{
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      "STATE OF NORTH CAROLINA v. ALVIN STEVENSON JOHNSON"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nDefendant appeals his convictions for trafficking in cocaine by possession, trafficking in cocaine by transportation, possession with intent to sell or deliver cocaine, and resisting a public officer. Defendant claims that the trial court erroneously denied his motion to dismiss; the trial court erred in failing to intervene ex mero motu during the State\u2019s improper closing argument; and he received ineffective assistance of counsel. We conclude that the trial court did not err in denying defendant\u2019s motion to dismiss, find no error as to the trial court failing to intervene ex mero motu into the State\u2019s closing argument, and dismiss defendant\u2019s claim for ineffective assistance of counsel so that defendant may file a motion for appropriate relief for a full evidentiary hearing to be conducted on the issue.\nI. Background\n1 The State\u2019s evidence tended, to show that around midnight on 26 October 2006, Sergeant Eric Brinkley of the Currituck County Sherriff\u2019s Office was on patrol duty when he recognized a Pontiac vehicle at a 7-Eleven that \u201cdid not have a North Carolina state inspection sticker on the windshield.\u201d Sergeant Brinkley called for backup, followed the vehicle, and \u201cturned [his] blue lights and sirens on[;] the vehicle proceeded to go to the side of the road and then back onto the road again and proceeded] . . . approximately a quarter mile down the road further.\u201d Sergeant Brinkley finally stopped the vehicle which had three males in it. Defendant was the only person in the backseat.\nDeputy Randy Jones arrived at the scene and \u201chis canine [K-9] made a positive alert for the presence of narcotics in th[e] vehicle.\u201d Deputy Jones looked in the vehicle and found \u201ca plastic sandwich baggy with [an] off-white rock-like substance in it\u201d in \u201c[t]he passenger rear seat area floorboard where [defendant\u2019s] feet would be.\u201d Sergeant Brinkley \u201cwent to search\u201d defendant, when he \u201cgot down to around his sock and feet area\u201d he \u201cfelt a lump in [defendant\u2019s] sock that shouldn\u2019t have been there. Something was out of place.\u201d Defendant \u201ctook off running through a field. [Defendant] jumped the ditch that [they] were parked near and went through the field. [Sergeant Brinkley] caught [defendant] about thirty [30] yards into th[e] field.\u201d Sergeant Brinkley tackled defendant and \u201cone of [defendant\u2019s] shoes . . . had come off and right there beside his shoe was a small bag of white powder.\u201d Upon searching defendant, Sergeant Brinkley found \u201ca sandwich baggy with a larger amount of white powder inside of it.\u201d\nDefendant was indicted for trafficking in cocaine by possession (\u201ctrafficking by possession\u201d), trafficking in cocaine by transportation (\u201ctrafficking by transportation\u201d), possession with intent to sell or deliver cocaine (\u201cPWISD\u201d), possession of cocaine, and resisting a public officer. During defendant\u2019s trial, Mr. Robert Hall, the other passenger in the Pontiac vehicle, testified that he had sold defendant the cocaine found in the vehicle and in defendant\u2019s sock \u201cfor [defendant] to sell it.\u201d Mr. Hall further testified that he and defendant had previously \u201csold crack together[.]\u201d After defendant\u2019s trial, the jury found him to be guilty of both trafficking charges, PWISD, and resisting a public officer. The trial court determined defendant had a prior record level of III and sentenced him consecutively to 35 to 42 months imprisonment for each of his trafficking convictions, 10 to 12 months imprisonment for his conviction for PWISD, and 60 days imprisonment for resisting a public officer. Defendant appeals.\nII. Motion to Dismiss\nDefendant first contends that the trial court erred in denying his motion to dismiss the trafficking charges \u201cbecause the evidence was insufficient to establish that he constructively possessed the cocaine found inside the car which was necessary to reach a trafficking weight.\u201d (Original in all caps.)\nThe standard of review for a motion to dismiss is well known. A defendant\u2019s motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant\u2019s being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.\nState v. Johnson, _ N.C. App. _, _, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted). \u201cTo establish trafficking by possession, the State must show that a defendant (1) knowingly possessed a given controlled substance; and (2) that the amount possessed was greater than 28 grams.\u201d State v. Wiggins, 185 N.C. App. 376, 386, 648 S.E.2d 865, 872, disc. review denied, 361 N.C. 703, 653 S.E.2d 160 (2007), disc. review denied, _ N.C. _, 674 S.E.2d 421 (2009). The elements for trafficking by transportation are that defendant \u201c(1) knowingly [transported] a given controlled substance; and (2) that the amount [transported] was greater than 28 grams.\u201d Id; see N.C. Gen. Stat. \u00a7 90-95(h)(3) (2005).\nDefendant argues that\n[ i]n order to prove that [he] possessed a trafficking amount of cocaine, the State had to add the weight of the cocaine found on ... [defendant] to the weight of the cocaine found inside the car. However, the State did not present incriminating circumstances sufficient to establish . . . [defendant]\u2019s intent and capability to maintain dominion and control over the cocaine in the car, thereby establishing that he constructively possessed that cocaine.\nThus, defendant does not contest his possession of the cocaine found near his shoe or found on his person; defendant only contends that the State did not establish that he possessed the cocaine in the vehicle. We disagree.\nPossession can be actual or constructive. When the defendant does not have actual possession, but has the power and intent to control the use or disposition of the substance, he is said to have constructive possession. However, unless the defendant has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.\nState v. Doe, 190 N.C. App. 723, 730, 661 S.E.2d 272, 276 (2008) (citations, quotation marks, and brackets omitted).\nIn Doe,\nRaleigh Police Detective A.H. Pennica (\u201cDetective Pennica\u201d) obtained information from confidential informants that a drug purchase had been arranged with an individual known as \u201cGoyo.\u201d \u201cGoyo\u201d was later identified as Alfredo Lara (\u201cLara\u201d). The drug purchase was scheduled to occur at approximately 9:00 p.m. in the parking lot of the building on 2800 Trawick Road. Lara was to deliver a quarter kilo of cocaine, which equals approximately nine ounces. The informants told Detective Pennica that Lara and a second person would deliver the drugs.\nDetective Pennica drove to the location and parked directly across the street to observe the transaction. Detective Pennica required one informant to stay behind with him to contact the second informant via telephone. The second informant was instructed to approach Lara\u2019s vehicle and to signal to the first informant when he had observed the cocaine. After Detective Pennica received the signal, drug enforcement officers stationed next to the parking lot were ordered to \u201ctakedown\u201d the vehicle. Three subjects, Lara, defendant, and the second informant occupied the vehicle.\nRaleigh Police Sergeant Mike Glendy (\u201cSergeant Glendy\u201d) removed defendant from the front passenger seat, handcuffed and searched his person. Sergeant Glendy found three small bags of cocaine located inside defendant\u2019s front right pocket. Meanwhile, officers searched the vehicle and recovered a small brown paper bag containing nine ounces of cocaine on the floorboard of the back seat near the center console.\nAfter officers had recovered the drugs and secured the scene, defendant and Lara were transported to their residence. Upon arrival, defendant signed a form consenting to a search of his bedroom. Officers discovered six and a half grams of cocaine located inside a cowboy boot inside of defendant\u2019s closet.\nAfter a three day trial, a jury found defendant to be guilty of: (1) trafficking in cocaine by possession; (2) trafficking in cocaine by transportation; (3) conspiracy to traffic in cocaine by possession; (4) possession with intent to sell or deliver cocaine; and (5) maintaining a dwelling for the keeping or selling of controlled substances.\nDoe, 190 N.C. App. at 726-27, 661 S.E.2d at 274-75 (quotation marks omitted). As to defendant\u2019s trafficking in cocaine by possession charge, this Court determined:\ndefendant did not have exclusive possession over the vehicle in which the cocaine was located; therefore other incriminating circumstances must hav\u00e9 been present before defendant could be found to have constructive possession. At trial, Lara testified that: (1) defendant obtained the nine ounces of cocaine recovered from the vehicle from a third-party; (2) the cocaine was located in defendant\u2019s jacket or under the passenger seat where he was sitting prior to police intervention; and (3) defendant presented the cocaine to the confidential informant. Other testimony tended to show nine ounces of cocaine was recovered from the floorboard in the back seat, more toward the passenger side of the floorboard. Viewed in the light most favorable to the State, sufficient evidence was presented for the jury to infer defendant was in constructive possession of the cocaine recovered from the vehicle.\nId. at 730, 661 S.E.2d at 276-77 (citation and quotation marks omitted). This Court went on to state as to defendant\u2019s trafficking in cocaine by transportation charge that\n[transportation is defined as any real carrying about or movement from one place to another. Lara testified that he and defendant often delivered cocaine together because he was the one that knew of the informant. Lara also testified that he and defendant had driven to their residence after work on 2 March 2006, arranged the drug purchase with one of the confidential informants, and later drove to the parking lot where the purchase was to occur with the'cocaine located inside the vehicle. Viewed in the light most favorable to the State, sufficient evidence was presented to submit the charge of trafficking in cocaine by transportation to the jury.\nDoe, 190 N.C. App. at 730-31, 661 S.E.2d at 277 (citation and quotation marks omitted).\nHere, as to the trafficking by possession charge, the \u201cother incriminating circumstances\u201d tend to show that a co-occupant in the vehicle testified that the cocaine belonged to defendant; the cocaine was found in the vehicle \u201cwhere [defendant\u2019s feet would have been[;]\u201d and, cocaine was also found on defendant\u2019s person; we view this evidence to be sufficient to show constructive possession. See id. at 730, 661 S.E.2d at 276-77. As to the trafficking by transportation charge, the \u201cother incriminating circumstances\u201d tend to show that Sergeant Brinkley saw the Pontiac at the 7-Eleven and followed the moving vehicle containing defendant and his cocaine down the road; we also view this as sufficient evidence to establish that defendant transported the cocaine. See id. at 730-31, 661 S.E.2d at 276-77. Accordingly, the trial court did not err in denying defendant\u2019s motion to dismiss the trafficking charges, and this argument is overruled.\nIII. State\u2019s Closing Argument\nDefendant also contends that \u201cthe trial court failed to intervene ex mero motu during the State\u2019s closing argument when the prosecutor disparaged . . . [defendant]^ character by calling him the devil in front of the jury.\u201d (Original in all caps.) \u201cThe standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. \u201d State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).\nDefendant directs this Court\u2019s attention to the prosecutor stating during closing argument, \u201cI submit to you that when you try the devil, you have to go to hell to get your witness.\u201d But in context the prosecutor said,\nThink about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you that when you try the devil, you have to go to hell to get your witness. When you try a drug case, you have to get people who are involved in that world. Clearly the evidence shows that Robert Hall was in that world. He\u2019s an admitted drug dealer and admitted drug user.\nAs our Supreme Court has already stated on this issue, \u201cWe do not believe the district attorney was characterizing [the defendant] as the devil. He used this phrase to illustrate the type of witnesses which were available in a case such as this one.\u201d State v. Willis, 332 N.C. 151, 171, 420 S.E.2d 158, 167 (1992). Just as in Willis, this argument is overruled. See id.\nIV. Ineffective Assistance of Counsel\nDefendant next contends that his \u201ctrial attorney rendered ineffective assistance of counsel per se by admitting . . . [his] guilt to the charge of resisting a public officer during his closing argument without . . . [defendant]\u2019s consent.\u201d (Original in all caps.) During closing arguments defendant\u2019s attorney stated,\nHe\u2019s also charged with resisting, delaying, or obstructing the officer. You\u2019ve heard that they have this dog alert, that that indicates the presence of narcotics. They got . . . [defendant] out of the car. They took him around to the back of the car to conduct a search of his person. And when the officer started getting down to his lower legs, he took off running across the field. He didn\u2019t obey their instructions. They had to tackle him out there and hit him with the flashlights to settle him down.\nWell, that certainly slowed down the officers in the performance of their duties, the elements are there. They were officers of the law. They were discharging a duty of their office. We are not contending they were doing anything unlawful at the time and he didn\u2019t obey. He delayed them. He obstructed them, he resisted them. Once again, I can\u2019t tell you what to do. But I have to submit to you that the Judge is going to tell you if you conclude that he was an officer of the law and he was discharging the lawful duty of his office, this gentlemen without justification was resisting and delaying and obstructing him.\nThe Judge will tell you it\u2019s your duty to return a verdict of guilty of that charge. And once again, I\u2019m not going to insult you or waste your time by trying to convince you otherwise. That would be a ridiculous thing to do.\nOur Supreme Court has stated \u201cthat ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant\u2019s counsel admits the defendant\u2019s guilt to the jury without the defendant\u2019s consent.\u201d State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L.Ed. 2d 672 (1986); see State v. Maready, _ N.C. App. _, _, 695 S.E.2d 771, 775-79 (concluding that the Harbison standard controls in non-capital cases), disc. review denied and appeal dismissed, 364 N.C. 329, 701 S.E.2d 246-47 (2010). In order for defendant to be convicted of resisting a public officer the State must have shown that (1) defendant \u201cwillfully and unlawfully resisted], delay[ed] or obstructed] a public officer in (2) discharging or attempting to discharge a duty of his office[.]\u201d N.C. Gen. Stat. \u00a7 14-223 (2005).\nDefendant\u2019s attorney stated, \u201c[T]he elements are there. They were officers of the law. They were discharging a duty of their office. We are not contending they were doing anything unlawful at the time and he didn\u2019t obey. He delayed them. He obstructed them, he resisted them[;]\u201d such statements cannot be construed in any other light than \u201cadmitting] the defendant\u2019s guilt[.]\u201d Harbison, 315 N.C. 175, 180, 337 S.E.2d at 507-08. However, from the record before us, it is unclear whether defendant consented to the admission of guilt of this offense, which is minor in comparison to his other charges, by his attorney. As such, we dismiss this issue without prejudice in order for defendant to file a motion for appropriate relief so that a full evidentiary hearing may be held on this issue. See Maready, _ N.C. App. at _, 695 S.E.2d at 779-80 (noting this Court had previously remanded the case for an evidentiary hearing regarding the defendant\u2019s consent).\nV. Conclusion\nFor the foregoing reasons, we find no error as to the trial court\u2019s denial of defendant\u2019s motion to dismiss; we find no error as to the trial court\u2019s failure to intervene ex mero mo tu into the State\u2019s closing argument; and we dismiss defendant\u2019s claim for ineffective assistance of counsel, without prejudice to defendant\u2019s right to file a motion for appropriate relief so that an evidentiary hearing may be held to determine whether he consented to his counsel\u2019s admission of guilt to the charge of resisting a public officer.\nNO ERROR in part; DISMISSED in part.\nJudges BRYANT and CALABRIA concur.",
        "type": "majority",
        "author": "STROUD, Judge."
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    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General Brandon L. Truman, for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ALVIN STEVENSON JOHNSON\nNo. COA11-677\n(Filed 20 December 2011)\n1. Drugs \u2014 trafficking\u2014cocaine\u2014constructive possession\nThe trial court did not err by denying defendant\u2019s motion to dismiss the drug trafficking charges. The evidence was sufficient to establish that defendant constructively possessed the cocaine found inside the car.\n2. Criminal Law \u2014 prosecutor\u2019s argument \u2014 defendant the devil\nThe trial court did not err by failing to intervene ex mero motu during the State\u2019s closing argument when the prosecutor called defendant the devil in front of the jury. The prosecutor used this phrase to illustrate the type of witnesses which were available in a case such as this one instead of characterizing defendant as the devil.\n3. Constitutional Law \u2014 effective assistance of counsel\u2014 claim dismissed without prejudice\nDefendant\u2019s claim for ineffective assistance of counsel was dismissed without prejudice to defendant\u2019s right to file a motion for appropriate relief so that an evidentiary hearing may be held to determine whether defendant consented to his counsel\u2019s admission of guilt to the charge of resisting a public officer.\nAppeal by defendant from judgments entered on or about 10 September 2008 by Judge Jerry R. Tillett in Superior Court, Currituck County. Heard in the Court of Appeals 30 November 2011.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Brandon L. Truman, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant."
  },
  "file_name": "0605-01",
  "first_page_order": 615,
  "last_page_order": 623
}
