolen Status: Detective Ballew testified that when he interviewed Capps, the defendant knew the camper was stolen. Knowledge that contraband is on one’s property is a powerful factor indicating conscious possession. The court cited the principle that evidence of a defendant’s knowledge of contraband on his property is “sufficient to permit a jury to find constructive possession.” In Capps’s case, by the time of the police interview, Capps acknowledged he was aware the camper was stolen – undermining any claim of innocent ignorance.

• Suspicious Lack of Curiosity (Behavior): The evidence showed that Capps saw the camper sitting in the field on his property as soon as he got out of jail, and it remained there thereafter. ​Yet, Capps admitted to Detective Ballew that he didn’t know where [the camper] came from and he didn’t choose to ask. This intentional lack of curiosity about a newly arrived camper on his land was deemed suspicious. The appellate court noted that a defendant’s “suspicious behavior in conjunction with the discovery of contraband” (here, willful ignorance of a dubious item on his property) can count as an incriminating circumstance. In other words, jurors could view Capps’s failure to inquire or remove the camper as evidence that he knew it was stolen or at least did not want to know, implying consciousness of guilt.

• Continuous Proximity: From when Capps returned home until when officers found the camper and a third party living in it, the camper was on Capps’s land. Capps was living on the same property (in a structure nearby) during that period. The court considered Capps’s “continuing proximity to the contraband” as another incriminating factor. Even though Capps was not inside the camper, he was consistently near it for an extended time, suggesting an ability to exercise control. A defendant’s presence at the location of contraband around the time it is discovered can support an inference of constructive possession.

• Ownership and Control of the Premises: It was undisputed that the Defendant owned the property where the camper was found, a fact the court labeled as strong evidence of control. Even though another person was occupying the camper, the Defendant, as the landowner, had ultimate authority over the premises. The presence of a stolen vehicle on one’s land, especially land one resides on or controls, naturally raises an inference that the owner allowed it to be there and could assert control over it. Ownership of the premises may be a weighty factor favoring a finding of constructive possession.

• Additional Linking Evidence: The narrative in Capps also indicated that the camper had been altered (painted a different color, skirted with vinyl siding and pallets, and set on blocks) while on Capps’s property​. These modifications suggested someone was adapting the stolen camper for use on that site. The totality of circumstances – including knowledge, behavior, proximity, and property ownership – can give rise to more than a mere suspicion; it allows a reasonable juror to infer intent and capability to control the stolen property.

Given these factors, the Court of Appeals held that there was substantial evidence of incriminating circumstances connecting Capps to the stolen camper, sufficient to survive a motion to dismiss. The trial judge was correct to let the jury decide the issue of possession. In the court’s words, it was readily apparent that the State’s evidence met the threshold, and thus denying the motion to dismiss was not error.

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For appellate purposes, the Capps court also reiterated that it reviews sufficiency of evidence de novo and considers all evidence admitted (even if some was arguably incompetent) in favor of the State. Here, after that independent review, the court was satisfied that every rational inference supported the State’s case and that any conflicts or alternative theories were for the jury to resolve, not the court.

Hearsay Exclusion in State v. Capps: Offer of Proof and Issue Preservation

Another issue on appeal was whether the trial judge improperly prevented the defense from eliciting certain testimony from a law enforcement witness on cross-examination. During the trial, defense counsel attempted to ask the detective if the defendant had told the detective that a third party (the alleged thief) lied to the defendant about the stolen camper.

The State objected to this question as calling for hearsay, and the trial court sustained the objection. This meant the detective never answered whether the defendant claimed that a third party had misled him about the camper’s ownership. On appeal, Capps argued that excluding this answer was error because it was not hearsay or was crucial to his defense. However, the Court of Appeals did not reach the merits of the hearsay argument – instead, the court held that the issue was not properly preserved for appellate review due to the defense’s failure to make an offer of proof.

Offer of Proof Requirement for Excluded Testimony

Under North Carolina evidence law, when a trial court sustains an objection and excludes testimony, the party seeking that evidence must preserve the issue by making an offer of proof. An offer of proof is typically done outside the presence of the jury and involves putting on the record what the witness would have said if allowed to answer.

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The purpose is to show the significance and substance of the excluded testimony so that an appellate court can review whether excluding it was prejudicial error. As the Court of Appeals noted in Capps, the essential content or substance of the witness’s testimony must be shown before we can ascertain whether prejudicial error occurred. Without an offer of proof, an appellate court can only speculate about what the testimony would have been and cannot properly evaluate the trial court’s ruling.

In this case, when the hearsay objection was sustained, defense counsel simply ended the cross-examination without putting Detective Ballew’s expected answer on the record. No offer of proof was made to reveal what Ballew would have said. As a result, the appellate court explained that Capps “failed to properly preserve this issue for appellate review” by not making an offer of proof. The absence of an offer of proof was fatal to his hearsay challenge – the court could not determine if excluding the answer caused any harm because it had no record of the answer’s content.

Apparent Substance vs. Speculation

Capps’s appellate counsel tried to circumvent the lack of offer of proof by arguing that the substance of the excluded testimony was apparent from the context. The leading question defense counsel asked – “Defendant told you that John [Daniels] had lied to him, did he not?” – arguably suggested the expected answer (that Detective Ballew would affirm Capps said he’d been lied to). Counsel pointed to a Court of Appeals decision, which stated that an offer of proof may not be required if the substance of the excluded testimony is apparent from the context within which the question was asked. However, the Capps court made clear that this argument could not succeed.

First, the case was a nonprecedential decision (it had been affirmed by an equally divided Supreme Court and designated not precedential). Thus, it was not binding authority. More importantly, the Court of Appeals in Capps found that the substance of the detective’s testimony was not obvious from context. The court noted it was entirely possible the detective’s answer might have been unfavorable or irrelevant – for instance, the detective might have said that Capps did not actually claim Daniels lied, or that if Capps did say that, the “lie” was not about a relevant matter. In short, the content of the excluded statement was ambiguous; the appellate judges could not tell what Detective Ballew’s answer would have been.

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North Carolina precedent reinforced this point: An exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness’s testimony would have been had he been permitted to testify. Because Capps provided no record of the detective’s answer, the Court of Appeals refused to engage in speculation or assume the answer based on the attorney’s question. Therefore, the hearsay-based argument was dismissed without the court deciding whether the testimony was actually hearsay or admissible.

Takeaway on Hearsay Preservation

For trial lawyers, State v. Capps underlines a critical practice point: whenever your evidence is excluded on objection, make a clear offer of proof on the record. This may involve directly stating what you expect the testimony to be or questioning the witness outside the jury’s presence. If the substance of the evidence is not obvious from context (and it usually isn’t), failing to do this will likely waive the issue on appeal. In Capps, because the defense did not preserve the issue, the appellate court did not analyze whether the statement about being lied to was admissible or if its exclusion harmed the defense. The result was that any potential error in excluding that testimony became unreviewable. Both prosecutors and defense attorneys should remember that North Carolina appellate courts demand a proper record to consider evidentiary errors. It is not enough to pose a question; the expected answer must be shown in the record if the question is disallowed. In sum, to challenge a hearsay ruling on appeal, the proponent must preserve the point by disclosing the excluded evidence’s substance through an offer of proof.

Practical Insights from State v. Capps for Trial Attorneys

State v. Capps provides an example of the intersection between procedural rules and substantive criminal law in North Carolina. Trial lawyers can draw a few important lessons from this decision:

• Always Preserve Evidentiary Objections: If you attempt to introduce evidence and the court sustains an objection (such as hearsay), immediately make an offer of proof. Failing to do so will likely doom the argument on appeal, because the reviewing court will not consider an excluded answer without a record of its substance. Defense attorneys should be prepared to articulate why the testimony matters and what it would have been. If no offer of proof follows, that issue may be unreviewable later. Both sides should remember that North Carolina appellate courts tend to strictly enforce this preservation requirement.

• Understand Constructive Possession Factors: In cases involving contraband or stolen goods not found directly on the defendant, prosecutors must marshal incriminating circumstances beyond mere presence or ownership. Factors like the defendant’s knowledge of the item, suspicious conduct (e.g., failing to inquire about or remove a suspicious item), proximity over time, and ownership/control of premises can prove important. For the State, building a record on these points is important to withstand a motion to dismiss. For defense counsel, challenging each incriminating factor or offering innocent explanations can be the key to defeating an inference of constructive possession. If others had equal access to the area, emphasize the lack of exclusive control and try to negate the “plus factors” (for example, show the defendant genuinely didn’t know about the item, or had no ability to control its presence).

• Sufficiency of Evidence Motions (Timing and Strategy): A motion to dismiss for insufficient evidence should be made at trial (typically at the close of State’s evidence and renewed at the close of all evidence) to preserve the issue. On appeal, the standard is favorable to the State, and all evidence (even circumstantial) is considered in the light most favorable to the prosecution. Defense attorneys must, therefore, create a record that even under that generous standard, the evidence fails to establish a necessary element.

• Appellate Review is Limited by the Trial Record: What happens (or doesn’t happen) at trial controls the scope of appeal. The appellate court will not consider the excluded statement’s effect if they are not preserved and will be constrained to the evidence presented when assessing sufficiency. This highlights the broader point that trial counsel must be careful in creating a complete record (which can indeed prove a difficult task at times, particularly if being pressured by the Court to “move along”). If evidence is excluded, proffer it. If evidence is admitted that shouldn’t be, object and get a ruling. If an element is not proved, move to dismiss at the proper times. Effective appellate advocacy begins with diligent trial advocacy.

Preserving Excluded Testimony Issues and Constructive Possession 

The North Carolina Court of Appeals’ decision in State v. Capps (Apr. 2025) demonstrates a careful application of evidentiary and substantive law principles. On the hearsay issue, the court’s reasoning was grounded not in whether the testimony was truthfully hearsay or not, but in the procedural rule that demands an offer of proof to preserve such arguments. This serves as a stark reminder: even the most compelling evidence or argument cannot be considered on appeal if it was not properly preserved at trial. On the sufficiency of evidence issue, Capps reinforces how constructive possession works in practice. When multiple people and a piece of stolen property are involved, the court will sift through the circumstances – knowledge, behavior, proximity, control of premises – to see if the defendant’s connection to the contraband is strong enough for a jury to find dominion and control. In Capps’s case, the presence of the stolen camper on his land, his awareness and suspicious inaction, and his property rights combined to justify letting the jury decide his guilt.

For legal practitioners, State v. Capps is both a cautionary tale and a guide. It cautions attorneys to mind the procedural rules of preservation, and it guides courts on evaluating evidence of possession when direct physical control is absent. The opinion blends academic clarity with practical reasoning, making it a valuable reference for anyone litigating criminal cases involving hearsay objections or contested possession of contraband. In the end, the court affirmed that Ricky Capps received a fair trial, free from error, and in doing so, provided a blueprint for how similar cases might be handled to help ensure just and error-free proceedings.

If you or someone you care about is facing serious felony charges, Powers Law Firm provides experienced, steady guidance throughout the Charlotte metro region, including Union, Iredell, Mecklenburg, Gaston, Rowan, and Lincoln Counties. Call 704-342-4357 to discuss how we may be able to help.