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    "judges": [
      "Judges JOHNSON and LEWIS concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. CEDRICK L. WILDER"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nOn 30 November 1994, Elkin police officer Chris Cave stopped the vehicle in which the defendant, Cedrick L. Wilder, was a passenger approximately 150 to 200 feet from defendant\u2019s home. The defendant was suspected of being involved in a shooting incident. From approximately 100 to 150 feet behind the defendant\u2019s stopped car, Officer Cave observed the defendant throw a rough-shaped, predominantly white object from the car into the bushes. The defendant then exited the car and approached Officer Cave\u2019s car yelling and waving his arms. Officer Cave, concerned that the defendant might have a weapon, moved his patrol car away from defendant and called for back up. The defendant then entered his house and remained inside for approximately thirty seconds. Upon exiting the house, he again began shouting, waving his arms and walking toward Officer Cave and Officer Collins, who had arrived as back-up. Officer Easter arrived after obtaining a search warrant for defendant\u2019s house and any vehicles on the premises. He calmed the defendant and asked him what was going on. The defendant responded \u201cDope. It\u2019s all over dope.\u201d A number of items were seized in a search of the defendant\u2019s house including razor blades and plastic bags, one of which was later determined to contain cocaine residue. From their patrol car, Officer Cave and Sergeant Chris Swaim used a flashlight and the vehicle\u2019s spot lights to search the bushes for the package the defendant had thrown; however, they were unable to find the package.\nA neighbor, James Edward Vestal, saw the police searching along the road. After the police abandoned their search, Mr. Vestal searched the bushes himself and found a white plastic bag, approximately five inches wide and eight inches long, wrapped with duct tape, which he took into his home. He later observed several people, not police officers, searching the same bushes. Mr. Vestal telephoned Officer Roger Smith who drove to Mr. Vestal\u2019s house and retrieved the package. The SBI lab later determined that the bag contained 990.3 grams of cocaine.\nThe defendant was indicted for trafficking in cocaine by transporting more than 400 grams of cocaine and trafficking in cocaine by possessing more than 400 grams of cocaine. At trial, the defense rested without presenting any evidence and the defendant\u2019s motion to dismiss due to insufficient evidence was denied. A jury convicted the defendant of two counts of trafficking in more than 400 grams of cocaine, as charged. The defendant appeals from that judgment.\nThe issues before this Court are: (I) Whether the trial court erred in denying defendant\u2019s motion to dismiss based upon the insufficiency of the evidence, (II) Whether the trial court erred by failing to instruct the jury on the lesser included offense of possession of cocaine, and (III) Whether the defendant was denied his right to due process by the prosecutor\u2019s comments during closing argument. We find no prejudicial error.\nI.\nDefendant first contends the trial court erred in denying his motion to dismiss based upon the insufficiency of the evidence. In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, and allow the State the benefit of every reasonable inference. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The State must offer substantial evidence of defendant\u2019s guilt on every essential element of the crime charged. Id. \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Id.\nThe defendant was charged with drug trafficking by possessing more than 400 grams of cocaine and drug trafficking by transporting more than 400 grams of cocaine. Under N.C. Gen. Stat. \u00a7 90-95(h)(3) (1993), a person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine commits the felony of trafficking in cocaine. It is a Class D felony if the quantity of cocaine is 400 grams or more. N.C.G.S. \u00a7 90-95(h)(3). Defendant maintains that the evidence was insufficient to show that he either possessed or transported the cocaine recovered by the police.\nA conviction for trafficking in cocaine by possession requires that the State prove either actual or constructive possession. See State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Constructive possession occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the substance. State v. Givens, 95 N.C. App. 72, 76, 381 S.E.2d 869, 871 (1989).\nIn the subject case, the evidence showed that Officer Cave observed the defendant throw an object into the bushes when the car in which he was a passenger was stopped by the police. Mr. Vestal, defendant\u2019s neighbor, discovered a bag, which matched the description given by Officer Cave, in the bushes approximately ten feet from where defendant had stopped and gotten out of the car. This bag was later determined by the SBI lab to contain 990.3 grams of cocaine. Considering this evidence in the light most favorable to the State, a reasonable mind could rationally conclude that the defendant possessed the cocaine.\nA conviction for trafficking in cocaine by transportation requires that the State show a \u201csubstantial movement.\u201d State v. Greenidge, 102 N.C. App. 447, 451, 402 S.E.2d 639, 641 (1991). Determining whether there has been a \u201csubstantial movement\u201d involves a consideration of all the circumstances surrounding the movement, including its purpose and the characteristics of the areas involved. Id.\nIn this case, the evidence showed that while Officer Cave was waiting for back-up, defendant entered his house and remained for approximately 30 seconds. The evidence also showed that after the police left the area, several non-law enforcement individuals were seen by Mr. Vestal searching the bushes where the defendant had thrown the package. A reasonable mind could conclude that when the defendant entered his house, he gave instructions to the occupants to retrieve the cocaine from the bushes after the police left. A reasonable mind could further conclude that there was a \u201csubstantial movement\u201d of the cocaine when the defendant threw the cocaine into the bushes thus avoiding being caught with the cocaine and making it possible to later retrieve it for his subsequent use and benefit.\nSince there was substantial evidence of each element of the offense when considered in the light most favorable to the State, the trial court properly denied the motion to dismiss and submitted the charge to the jury.\nII.\nDefendant next contends the trial court erred by failing to instruct the jury on the lesser included offense of possession of cocaine. The trial court must instruct the jury regarding a lesser included offense when \u201cthe evidence would permit a jury rationally to find [the accused] guilty of the lesser offense and acquit him of the greater.\u201d State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983) (quoting Beck v. Alabama, 447 U.S. 625, 635, 65 L. Ed. 2d 392, 401 (1980)). Trafficking in cocaine by possession requires the possession of at least 28 grams of cocaine. N.C.G.S. \u00a7 90-95(h)(3). Possession of cocaine is a lesser included offense of trafficking in cocaine. See State v. King, 99 N.C. App. 283, 289, 393 S.E.2d 152, 156 (1990).\nThe evidence presented in this case indicated that the white bag recovered from the bushes contained 990.3 grams of cocaine. This evidence was uncontradicted. Since the quantity of cocaine in the bag was not in dispute, the only question for the jury to resolve was whether the defendant had possessed that bag. Therefore, the trial court was correct in refusing to instruct the jury on the lesser included offense of possession.\nIII.\nDefendant also contends he was denied his right to due process by the prosecutor\u2019s comments during closing argument. During closing argument, the prosecutor stated, \u201c[a]Iso please take note that people who can tell us most about this, they didn\u2019t have them brought in. You haven\u2019t heard from the defendant\u2019s wife, Adrian Wilder.\u201d The defendant\u2019s objection was overruled. The prosecutor went on to say, \u201cMs. Wilder is here in the courtroom. You didn\u2019t hear from them. You didn\u2019t hear from anyone.\u201d The defendant again objected and the judge sustained the objection saying:\nThe jury is to disregard the argument of counsel for the state that you did not hear it from anyone. The Court rules counsel\u2019s remarks are improper comment on the defendant\u2019s right not to testify. The defendant in this case has not testified. The law of North Carolina gives him this privilege. The same law also assures him his decision not to testify creates no presumption against him. Therefore, his silence is not to influence your decision in any way.\nWhile it is constitutionally impermissible for a prosecutor to comment on the failure of a defendant to testify at trial, \u201cit is permissible for the prosecutor to bring to the jury\u2019s attention \u2018a defendant\u2019s failure to produce exculpatory evidence or to contradict evidence presented by the State.\u2019 \u201d State v. Williams, 341 N.C. 1, 13, 459 S.E.2d 208, 216 (1995) (citations omitted), cert. denied, 133 L. Ed. 2d 870 (1996). In this case, the trial court properly sustained the defendant\u2019s objections and gave adequate curative instructions to the jury when the prosecutor\u2019s remarks implicated the defendant\u2019s right not to testify. The prosecutor\u2019s comments regarding the failure of the defendant to call certain witnesses were permissibly directed toward the defendant\u2019s failure to offer evidence to rebut the State\u2019s case and not toward the defendant\u2019s failure to testify. See Williams, 341 at 14, 459 S.E.2d at 216. Therefore, the trial court properly overruled the defendant\u2019s objections.\nAlthough the defendant did not object at trial, he also assigns as error the following remarks by the prosecutor during closing argument:\nNow, ladies and gentlemen of the jury, you know, when you walk into this courtroom and you hear a defendant plead not guilty what do you automatically think? I remember the first time I walked in a courtroom and a defendant did that. Hair stood up on the back of my neck and I said, the man said he didn\u2019t do it. You have a right to know this. And the defense counsel has pointed this out to you. And I\u2019m sure they will again. This defendant has the right to presumption of innocence. You have a right to understand what that really means. There are two ways you plead not guilty in this country. One of them is you say, I didn\u2019t do it. But there\u2019s another way the. [sic] [o]ther way says, let\u2019s see if the people of the State of North Carolina can prove I did it. Unless and until they can turn through all the hoops, jump though all the hurdles, do all the things that need to be done, I\u2019m still presumed innocent. He has a right to that. But you have a right to know which way is this defendant going. Ask yourselves back in the jury room, which way is this defendant going? Is he really saying, I didn\u2019t do it, or is he saying, can the State of North Carolina prove it?\nTo properly preserve for appeal an alleged error in the prosecutor\u2019s closing argument to the jury, an objection should be made before the verdict. State v. Sanders, 327 N.C. 319, 342, 359 S.E.2d 412, 427 (1990), cert. denied, 498 U.S. 1051, 112 L. Ed. 2d 782 (1991). \u201cIn the absence of such objection, [the appellate court] will review the prosecutor\u2019s argument to determine only whether it was so grossly improper that the trial court abused its discretion in failing to intervene ex mero mo tu to correct the error.\u201d Id. (quoting State v. Allen, 323 N.C. 208, 226, 372 S.E.2d 855, 865 (1988)).\nIn this case, the prosecutor\u2019s remarks were clearly improper in that they implied that by pleading not guilty in order to put the State to its burden of proving the charge against him, the defendant was really guilty. Such an argument undermines the presumption of innocence which the defendant is guaranteed. Therefore, we must determine whether, considering all the circumstances, the prosecutor\u2019s argument rose to the level of gross impropriety.\nIn State v. Corbin, 48 N.C. App. 194, 198, 268 S.E.2d 260, 263, disc. review denied, 301 N.C. 97, 273 S.E.2d 301 (1980), this Court found that a prosecutor\u2019s argument to the jury that a juror could not believe a person was guilty without also believing it beyond a reasonable doubt, was an erroneous statement of the law, and was improper. However, this Court held that since the trial court properly instructed the jury as to reasonable doubt, the error was not so prejudicial as to require a new trial. Id. In State v. Hardy, 299 N.C. 445, 453, 263 S.E.2d 711, 717 (1980), the Supreme Court held that a prosecutor\u2019s remark during closing argument which implied that the defendant had to prove his innocence, was not \u201cso extreme or clearly calculated to prejudice the jury so that the trial judge should have ex mero mo tu instructed the jury to disregard the remark.\u201d The Court went on to note that:\nWhatever error there may have been, it was cured when the trial judge instructed the jury during his charge at the close of the final arguments that the jury was to understand and apply the law as the judge gave it to them. He then immediately, completely and accurately instructed the jury regarding the defendant\u2019s presumption of innocence.\nId. at 453-54, 263 S.E.2d at 717.\nIn the case before us, the prosecutor twice noted during closing arguments that the defendant was entitled to a presumption of innocence. More importantly, after closing arguments the trial court properly instructed the jury on the law regarding reasonable doubt, presumption of innocence, and a plea of not guilty. Considering all the circumstances, we find that the prosecutor\u2019s argument, while admittedly improper, did not rise to the level of gross impropriety. Accordingly, we find no prejudicial error.\nNo error.\nJudges JOHNSON and LEWIS concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
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    "attorneys": [
      "Michael F Easley, Attorney General, by Robin R Pendergraft, Special Deputy Attorney General, for the State.",
      "\u25a0Malcolm Ray Hunter, Jr., Appellate Defender, by Constance H. Everhart, Assistant Appellate Defender, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CEDRICK L. WILDER\nNo. COA95-1227\n(Filed 15 October 1996)\n1. Narcotics, Controlled Substances, and Paraphernalia \u00a7 141 (NCI4th)\u2014 trafficking in cocaine \u2014 constructive possession \u2014 substantial movement\nThe trial court did not err by denying defendant\u2019s motion to dismiss charges of trafficking in cocaine for insufficient evidence where the evidence showed that an officer observed defendant throw an object into bushes when the car in which he was a passenger was stopped by the police; defendant entered his house and remained for approximately 30 seconds while the officer was waiting for backup; several non-law enforcement individuals were seen searching the bushes where defendant had thrown the package after the police left the area; defendant\u2019s neighbor discovered a bag which matched the description given by an officer approximately ten feet from where defendant had stopped and gotten out of the car; and the bag was later determined by the SBI lab to contain 990.3 grams of cocaine. A reasonable mind could rationally conclude that defendant possessed the cocaine, that he gave instructions to the occupants of his house to retrieve it after the police left, and that there was a substantial movement of the cocaine when defendant threw it into the bushes, thus avoiding being caught with the cocaine and making it possible to later retrieve it.\nAm Jur 2d, Drugs and Controlled Substances \u00a7 188.\n2. Narcotics, Controlled Substances, and Paraphernalia \u00a7 196 (NCI4th)\u2014 trafficking in cocaine by possession \u2014amount not in dispute \u2014 no charge on lesser offense of possession\nThe trial court did not err in a prosecution for trafficking in cocaine by not instructing the jury on the lesser included offense of possession of cocaine. Trafficking in cocaine by possession requires the possession of at least 28 grams; the uncontradicted evidence here indicated that the bag recovered from the bushes contained 990.3 grams. The only question for the jury was whether defendant had possessed the bag.\nAm Jur 2d, Drugs and Controlled Substances \u00a7 188.\n3. Criminal Law \u00a7 429 (NCI4th Rev.)\u2014 trafficking in cocaine \u2014 prosecutor\u2019s argument \u2014 defendant\u2019s failure to offer evidence\nDefendant\u2019s right to due process in a cocaine trafficking prosecution was not denied where defendant did not present evidence and the prosecutor argued that the people who could have told the jury the most about the case did not testify. The trial court properly sustained defendant\u2019s objections and gave adequate curative instructions when the prosecutor\u2019s remarks implicated the defendant\u2019s right not to testify, and the prosecutor\u2019s comments regarding the failure of the defendant to call certain witnesses were permissibly directed toward the defendant\u2019s failure to offer evidence to rebut the State\u2019s case and not toward the defendant\u2019s failure to testify.\nAm Jur 2d, Trial \u00a7\u00a7 705, 707, 709.\n4. Criminal Law \u00a7 475 (NCI4th Rev.)\u2014 trafficking in cocaine \u2014 prosecutor\u2019s argument \u2014 comment on not guilty plea\nThe prosecutor\u2019s closing argument in a prosecution for trafficking in cocaine did not rise to the level of gross impropriety where the prosecutor\u2019s remarks were clearly improper in that they implied that by pleading not guilty in order to put the State to its burden of proving the charge against him, the defendant was really guilty. However, the prosecutor twice noted during closing arguments that defendant was entitled to a presumption of innocence and the trial court after closing arguments properly instructed the jury on the law regarding reasonable doubt, presumption of innocence, and a plea of not guilty.\nAm Jur 2d, Trial \u00a7\u00a7 554 et seq.\nAppeal by defendant from judgment entered 29 June 1995 by Judge Jerry Cash Martin in Surry County Superior Court. Heard in the Court of Appeals 20 August 1996.\nMichael F Easley, Attorney General, by Robin R Pendergraft, Special Deputy Attorney General, for the State.\n\u25a0Malcolm Ray Hunter, Jr., Appellate Defender, by Constance H. Everhart, Assistant Appellate Defender, for defendant-appellant."
  },
  "file_name": "0136-01",
  "first_page_order": 174,
  "last_page_order": 181
}
