Appeal by defendant from judgment entered 8 September 2005 by
Judge Michael E. Helms in Guilford County Superior Court. Heard in
the Court of Appeals 16 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Scott A. Conklin, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Defendant Levon Toby Ezekiel appeals his convictions for
felony possession of cocaine and having attained habitual felon
status. On appeal, defendant argues that the trial court erred by:
(1) denying his motion to dismiss for lack of evidence that he
possessed cocaine; (2) permitting the State's attorney, during
closing arguments, to reference defendant's failure to present
exculpatory evidence; and (3) improperly instructing the jury on
the issue of reasonable doubt. We find defendant's arguments
unpersuasive and, therefore, hold that there was no error in his
The State's evidence at trial tended to show the following
facts. On the morning of 26 March 2004, Officers Chris Martin and
Erich Crouch, probation officers with the North Carolina Division
of Community Corrections, were attempting to find a woman who was
on probation. They observed defendant, whom they recognized,
leaving a convenience store. After making eye contact with the
officers, defendant got into a vehicle driven by an elderly black
male and left the parking lot. The officers were aware that there
was an outstanding order for defendant's arrest for failure to
appear in court on a probation violation.
After confirming with their supervisor that the warrant was
still outstanding, the officers followed the vehicle containing
defendant for several blocks. From about a car's length away, the
officers saw defendant throw a bag out the passenger-side window.
Officer Crouch, who was riding in the passenger seat, took note of
where the bag fell. The officers, however, continued to follow
defendant. About two blocks later, the car carrying defendant
stopped, and defendant jumped out and started running. Officer
Crouch chased defendant on foot until defendant was out of sight.
The officers drove to the next block to see if they could find
defendant, but they were unsuccessful.
The officers immediately returned to the area where they had
seen defendant throw the bag from the car. Officer Crouch
testified that five minutes or less had elapsed since defendant had
thrown the bag. When they reached the location, they found a smallbrown package "like a balled piece of paper." Inside the package
was a white rock-like substance, broken up into little chips that
was later identified as cocaine. Both officers saw no one nearby
when the bag was thrown and observed only one person sitting on a
front porch several houses away when they returned to the location.
Defendant was indicted for possession of cocaine, misdemeanor
resisting a public officer, and attaining the status of habitual
felon. At trial, the court dismissed the charge of misdemeanor
resisting a public officer, but the jury found defendant guilty of
possession of cocaine and of being a habitual felon. The trial
court sentenced defendant as a habitual felon to a term of 100 to
129 months imprisonment. Defendant timely appealed to this Court.
Defendant first argues that the trial court erred by denying
his motion to dismiss because, according to defendant, the State
failed to present evidence that defendant possessed the cocaine
found by the officers on the side of the road. A defendant's
motion to dismiss should be denied if there is substantial
evidence: (1) of each essential element of the offense charged and
(2) of defendant's being the perpetrator of the offense. State v.
, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial
evidence is that amount of relevant evidence necessary to persuade
a rational juror to accept a conclusion. Id.
at 597, 573 S.E.2d at
869. On review of a denial of a motion to dismiss, this Court must
view the evidence in the light most favorable to the State, giving
the State the benefit of all reasonable inferences. Id.
at 596,573 S.E.2d at 869. Contradictions and discrepancies do not warrant
dismissal of the case, but, rather, are for the jury to resolve.
"An accused's possession of narcotics may be actual or
constructive. He has possession of the contraband material within
the meaning of the law when he has both the power and intent to
control its disposition or use." State v. Harvey
, 281 N.C. 1, 12,
187 S.E.2d 706, 714 (1972). In the present case, both Officer
Martin and Officer Crouch testified that they saw defendant throw
the bag from the car and observed where it landed. When they
returned a few minutes later, the officers found a bag containing
cocaine that Officer Crouch stated at trial was the "same identical
package" he had seen defendant throw from the vehicle. At the time
the officers recovered the bag, "the street was empty" and "no one
Construed in the light most favorable to the State, this is
sufficient evidence from which a jury could rationally conclude
that defendant had actual possession of the cocaine prior to
throwing it out the car window. See State v. Wilder
, 124 N.C. App.
136, 140, 476 S.E.2d 394, 397 (1996) (sufficient evidence of
possession existed when officer observed defendant throw a bag into
some bushes, defendant's neighbor found a bag matching the
officer's description in those bushes the following day, and the
bag contained cocaine). Accordingly, this assignment of error is
Defendant next argues that the State improperly commented on
his failure to testify at trial. Specifically, defendant points to
the following statements made by the prosecutor during closing
All of the evidence in this case shows
that the defendant is guilty. He did not put
on any exculpatory evidence, did not put on
any evidence to contradict the State's
evidence, did not put on any evidence showing
an alibi, that he was anywhere else other than
that Dodge Stratus throwing [the bag of
cocaine] out of the passenger window.
[Defense counsel] may argue to you the
State shouldn't argue that, I'm trying to
shift the burden of proof to the defendant by
saying he didn't put on exculpatory evidence
or evidence of an alibi. According to our
law, ladies and gentlemen, our Supreme Court,
your Supreme Court says we can argue that.
Defense counsel's timely objection was overruled. Defendant
contends that these statements, as well as the trial court's
failure to give a curative instruction, constituted prejudicial
error entitling him to a new trial.
"[A] prosecution's argument which clearly suggests that a
defendant has failed to testify is error." State v. Reid
, 334 N.C.
551, 555, 434 S.E.2d 193, 196 (1993). Nevertheless, "[t]he
prosecution may comment on a defendant's failure to produce
witnesses or exculpatory evidence to contradict or refute evidence
presented by the State." Id.
Here, the prosecutor's statements
were directed solely toward defendant's failure to offer evidence
to rebut the State's case and no reference was made to defendant's
failure to take the stand. Consequently, the prosecutor'sstatements were not improper. See State v. Erlewine
, 328 N.C. 626,
633, 403 S.E.2d 280, 284 (1991) ("The record shows that the
prosecutors never commented directly on the defendant's failure to
testify or suggested that the defendant should have or even could
have taken the witness stand. Thus, the prosecutors' arguments
were fair and proper commentary on the defendant's failure to
present any evidence."). This assignment of error is overruled.
Finally, defendant contends that the trial judge improperly
instructed the jury regarding reasonable doubt.
(See footnote 1)
The trial judge
gave the following instruction:
A reasonable doubt, members of the jury,
means exactly what it says. It is not a mere
possible doubt, or an academic or a forced
doubt, because there are few things in human
experience which are beyond a shadow of a
doubt or which are beyond all doubt. Nor is
it a doubt suggested by the ingenuity of
counsel or even by the ingenuity of your own
mind not legitimately warranted by the
evidence and the testimony here in this case.
Of course, your reason and your common sense
would tell you that a doubt would not be
reasonable if it was founded by or suggested
by any of these types of considerations.
A reasonable doubt is a doubt based on
reason and common sense, arising out of some
or all of the evidence that has been presentedor the lack or insufficiency of the evidence,
as the case may be. Proof beyond a reasonable
doubt is proof that fully satisfies or
entirely convinces you of the defendant's
We first address defendant's contention that this instruction
"unconstitutionally lowered" the State's burden of proof under Cage
, 498 U.S. 39, 112 L. Ed. 2d 339, 111 S. Ct. 328
(1990), overruled on other grounds by Estelle v. McGuire
, 502 U.S.
62, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991). In Cage
, the Supreme
Court found reversible error when a trial court's jury instruction
equated reasonable doubt with a "grave uncertainty" and "actual
substantial doubt," and permitted conviction on the basis of merely
a "moral certainty" as to guilt. Id.
at 41, 112 L. Ed. 2d at 342,
111 S. Ct. at 329. As the challenged instruction in the present
case includes none of this terminology, we find Cage
See State v. Wills
, 110 N.C. App. 206, 215, 429 S.E.2d 376, 381
"sufficiently distinguishable" when jury charge did
not include any of the offensive terms found in Cage
), disc. review
, 334 N.C. 438, 433 S.E.2d 184 (1993).
Defendant argues that, even if the challenged instruction did
not unconstitutionally lower the State's burden of proof, it
"mudd[ied] the standard." We note, however, that the second
paragraph of the trial court's instruction has previously been
found to pass constitutional muster by our Supreme Court. State v.
, 341 N.C. 316, 356, 462 S.E.2d 191, 214 (1995), cert.
, 516 U.S. 1161, 134 L. Ed. 2d 194, 116 S. Ct. 1048 (1996).
With respect to the first paragraph, our Supreme Court foundno error in an instruction substantially similar, holding:
that the judge overdefined
reasonable doubt, it appears nevertheless that
he did give equal stress to the affirmative
aspects of the definition. We cannot believe
that the jury was misled or confused.
State v. Ward
, 286 N.C. 304, 310, 210 S.E.2d 407, 412 (1974),
vacated in part on other grounds
, 428 U.S. 903, 49 L. Ed. 2d 1207,
96 S. Ct. 3206 (1976). As in Ward
, the trial judge, in this case,
provided equal attention to both what a reasonable doubt is
as what it is not
. We find Ward
controlling. This assignment of
error is, therefore, overruled. See also Wills
, 110 N.C. App. at
214-16, 429 S.E.2d at 380-81 (finding no error in a similar
instruction that defined reasonable doubt both in terms of what it
is and what it is not).
As defendant's remaining assignments of error have not been
brought forth in his brief, they are deemed abandoned. N.C.R. App.
P. 28(b)(6). See State v. Canellas
, 164 N.C. App. 775, 777, 596
S.E.2d 889, 890-91 (2004) (assignments of error not presented in
appellant's brief are abandoned).
Judges WYNN and ELMORE concur.
Report per Rule 30(e).