Converted WP file 070438-1

Appeal by defendant from judgments entered 20 September 2006 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.

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, to produce an operator's license and vehicle registration. 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 Crocker also smelled the odor of burnt marijuana. Deputy Crocker asked defendant to step out of the vehicle. 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. Defendant responded that it was a microwave oven. The deputy asked defendant for permission to open the package. 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. The dog alerted to the presence of narcotics in each box. Deputy Crocker advised defendant that he was opening the boxes. 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. The officers apprehended and handcuffed defendant. They looked inside the buckets and found two cellophane-wrapped packets containing green vegetable 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:
        Remember 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 bethe 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. It was not directed at defendant's failure to testify. 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 defendant 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 (8^th 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 . . . .” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). 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).

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