An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA07-438
NORTH CAROLINA COURT OF APPEALS
Filed: 20 November 2007
STATE OF NORTH CAROLINA
v.
Johnston County
No. 05 CRS 52240
DERRICK WILLIAMS
Appeal by defendant from judgments entered 20 September 2006
Court of Appeals
by Judge Knox V. Jenkins in Johnston County Superior Court.
Heard
in the Court of Appeals 8 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin Lee Gavin, II, for the State.
Slip Opinion
John Keaton Wiles, for defendant-appellant.
ELMORE, Judge.
Derrick Williams (defendant) was found guilty of trafficking
in marijuana by possession and by transportation.
The State presented evidence tending to show that on 8 June
2005, Deputy Robert Jason Crocker of the Johnston County Sheriff’s
Department made a traffic stop of a vehicle on Interstate Highway
95.
Deputy Crocker asked the driver, who was the sole occupant of
the
vehicle,
registration.
to
produce
an
operator’s
license
and
vehicle
The driver, identified as defendant, produced an
expired vehicle rental agreement and a South Carolina driver’s
license, which the deputy discovered had been suspended.
Deputy
-2Crocker also smelled the odor of burnt marijuana.
asked defendant to step out of the vehicle.
Deputy Crocker
He also called for
backup to assist in searching the vehicle.
With defendant’s consent, Deputy Crocker opened the trunk of
the vehicle and saw two boxes wrapped in birthday gift wrap.
The
deputy picked up one of the boxes, shook it, and asked defendant
what was inside the box.
microwave oven.
the package.
Defendant responded that it was a
The deputy asked defendant for permission to open
Defendant declined, stating that the packages were
nicely wrapped.
The deputy asked where the box originated.
Defendant responded that his cousin had wrapped it.
Defendant did
not respond when asked to identify the cousin.
Another officer subsequently arrived with a canine trained to
sniff for narcotics.
in each box.
the boxes.
The dog alerted to the presence of narcotics
Deputy Crocker advised defendant that he was opening
Defendant “began to sweat profusely and began to start
belching uncontrollably.”
Deputy Crocker cut open one box and found a plastic bucket.
At this point defendant attempted to run past the officers and get
back into his vehicle.
defendant.
They
cellophane-wrapped
The officers apprehended and handcuffed
looked
packets
inside
the
containing
buckets
green
and
found
vegetable
two
matter,
subsequently identified as 4.8 and 4.934 pounds of marijuana.
Defendant contends that the court violated his right to remain
silent when it overruled his objection to the following closing
argument of the prosecutor:
-3Remember when Crocker asked him who wrapped
it.
After he said no, I don’t want you
looking in there because they’re wrapped so
nicely, hoping he wouldn’t and that would be
the end of it. Crocker said well, who wrapped
it?
Remember on the video the defendant
hesitates for a while and looks around and
sort of does his thumb like this (indicating)
and says oh, my cousin, my cousin down there.
Who’s the cousin? We don’t know. No name.
The cousin didn’t come in here and testify.
At this point, defendant interposed a general objection and the
court overruled it.
“In closing arguments a prosecutor may not comment on the
failure of a defendant to testify at trial.”
State v. Howard, 320
N.C. 718, 728, 360 S.E.2d 790, 796 (1987).
However, “[a]lthough
the defendant’s failure to take the stand and deny the charges may
not be the subject of comment, the defendant’s failure to produce
exculpatory evidence or to contradict evidence presented by the
State may properly be brought to the jury’s attention by the State
in its closing argument.”
State v. Jordan, 305 N.C. 274, 280, 287
S.E.2d 827, 831 (1982). We conclude that the prosecutor’s argument
in the case at bar was directed at defendant’s failure to offer
evidence, in the form of the cousin’s testimony, to exculpate
defendant or to rebut the State’s case.
defendant’s failure to testify.
It was not directed at
This assignment of error is
overruled.
Defendant’s remaining contention is that the court erred by
giving an instruction on intent with regard to the charge of
trafficking in possession “when knowledge, rather than intent, was
the issue raised by the evidence in this case.”
To convict a
-4defendant of trafficking by possession, it must be proved that the
defendant knowingly possessed the item.
State v. Munoz, 141 N.C.
App. 675, 684, 541 S.E.2d 218, 224 (2001).
Black’s Law Dictionary
defines “knowing” as “Having or showing awareness or understanding;
well informed,” or “deliberate; conscious.” Black’s Law Dictionary
888 (8th ed. 2004).
An accused has possession of contraband
material “when he has both the power and intent to control its
disposition or use. Where such materials are found on the premises
under the control of an accused, this fact, in and of itself, gives
rise to an inference of knowledge and possession . . . .”
Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
State v.
Given that
proof of possession may require some proof of intent, we fail to
perceive how defendant was prejudiced by an instruction on intent.
We hold that defendant received a fair trial, free from
prejudicial error.
No error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).
