              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-521

                               Filed: 4 February 2020

Sampson County, No. 16 CRS 243

STATE OF NORTH CAROLINA

             v.

BRANDON ALAN PARKER


      Appeal by defendant from judgment entered 12 June 2018 by Judge Ebern T.

Watson, III in Sampson County Superior Court. Heard in the Court of Appeals 8

January 2020.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Michael
      T. Wood, for the State.

      Michael E. Casterline for defendant-appellant.


      TYSON, Judge.


      Brandon Alan Parker (“Defendant”) appeals from a jury’s verdict convicting

him of possession of a firearm by a felon. We find no error.

                                   I. Background

      Four men from Jacksonville, North Carolina drove to Garland, North Carolina

on the morning of 5 March 2015 intending to purchase marijuana. Michael Harbin

drove his mother’s black Toyota Camry vehicle, with Carlos James and Derrick
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Copeland as passengers. A fourth man followed Harbin, driving a Ford Explorer

vehicle. Copeland had set up the drug purchase from Jafa McKoy in Garland.

       The men arrived in Garland between 10:00 and 10:30 a.m. The driver of the

Explorer parked at a nearby apartment complex and stayed with that vehicle.

Harbin, James, and Copeland drove down a side road to a house located at 90 Sugar

Hill Lane, in an area of Garland with a reputation for drug trafficking. They observed

two men. Copeland recognized McKoy standing in front of the porch, while another

man was observed sitting on the porch. McKoy introduced the other man as “P.”

Neither Copeland nor Harbin knew or had met “P.”

       McKoy told the three men the marijuana was not present, so they went to buy

cigarettes at a nearby gas station. They left the gas station at 11:13 a.m. and

returned to Sugar Hill Lane, after a quick stop at the Explorer. They again saw

McKoy and “P,” but also saw a compact car and a third man, not previously present.

       McKoy told Copeland the marijuana was inside the compact car. Copeland

gestured to Harbin to accompany him and both men started walking towards the

compact car. As they walked, Harbin turned and saw the unknown third man behind

him.

       James was left inside Harbin’s mother’s Camry with its keys. “P” jumped off

the porch holding a revolver and moved towards the Camry. McKoy held a gun,




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turned towards Copeland and Harbin, and shot at them. Copeland and Harbin

escaped by running into the woods, without knowing what had happened to James.

      Copeland and Harbin returned to the Explorer, still parked with its driver at

the nearby apartment complex, and the three men rode back to Sugar Hill Lane

looking for James. They could not find him and returned to the gas station at 11:49

a.m. After trying to contact James by phone and failing to reach him, Harbin called

the police at 12:24 p.m.

      Freddie Stokes, a resident of the house at 90 Sugar Hill Lane, returned home

around 12:30 p.m. He saw a body in his driveway and a parked black vehicle beside

the body. Stokes called the police around 12:33 p.m. The police found James laying

on his back. He had been shot once in the back of the head and was dead. The police

found no money in James’ pockets or in his wallet.

      Police showed Harbin two photographic line-ups of eight photos at the police

station that afternoon. Harbin identified McKoy in the first set of photos. Harbin

was unable to identify a suspect from the second set of photos.

      Copeland’s probation officer showed him a photographic line-up of eight photos

four days after James’ murder on 9 March 2015.            He identified Defendant’s

photograph as a suspect for the man introduced by McKoy as “P” with 85 to 90 percent

confidence. He also identified another man’s photograph as a suspect with 60 percent

confidence.



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      North Carolina State Bureau of Investigation Agent William Brady (“Agent

Brady”) interviewed Defendant nearly two weeks after James’ death on 18 March

2015 at the request of the Sampson County Sheriff’s Office. Defendant was provided

his Miranda rights and initially told Agent Brady he was not present at Sugar Hill

Lane in Garland on 5 March 2015.        Approximately seventeen minutes into the

interview, Defendant admitted he was present at that address on that morning.

Defendant told Agent Brady he had arrived at 90 Sugar Hill Lane, which he called

“the dope hole,” early in the morning, but asserted he had left by 8:30 or 9:00 a.m.

that morning.

      Defendant denied seeing a black car while there but did see a gray car among

several cars with people coming to and going from the area. He denied any knowledge

of the men from Jacksonville or of the drug deal Copeland had arranged with McKoy.

      Defendant also repeatedly denied killing anyone or being present when

someone was killed. At some point during the interview, Defendant admitted to

Agent Brady: “Maybe they saw me on the porch.” Defendant told Agent Brady he

drove north to his cousin’s house in Newton Grove after he had left Sugar Hill Lane.

      Defendant was indicted for first-degree murder, possession of a firearm by a

felon, two counts of assault with a deadly weapon with intent to kill, robbery with a

deadly weapon, two counts of attempted robbery with a deadly weapon, and attaining

habitual felon status.



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      At trial, the State presented testimony from Jane Peterson, who had been

dating Defendant at or about the time of James’ death.           Peterson described

Defendant’s appearance at the time: he “had a beard, cut close” and had a tattoo on

his arm and one on his face.

      During Peterson’s voir dire testimony, while the jury was not present, the trial

court heard arguments about a photograph of Defendant which the State sought to

have admitted for illustrative purposes. The State argued for its admission into

evidence:

             Your Honor, I have just asked Ms. Peterson how Mr.
             Parker appeared back in March of 2015 as opposed to how
             he appears today or any other time, and she’s described
             him as having a beard, tattoos. Your Honor, other
             witnesses have described the man on the porch having a
             beard. A witness testified that he -- the man on the porch
             had a tattoo on his chest. Your Honor, and, as I have said,
             it would illustrate her testimony.

      The State could not specify who took the photograph or when it was taken but

gave the court assurances that Peterson had verified it was a fair and accurate

representation of how Defendant had appeared in March 2015. Defendant objected

on several grounds, including the lack of a proper foundation and that the photograph

was more prejudicial than probative under N.C. R. Evid. 403.

      The trial court conducted a voir dire of Peterson’s testimony and ruled the

photograph would be admissible for illustrative purposes only. The State moved to

admit the evidence upon the jury’s return. Defendant objected and the trial court


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overruled Defendant’s standing objection and admitted the photograph for

illustrative purposes only. The State asked Peterson to show the photograph to the

jury and confirm it was consistent with Defendant’s appearance in March 2015.

      The State obtained a probable cause search warrant for Defendant’s cell phone

records on 18 March 2015. The State tendered and the trial court accepted a Federal

Bureau of Investigation special agent, Michael Sutton (“FBI Agent Sutton”), as an

expert witness on historical cell site analysis and cellular technology. FBI Agent

Sutton testified Defendant’s phone was being used in an area of Garland which

includes Sugar Hill Lane from approximately 8:09 to 9:57 a.m. on 5 March 2015.

From 9:57 to approximately 11:38 a.m., Defendant’s phone was not in use and no

location could be identified.

      Defendant’s phone was once again located by the same cell tower in Garland

at 11:38 a.m., but was then north/northwest of its previous location, towards Clinton.

By 11:49 a.m., Defendant’s phone was located in Clinton, not Newton Grove. FBI

Agent Sutton testified he did not analyze Defendant’s cell site records past 11:49 a.m.

      Defendant moved to dismiss all charges for insufficiency of the evidence at the

close of the State’s presentation of its case. The trial court found the State had

presented insufficient evidence tending to show Defendant possessed the specific

intent to kill under a theory of acting in concert and dismissed the counts of assault

with a deadly weapon with intent to kill. The trial court denied Defendant’s motion



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to dismiss the remaining charges. Defendant did not testify or present any evidence

at trial.

         The jury found Defendant guilty of possession of a firearm by a felon. The jury

found Defendant not guilty of the remaining charges. Defendant stipulated and pled

guilty to attaining habitual felon status. The trial court determined Defendant was

a Prior Record Level V offender and sentenced Defendant as a habitual felon to an

active term of 105 to 138 months in prison. Defendant gave notice of appeal in open

court.

                                     II. Jurisdiction

         This Court possesses jurisdiction over Defendant’s appeal from judgment as a

matter of right pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2019).

                                        III. Issues

         Defendant argues the trial court erred by denying his motion to dismiss the

charge of possession of a firearm by a felon for insufficient evidence. Defendant also

argues the State misrepresented evidence before the trial court and made false and

misleading statements to the jury during closing arguments, which deprived him of

a fair trial.

                                  IV. Motion to Dismiss

                                  A. Standard of Review

                The standard for ruling on a motion to dismiss is whether
                there is substantial evidence (1) of each essential element


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             of the offense charged and (2) that defendant is the
             perpetrator of the offense. Substantial evidence is relevant
             evidence which a reasonable mind might accept as
             adequate to support a conclusion. In ruling on a motion to
             dismiss, the trial court must consider all of the evidence in
             the light most favorable to the State, and the State is
             entitled to all reasonable inferences which may be drawn
             from the evidence.

State v. Weakley, 176 N.C. App. 642, 651, 627 S.E.2d 315, 321 (2006) (citation

omitted).

                                     B. Analysis

      Defendant argues the trial court erred in denying his motion to dismiss all

charges for insufficient evidence. The State’s eyewitnesses did not provide a positive

identification of Defendant at trial. Defendant asserts the other evidence connecting

him to James’ death was circumstantial and insufficient. Viewing the evidence in the

light most favorable to the State, we disagree.

      Defendant argues the State offered insufficient direct evidence, and the State’s

circumstantial evidence raised only conjecture that Defendant was the same man

McKoy had identified as “P.”         This argument discounts the materiality of

circumstantial evidence on a trial court’s ruling on a motion to dismiss and our

standard of review on appeal.

             The test for sufficiency of the evidence is the same whether
             the evidence is direct or circumstantial, or both.
             Circumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence. If a
             reasonable inference of defendant’s guilt may be drawn

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             from the circumstances, then it is for the jury to decide
             whether the facts, taken singly or in combination, satisfy it
             beyond a reasonable doubt that the defendant is actually
             guilty.

State v. McDaniel, 372 N.C. 594, 603-04, 831 S.E.2d 283, 290 (2019) (emphasis

supplied) (citations, alterations, and internal quotation marks omitted).

      Presuming, arguendo, but without deciding the State offered no direct evidence

that Defendant was the man identified by McKoy as “P,” the State’s case survives a

motion to dismiss with sufficient circumstantial evidence to support a reasonable

inference of Defendant’s guilt. See id.

      To support the trial court’s denial of Defendant’s motion to dismiss the

remaining charges, Defendant voluntarily admitted he was present at 90 Sugar Hill

Lane on the morning of James’ death, and that he might have been seen by Copeland,

Harbin, and James on the porch with McKoy. Defendant’s cell phone was located in

Garland near the scene close to the approximate time of the incident.

      Copeland identified Defendant from a photo array as the armed suspect on the

porch and present at the scene with “85 to 90 percent” confidence. Copeland testified

“P” had a “beard, brown skin, [and a] tattoo on the upper cheek,” and estimated he

was about 6’2” tall and weighed about 240 pounds. Harbin testified “P” was wearing

a hat, had a beard, and “was like a burley dude, like a kind of bigger dude.”




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      The State also presented testimony from Jane Peterson, Defendant’s girlfriend

at the time of the incident. She described Defendant’s appearance at the time: he

“had a beard, cut close” and had one tattoo “on his arms and one on his face.”

      Although this evidence may not rule out every hypothesis of Defendant’s

innocence, that is not the State’s burden on Defendant’s motion to dismiss. Id. at

604, 831 S.E.2d at 290. The evidence is sufficient to support a reasonable inference

of Defendant’s guilt, when viewed in the light most favorable to the State. See id.

The trial court correctly ruled the State presented sufficient evidence to submit the

remaining charges to the jury. Defendant’s argument is overruled.

                            V. Prosecutorial Misconduct

      Defendant argues he is entitled to a new trial because prosecutorial

misconduct denied him a fair trial.        Defendant argues the State made false

statements about testimonial evidence on four occasions during the trial: once while

arguing for the admission of the photograph of Defendant for illustrative purposes,

and three times during closing argument.

      Arguing for the admission of the photograph, the prosecution stated, “a witness

testified that he -- the man on the porch had a tattoo on his chest.” Although

Defendant’s girlfriend, Peterson, had just testified to this fact about Defendant, no

witness had testified to this description of “P.” The prosecution mentioned witness’

testimony that “P” had a chest tattoo three more times during closing arguments.



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The prosecution twice attributed this alleged testimony to Copeland, who never

testified that “P” had a chest tattoo.

                        A. Constitutional Right to a Fair Trial

      Our Supreme Court has stated the Fourteenth Amendment to the Constitution

of the United States guarantees that “[e]very person charged with a crime has an

absolute right to a fair trial. . . . It is the duty of both the court and the prosecuting

attorney to see that this right is sustained.” State v. Williams, 362 N.C. 628, 638, 669

S.E.2d 290, 298 (2008) (citation omitted). “The district attorney owes honesty and

fervor to the State and fairness to the defendant in the performance of his duties as

a prosecutor.” State v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290 (1975).

      However, “a constitutional question which is not raised and passed upon in the

trial court will not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106,

112, 286 S.E.2d 535, 539 (1982); see also N.C. R. App. P. 10(a). Defendant did not

raise a constitutional objection to any of the prosecutor’s misstatements that a

witness testified “the man on the porch had a tattoo on his chest.”

      Defendant’s counsel objected to the admissibility of the photograph on multiple

grounds during arguments outside the presence of the jury but made no

constitutional arguments.      Defendant argued the State had not laid a proper

foundation for the photograph, and the danger of prejudice to Defendant by its

admission substantially outweighed its probative value under N.C. R. Evid. 403.



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Defendant’s counsel did not object on any grounds, constitutional or otherwise, to the

prosecutor’s statement to the court outside the presence of the jury that a “witness

testified that . . . the man on the porch had a tattoo on his chest.”

      Defendant failed to object to any statements made during the State’s closing

arguments. Defendant’s constitutional argument was not “raised and passed upon

in the trial court” and so we do not consider this asserted basis on appeal. Id. Because

Defendant’s arguments also raise the distinct issue of improper closing arguments,

we proceed to review that issue separately.

                                 B. Closing Argument

                                 1. Standard of Review

             The 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. In other words,
             the reviewing court must determine whether the argument
             in question strayed far enough from the parameters of
             propriety that the trial court, in order to protect the rights
             of the parties and the sanctity of the proceedings, should
             have intervened on its own accord and: (1) precluded other
             similar remarks from the offending attorney; and/or (2)
             instructed the jury to disregard the improper comments
             already made.

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted).

Prosecutors’ arguments must be devoid of appeals to passion or prejudice. Id. at 135,

558 S.E.2d at 108.



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      Our Supreme Court also cautioned that an appellate court should “not review

the exercise of this discretion unless there be such gross impropriety in the argument

as would be likely to influence the verdict of the jury.” State v. Covington, 290 N.C.

313, 328, 226 S.E.2d 629, 640 (1976). “[F]or an inappropriate prosecutorial comment

to justify a new trial, it must be sufficiently grave that it is prejudicial error.” State

v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88 (1992) (citation and internal

quotation marks omitted).

                                       2. Analysis

             In North Carolina it is well settled that counsel is allowed
             wide latitude in the argument to the jury. Even so, counsel
             may not, by argument or cross-examination, place before
             the jury incompetent and prejudicial matters by injecting
             his own knowledge, beliefs, and personal opinions not
             supported by the evidence. A prosecutor must present the
             State’s case vigorously while at the same time guarding
             against statements which might prejudice the defendant’s
             right to a fair trial.

State v. Hill, 311 N.C. 465, 472-73, 319 S.E.2d 163, 168 (1984) (citations and internal

quotation marks omitted).

      Later that year after the opinion in Hill was filed, our Supreme Court in State

v. Huffstetler further expounded: “Arguments of counsel are largely in the control and

discretion of the trial court. The appellate courts ordinarily will not review the

exercise of that discretion unless the impropriety of counsel’s remarks is extreme and

is clearly calculated to prejudice the jury.” State v. Huffstetler, 312 N.C. 92, 111, 322

S.E.2d 110, 122 (1984).

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                                  Opinion of the Court



      “The prosecuting attorney should use every honorable means to secure a

conviction, but it is his duty to exercise proper restraint so as to avoid misconduct,

unfair methods or overzealous partisanship which would result in taking unfair

advantage of the accused.” State v. Holmes, 296 N.C. 47, 50, 249 S.E.2d 380, 382

(1978).

      If Defendant or his counsel believes the State’s argument is improper, they are

obliged to speak and object to preserve the error for appellate review. Our Supreme

Court cautioned:

             When [a] defendant does not object to comments made by
             the prosecutor during closing arguments, only an extreme
             impropriety on the part of the prosecutor will compel this
             Court to hold that the trial judge abused his discretion in
             not recognizing and correcting ex mero motu an argument
             that defense counsel apparently did not believe was
             prejudicial when originally spoken.

State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996).

      Here, the State argued to the jury on three occasions during closing arguments

that eyewitness testimony described “P” as having a chest tattoo, when the only

testimony at trial about a chest tattoo had been in reference to Defendant. Defendant

argues the State’s case was “exceedingly thin” and was based solely on Copeland’s

and Harbin’s identifications of Defendant as “P.” As such, Defendant asserts these

three misstatements rise to the level of prejudicial error to award a new trial.

      Defendant correctly quotes the State’s closing argument as stating the “bottom

line in this case” was: “Who is the man on the porch?” Defendant has not carried the

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burden of showing the repeated, mistaken invocation of supposed eyewitness

testimony that “P” had a chest tattoo was so grossly improper “as would be likely to

influence the verdict of the jury.” Covington, 290 N.C. at 328, 226 S.E.2d at 640. The

chest tattoo was not the sole characteristic the State relied on to identify Defendant

as “P.” The eyewitness testimony describing “P” was also consistent with Defendant’s

height, frame, skin color, beard, and other tattoos. The State’s misstatements may

have given the jury greater confidence in identifying Defendant as “P,” but Defendant

has failed to show that the jury would have reached a different verdict without the

three misstatements.

      As noted, the prosecution’s comments erroneously summarized the evidence

and were improper. However, Defendant has also failed to show the remarks were

so grossly or extremely improper for us to conclude the trial judge “abused his

discretion in not recognizing and correcting ex mero motu an argument that defense

counsel apparently did not believe was prejudicial when originally spoken.”

Richardson, 342 N.C. at 786, 467 S.E.2d at 693.          Defendant’s arguments are

overruled.

                                   VI. Conclusion

      When viewed in the light most favorable to the State, including the reasonable

inferences thereon, the State presented sufficient evidence for all the remaining

charges including possession of a firearm by a felon to be submitted to the jury. The



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trial court properly denied Defendant’s motion to dismiss the charges submitted to

the jury.

      Defendant failed to raise a constitutional question or object at trial with

respect to the prosecution’s misstatements about eyewitness testimony. Without

objection from Defendant, the State’s closing argument was not prejudicial error to

award a new trial. Defendant has also failed to show any error in the trial court’s

discretionary and asserted failure to intervene ex mero motu.

      Defendant received a fair trial, free from prejudicial errors he preserved and

argued. We find no prejudicial error in the jury’s verdict or in the judgment entered

thereon. It is so ordered.

      NO ERROR.

      Judges DILLON and MURPHY concur.




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