An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1219
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                      Buncombe County
                                              No. 11 CRS 64718
JOHN BURTON EDMONDS, JR.



      Appeal by defendant from judgment entered 20 May 2013 by

Judge Marvin P. Pope in Buncombe County Superior Court.                       Heard

in the Court of Appeals 18 March 2014.


      Attorney General Roy Cooper, by Special                   Deputy     Attorney
      General Adren L. Harris, for the State.

      Russell J. Hollers III for defendant-appellant.


      BRYANT, Judge.


      Where defendant cannot establish that he was prejudiced by

trial counsel’s failure to renew a pre-trial objection to the

admission      of   hydrocodone     pills    into    evidence     during    trial,

defendant cannot establish ineffective assistance of counsel.

      On   5   March   2012,    a   grand    jury   indicted     defendant     John

Burton Edmonds, Jr., on the charge of trafficking in opium or

heroin.     On 29 April 2013, defendant filed a motion to suppress
                                           -2-
the admission of hydrocodone tablets seized during a search of

an automobile incident to defendant’s arrest on charges of armed

robbery and conspiracy to commit armed robbery.                  The matter came

on for hearing before the Honorable Judge Mark E. Powell.                         On 6

May 2013, the court entered an order denying defendant’s motion

to suppress.

    Defendant’s trial commenced during the 13 May 2013 criminal

session of Buncombe County Superior Court, the Honorable Marvin

P. Pope, Judge presiding.            The prosecution called as a witness

Detective     Sergeant      John     Thomas,     with    the    Buncombe     County

Sheriff’s Office, Criminal Investigation Division.                         Detective

Thomas testified that on 23 December 2011, he and other law

enforcement officers were conducting surveillance on a residence

located at 179 South Liberty Street in Asheville in anticipation

of the issuance of arrest warrants for defendant and his son.

Detective Thomas observed defendant sitting in the driver’s seat

of a red Jeep Liberty.             When Detective Thomas learned that the

arrest     warrants   had    been     issued,     he     approached    the    Jeep,

identified    himself,      and    asked     defendant    to   step   out    of    the

vehicle.      Defendant was then extracted from the vehicle                        and

placed   in   handcuffs.           After    searching     defendant,       Detective

Thomas   searched     the    vehicle       interior     “incident     to    arrest.”
                                          -3-
Absent objection, Detective Thomas testified that he discovered

in a driver’s side door pocket an open cigarette box containing

twenty yellow tablets.          A forensic drug chemist working in the

drug    chemistry   section     of    the    State    Bureau     of    Investigation

testified as an expert in the field of forensic drug chemistry

analysis.      During     her   direct       examination,        the   trial    court

admitted into evidence the pills taken from defendant’s vehicle.

Each tablet “contained ten milligrams of hydrocodone[,an opium

derivative,] and 325 milligrams of acetaminophen.”                        Together,

the pills weighed 8.5 grams.                The jury returned a verdict of

guilty    against   defendant        on     the   charge    of    trafficking     by

possession of opium, to wit: hydrocodone in excess of 4 grams

but less than 14 grams.              The trial court entered judgment in

accordance with the jury verdict and sentenced defendant to a

term of 70 to 84 months.        Defendant appeals.

                    ____________________________________

       On appeal, defendant argues that the trial court erred in

denying his pre-trial motion to suppress and committed plain

error    in   admitting    into       evidence       the   tablets      taken   from

defendant’s vehicle.          Defendant also argues that he received

ineffective assistance of counsel.                   Because defendant’s first

argument is not properly preserved and his second argument is
                                       -4-
abandoned, we review only defendant’s ineffective assistance of

counsel claim.        However, in reviewing defendant’s ineffective

assistance of counsel claim, we further explain our reasons for

dismissing defendant’s first two arguments.

      Defendant argues that he received ineffective assistance of

counsel when his trial counsel               failed   to renew    during trial

defendant’s      objection    to      the    admission     of    any   testimony

regarding the seizure of the pills, thus, failing to preserve

for   appeal    defendant’s    arguments       presented    in   his   pre-trial

motion to suppress.       We disagree.

      “In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence.”

U.S. CONST. amend. VI.        “A defendant's right to counsel includes

the   right    to   the   effective    assistance     of   counsel.      When   a

defendant attacks his conviction on the basis that counsel was

ineffective, he must show that his counsel's conduct fell below

an objective standard of reasonableness.”                  State v. Braswell,

312 N.C. 553, 561–62, 324 S.E.2d 241, 247–48 (1985) (citations

omitted).

              In order to meet this burden, a defendant
              must satisfy a two-part test:

                        First, the defendant must show that
                    counsel's performance was deficient.
                    This requires showing that counsel made
                                           -5-
                      errors so serious that counsel was not
                      functioning as the “counsel” guaranteed
                      the defendant by the Sixth Amendment.
                      Second, the defendant must show that
                      the deficient performance prejudiced
                      the defense. This requires showing that
                      counsel's errors were so serious as to
                      deprive the defendant of a fair trial,
                      a trial whose result is reliable.

State v. Campbell, 359 N.C. 644, 690, 617 S.E.2d 1, 29 (2005)

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

       On 5 March 2012, defendant was indicted on the charge of

trafficking in opium or heroin.                   On 29 April 2013, defendant

filed a motion to suppress evidence of the pills seized from his

driver side door pocket during a search incident to his arrest.

During a pre-trial hearing on defendant’s motion, testimony was

heard on the events leading up to the discovery of the pills:

On 23 December 2011, law enforcement officers served defendant

with   an     arrest    warrant      charging     him    with    armed    robbery   and

conspiracy to commit armed robbery; Defendant was extracted from

his vehicle and secured in handcuffs;                    Law enforcement officers

then conducted a search of the vehicle interior, discovering the

pills.        Following      the    hearing,     the    court    denied   defendant’s

motion to suppress.

       When    the     matter      came   on   for      trial,   Detective    Thomas,

testifying      for    the    State,      described,       absent   objection,      the
                                         -6-
sequence of events that gave rise to the search of defendant’s

vehicle.       Furthermore, the pills themselves were later admitted,

absent    objection,        as   evidence      during    the     testimony      of   the

forensic drug chemist.             Because defendant failed to note his

objection      to   the    admission    of     the    evidence    seized     from    his

vehicle at trial, the argument presented during his pre-trial

motion to suppress is not preserved for appeal.                          See State v.

Tutt,    171    N.C.      App.   518,   520,    615     S.E.2d    688,    690   (2005)

(Rulings on pretrial motions to suppress “are preliminary in

nature and subject to change at trial, depending on the evidence

offered, and thus an objection to an order granting or denying

the motion is insufficient to preserve for appeal the question

of the admissibility of the evidence.” (citation and quotations

omitted)); see also State v. Golphin, 352 N.C. 364, 405, 533

S.E.2d 168, 198 (2000) (“[The defendant’s] pretrial motion to

suppress is not sufficient to preserve for appeal the question

of the admissibility of his statement because he did not object

at the time the statement was offered into evidence.”).

     In reviewing the record in light of defendant’s ineffective

assistance of counsel claim, we choose to consider first whether

the failure of trial counsel to challenge the admissibility of

the pills into evidence resulted in prejudice to the defense.
                                            -7-
      At trial, Detective Thomas testified that on 23 December

2011,   he   was       conducting       surveillance       on    defendant     when    he

learned that an arrest warrant had been issued for defendant; he

left his position of surveillance and approached defendant who

was   sitting     in    a    red   Jeep    Liberty      SUV     on   the    property   of

defendant’s son.            Detective Thomas identified himself and asked

defendant    to    step      out   of     the   vehicle.        Defendant      was    then

extracted,      laid     face      down    on     the   ground,       and    placed    in

handcuffs.      After searching defendant’s person, Detective Thomas

searched the vehicle “incident to arrest.”

             I began to look there in the driver's door
             panel. The door was open, and the driver's
             door had an interior panel for storage, and
             observed a Marlboro cigarette box inside of
             that door panel. Opened the cigarette box
             up, and inside the cigarette box was the
             cellophane wrapper that is commonly placed
             on the outside of cigarette boxes. And
             contained inside of the wrapper were 20
             yellow in color
             tablets.

The pills contained a mixture of hydrocodone and acetaminophen.

      In the pre-trial motion to suppress, defense counsel made

the following argument:

             Our position is it’s not reasonable to
             inspect a Marlboro box when they’re looking
             for evidence of an armed robbery. The
             officer clearly and reasonably testified
             that you wouldn’t expect to find a gun
             inside the box. That’s what he was looking
                                       -8-
             for, one of the things he was looking for.
             Nobody would expect to find a gun inside
             that box.

Defense counsel’s argument was predicated in part on our Supreme

Court’s opinion in State v. Mbacke, 365 N.C. 403, 721 S.E.2d 218

(2012) (reviewing the holding of the United States Supreme Court

in Arizona v. Gant, 556 U.S. 332 (2009) (addressing whether the

search of a vehicle incident to the seizure of a suspect was

reasonable)), cert. denied, ___ U.S. ___ (2012).

    In Mbacke, the Court cited Gant for the proposition that

“[a] defendant's car can be searched ‘only when the arrestee is

unsecured     and    within   reaching       distance   of    the   passenger

compartment at the time of the search’ or ‘when it is reasonable

to believe evidence relevant to the crime of arrest might be

found   in   the    vehicle.’”   Id.    at   407–08,    721   S.E.2d   at   221

(quoting Gant, 556 U.S. at 343–44) (emphasis added).

             [W]e   conclude   that   the  “reasonable   to
             believe” standard set out in Gant parallels
             the    objective     “reasonable    suspicion”
             standard sufficient to justify a Terry stop.
             See Terry v. Ohio, 392 U.S. 1, 21–22, 88
             S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906
             (1968). . . . Accordingly, we hold that when
             investigators    have    a   reasonable    and
             articulable basis to believe that evidence
             of the offense of arrest might be found in a
             suspect's vehicle after the occupants have
             been removed and secured, the investigators
             are permitted to conduct a search of that
             vehicle.
                                        -9-


Id. at 409–10, 721 S.E.2d at 222.

       “Reasonable    suspicion    is    a    less    demanding      standard     than

probable cause and requires a showing considerably less than

preponderance of the evidence. The standard is satisfied by some

minimal level of objective justification.”                  State v. Styles, 362

N.C.   412,    414,    665   S.E.2d     438,    439       (2008)    (citations    and

quotations omitted).         “We reiterate that the overarching inquiry

when   assessing      reasonable   suspicion         is    always    based   on   the

totality of the circumstances.”              State v. Maready, 362 N.C. 614,

619, 669 S.E.2d 564, 567 (2008) (citation omitted).

       An arrest warrant had been issued and served on defendant

charging him with armed robbery and conspiracy to commit armed

robbery.      We note the testimony of Detective Thomas given during

the suppression hearing:

              Q    And then when you said you were
              planning on searching the car for evidence
              that pertained to the robbery, explain that
              for us.

              A    Well, there could have been any number
              of items in there related to the robbery:
              currency that was stolen, a weapon, clothing
              worn by the suspect, any type of ammunition
              for the firearm that was used. Could be any
              type of documentation, handwritten notes,
              communication back and forth between himself
              and the co-defendant with regards to the
              robbery.
                                        -10-
Because    Detective    Thomas’       search   of      the     vehicle     incident    to

defendant’s arrest was based on the reasonable suspicion that

evidence of the crimes for which defendant was charged, namely

armed robbery and conspiracy to commit armed robbery, may have

been in the vehicle           from which       defendant was extracted, the

search    of   the   vehicle’s        interior      was      not      an   unreasonable

intrusion of defendant’s privacy rights.                       See Mbacke, 365 N.C.

at 407–08, 721 S.E.2d 221 (“[a] defendant's car can be searched

. . . when it is reasonable to believe evidence relevant to the

crime of arrest might be found in the vehicle.” (citation and

quotations omitted)).

    Thus, even if defendant’s challenge to the denial of the

motion to suppress been properly preserved, the record supports

the trial court’s pre-trial ruling and nothing in the record

indicates that the ruling would have changed during the course

of this trial.         As such, defendant was not prejudiced by his

trial    counsel’s    failure    to    renew     his    pre-trial          objection   to

admission of the pills into evidence.

    Further, defendant’s challenge to the admission of the lab

report    on   the   weight    and    composition         of    the    pills   must    be

dismissed.     Defendant fails to demonstrate how the admission of

the pills and the SBI laboratory report into evidence at trial
                                  -11-
amounted to error.    In his brief to this Court, defendant simply

states   that   “[a]dmitting    the   pills   that   should   have   been

suppressed was plain error because it was the difference between

the [S]tate getting its case to the jury and a nonsuit for

insufficient evidence.”        Such a statement is insufficient to

support defendant’s contention.          See N.C. R. App. P. 28(b)(6)

(2014) (“Issues not presented in a party’s brief, or in support

of which no reason or argument is stated, will be taken as

abandoned.”).

    As defendant cannot establish that he received ineffective

assistance of counsel, his argument is overruled.

    No error.

    Judges HUNTER, Robert C., and STEELMAN concur.

    Report per Rule 30(e).
