{ "id": 4115246, "name": "STATE OF NORTH CAROLINA v. GARLAND CHRISTOPHER MITCHELL", "name_abbreviation": "State v. Mitchell", "decision_date": "2012-12-04", "docket_number": "No. COA12-499", "first_page": "171", "last_page": "180", "citations": [ { "type": "official", "cite": "224 N.C. App. 171" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "618 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633895 ], "year": 2005, "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0844-01" ] }, { "cite": "731 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "725 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "694 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0133-01" ] }, { "cite": "681 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "199 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169916 ], "weight": 2, "year": 2009, "opinion_index": 0, "case_paths": [ "/nc-app/199/0001-01" ] }, { "cite": "673 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 8", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150659 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0008-01" ] }, { "cite": "694 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "475", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176674 ], "weight": 5, "year": 2010, "pin_cites": [ { "page": "457" }, { "page": "457" }, { "page": "456-57", "parenthetical": "citation and quotation marks omitted" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0451-01" ] }, { "cite": "173 N.C. App. 344", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353513 ], "year": 2005, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0344-01" ] }, { "cite": "508 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1998, "pin_cites": [ { "page": "318", "parenthetical": "citations omitted" }, { "page": "316" }, { "page": "316-17" }, { "page": "316" }, { "page": "319" }, { "page": "316" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11202004 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "519", "parenthetical": "citations omitted" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0514-01" ] }, { "cite": "718 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "713 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2011, "pin_cites": [ { "page": "561" }, { "page": "562", "parenthetical": "citation and quotation marks omitted; emphasis added" }, { "page": "562" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "678 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "594", "parenthetical": "quotation marks and citations omitted" }, { "page": "594", "parenthetical": "quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150522 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "98-99", "parenthetical": "quotation marks and citations omitted" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0096-01" ] }, { "cite": "702 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "836" }, { "page": "836" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4180532 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "400" }, { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0397-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "2064" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "562-63" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "387 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "216", "parenthetical": "finding probable cause based on apparent drug paraphernalia seen between the front seats" }, { "page": "216", "parenthetical": "finding probable cause as to drug offense based only on paraphernalia \"justified the search of defendant's car- trunk and its contents.\"" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519325 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "28", "parenthetical": "finding probable cause based on apparent drug paraphernalia seen between the front seats" }, { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0019-01" ] }, { "cite": "273 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441", "parenthetical": "holding that the Court of Appeals properly concluded that the odor of marijuana emanating from defendant's vehicle constituted probable cause to search the vehicle" } ], "opinion_index": 0 }, { "cite": "301 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570282 ], "year": 1981, "pin_cites": [ { "page": "708", "parenthetical": "holding that the Court of Appeals properly concluded that the odor of marijuana emanating from defendant's vehicle constituted probable cause to search the vehicle" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0705-01" ] }, { "cite": "432 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529089, 2531429, 2529931, 2532669, 2530045 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0166-03", "/nc/334/0166-05", "/nc/334/0166-04", "/nc/334/0166-02", "/nc/334/0166-01" ] }, { "cite": "428 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "280" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526070 ], "weight": 2, "pin_cites": [ { "page": "621" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0615-01" ] }, { "cite": "356 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "576-77", "parenthetical": "laying out the automobile exception to the normal warrant requirement" } ], "opinion_index": 0 }, { "cite": "319 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742205 ], "year": 1987, "pin_cites": [ { "page": "638-39", "parenthetical": "laying out the automobile exception to the normal warrant requirement" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0634-01" ] }, { "cite": "456 U.S. 798", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191830 ], "weight": 6, "year": 1982, "pin_cites": [ { "page": "825", "parenthetical": "quotation marks and citation omitted" }, { "page": "594", "parenthetical": "quotation marks and citation omitted" }, { "page": "825" }, { "page": "594" }, { "page": "825" }, { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/us/456/0798-01" ] }, { "cite": "710 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "707 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "644-45" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 936, "char_count": 23167, "ocr_confidence": 0.745, "pagerank": { "raw": 6.129838618054626e-08, "percentile": 0.3816853801128946 }, "sha256": "b6a7d5b5004b07755c420781ca60f30a1d83039d25c965573c2ee39f63c50118", "simhash": "1:ab695c7e3fde2c5e", "word_count": 3773 }, "last_updated": "2023-07-14T22:14:41.206072+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE \u00e1nd BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GARLAND CHRISTOPHER MITCHELL" ], "opinions": [ { "text": "STROUD, Judge.\nI. Factual Background\nOn 31 May 2011, Garland Mitchell (\u201cdefendant\u201d) was indicted for felonious possession of marijuana, possession of a firearm by a felon, being a habitual felon, and misdemeanor possession of drug paraphernalia. Defendant pleaded guilty to possession of drug paraphernalia, but took the remaining charges to a jury trial. The trial court bifurcated the trial, separating the habitual felon charge from the other two. The jury returned verdicts of guilty as to both the felonious marijuana possession charge and possession of a firearm by a felon.\nThe evidence presented by the state showed that on 26 March 2011, defendant and Ms. Harris, his girlfriend, were traveling in a rental car along Interstate 85/40 near Graham. Officer Lovett, a K-9 Officer of the Graham Police Department, stopped defendant for speeding. When he asked defendant for his license, defendant produced an identification card, not a driver\u2019s license. After looking up defendant\u2019s information, Officer Lovett discovered that defendant\u2019s license was revoked. At that point, Officer Lovett asked defendant and Ms. Harris to step out of the car. Officer Lovett informed them that he intended to write defendant a ticket for driving with a revoked license and let them go, but would walk his K-9 around the car first to verify that they had no contraband. Defendant then told Ms. Harris to take the \u201cblunt\u201d out of her pants, which Officer Lovett identified as a burnt marijuana cigarette.\nAfter retrieving the blunt, Officer Lovett began to search the defendant\u2019s vehicle. Officer Edwards, who had responded to the scene, kept watch over defendant and Ms. Harris. Defendant indicated to Mm that there was a gun in the glove compartment of the vehicle and then Officer Edwards informed Officer Lovett of that fact. Officer Lovett discovered a handgun in a purse in the passenger-side glove compartment and discovered 79.3 grams of marijuana inside a piece of luggage filled with men\u2019s clothing located in the trunk.\nWhile Officer Lovett searched the car, Officer Edwards received defendant\u2019s consent to search his person. During that search, Officer Edwards found a small black scale with flakes of marijuana on it in defendant\u2019s vest pocket and approximately $2,320 in U.S. currency M his pants pocket.\nDefendant moved to suppress the marijuana found in the car\u2019s trunk and exclude any opinion testimony identifying the substance found in the car and in Ms. Harris\u2019 \u201cblunt\u201d as marijuana. The trial court denied defendant\u2019s motion to suppress by an order entered 14 October 2011 and, at trial, denied defendant\u2019s motion to exclude testimony identifying the substance as marijuana. Defendant\u2019s trial counsel renewed her objections to each piece of evidence when the State moved to admit it at trial. After the jury returned verdicts of guilty to both felonious possession of marijuana and possession of a firearm by a felon, defendant pleaded guilty to being a habitual felon and was sentenced to 58-79 months in the Department of Correction. Defendant gave timely notice of appeal in open court.\nII. Search of Defendant\u2019s Vehicle\nDefendant first challenges the police officers\u2019 search of the rental car\u2019s trunk, claiming that because defendant and Ms. Harris were not under arrest and not threatening the officers, there was no \u201cexigency\u201d to justify the warrantless search. As the State notes in its brief and the trial court noted in its suppression hearing, this search was not a search incident to arrest, to which defendant\u2019s arguments might be better suited, but rather was a warrantless search of a motor vehicle for which the State claims the officers had probable cause.\nA. Standard of Review\nIt is well established that the standard of review in evaluating a trial court\u2019s ruling on a motion to suppress is that the trial court\u2019s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. In addition, findings of fact to which defendant failed to assign error are binding on appeal. Once this Court concludes that the trial court\u2019s findings of fact are supported by the evidence, then this Court\u2019s next task is to determine whether the trial court\u2019s conclusions of law are supported by the findings. The trial court\u2019s conclusions of law are reviewed de novo and must be legally correct.\nState v. Eaton,_N.C. App._,_, 707 S.E.2d 642, 644-45 (quotation marks and citation omitted), disc. rev. denied, 365 N.C. 202, 710 S.E.2d 25 (2011).\nB. Analysis\nDefendant does not challenge any of the trial court\u2019s factual findings, so they are binding on appeal. Id. The only question before us on this issue is whether the trial court\u2019s conclusion that the officers\u2019 search of the rental car did not violate defendant\u2019s Fourth Amendment rights was correct.\nThe trial court found the following as fact: Officer Lovett stopped defendant for speeding. When Officer Lovett told defendant and Ms. Harris that his dog would walk around the vehicle quickly to ensure that they were not transporting drugs defendant indicated to police that Ms. Harris had a \u201cblunt\u201d, i.e. a marijuana cigarette rolled in tobacco, which she then removed from her pants. After discovering the marijuana, Officer Lovett searched the rental car and found 79.3 grams of marijuana in the trunk. The trial court concluded that the above gave Officer Lovett probable cause to search the car. We agree.\n\u201cThe Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.\u201d United States v. Ross, 456 U.S. 798, 825, 72 L.Ed.2d 572, 594 (1982) (quotation marks and citation omitted). One such exception is the automobile exception. See State v. Isleib, 319 N.C. 634, 638-39, 356 S.E.2d 573, 576-77 (1987) (laying out the automobile exception to the normal warrant requirement). \u201cA police officer in the exercise of his duties may search an automobile without a search warrant when the existing facts and circumstances are sufficient to support a reasonable belief that the automobile carries contraband materials.\u201d State v. Holmes, 109 N.C. App. 615, 621, 428 S.E.2d 277, 280 (quotation marks, citation, and ellipses omitted), disc. rev. denied, 334 N.C. 166, 432 S.E.2d 367 (1993). \u201cIf probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.\u201d Ross, 456 U.S. at 825, 72 L.Ed.2d at 594.\nHere, the discovery of marijuana on Ms. Harris, a passenger in the vehicle, \u201csupports] a reasonable belief that the automobile carries contraband materials.\u201d Holmes, 109 N.C. App. at 621, 428 S.E.2d at 280. We have held that the mere odor of marijuana or presence of clearly identified paraphernalia constitutes probable cause to search a vehicle. State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981) (holding that the Court of Appeals properly concluded that the odor of marijuana emanating from defendant\u2019s vehicle constituted probable cause to search the vehicle); State v. Martin, 97 N.C. App. 19, 28, 387 S.E.2d 211, 216 (1990) (finding probable cause based on apparent drug paraphernalia seen between the front seats). Clearly if the odor of marijuana alone is sufficient to constitute probable cause, seeing marijuana constitutes probable cause as well. Therefore, Officer Lovett could legally search wherever marijuana might reasonably be found, including the trunk and the luggage therein. See Ross, 456 U.S. at 825, 72 L.Ed.2d at 594; Martin, 97 N.C. App. at 28, 387 S.E.2d at 216 (finding probable cause as to drug offense based only on paraphernalia \u201cjustified the search of defendant\u2019s car- trunk and its contents.\u201d). Defendant\u2019s argument is therefore without merit.\nIII. Ineffective Assistance of Counsel\nDefendant next argues that he received ineffective assistance of counsel when his trial counsel failed to make a motion to dismiss at the close of all evidence. He contends that he was prejudiced by this error because there was insufficient evidence of possession to go to the jury on the charge of possession of a firearm by a felon. We disagree.\nThe United States Supreme Court has set forth the test for determining whether a defendant received constitutionally ineffective assistance of counsel, which our Supreme Court expressly adopted in State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985). Pursuant to the two part test,\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\nStrickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).\nState v. Blackmon, 208 N.C. App. 397, 400, 702 S.E.2d 833, 836 (2010).\nTo show that he was prejudiced by trial counsel\u2019s failure to move for dismissal at the close of all evidence, defendant must show that he would have been entitled to a dismissal had the motion been made. See id.\nWhen ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State\u2019s favor. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered. The trial court must decide only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. However, so long as the evidence supports a reasonable inference of the defendant\u2019s guilt, a motion to dismiss is properly denied even though the evidence also permits a reasonable inference of the defendant\u2019s innocence.\nState v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009) (quotation marks and citations omitted).\nDefendant was charged with possession of a firearm by a felon under N.C. Gen. Stat. \u00a7 14-415.1 (2009). There are two elements to possession of a firearm by a felon: \u201c(1) defendant was previously convicted of a felony; and (2) thereafter possessed a firearm.\u201d State v. Best,_N.C. App._,_, 713 S.E.2d 556, 561, disc. rev. denied, 365 N.C. 361, 718 S.E.2d 397 (2011). It is uncontested that defendant had been convicted of a felony prior to the date in question. Therefore, the only element we must consider is possession.\nPossession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.\nState v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted). Here, defendant did not actually possess the firearm because it was not found in his physical custody, but in a purse in the glovebox of the car he was driving. Therefore, the State was required to prove that defendant had the \u201cpower and intent to control its disposition.\u201d Id.\n[A]n inference of constructive possession can . . . arise from evidence which tends to show that a defendant was the custodian of the vehicle where the [contraband] was found. In fact, the courts in this State have held consistently that the driver of a borrowed car, like the owner of the car, has the power to control the contents of the car. Moreover, power to control the automobile where [contraband] was found is sufficient, in and of itself, to give rise to the inference of knowledge and possession sufficient to go to the jury.\nBest,_N.C. App. at_, 713 S.E.2d at 562 (citation and quotation marks omitted; emphasis added).\nHere, the evidence showed that defendant was driving the rental car when Officer Lovett initiated the traffic stop. Further, defendant\u2019s interactions with the police showed that he was aware of the contents of the vehicle. He pointed the officers to the marijuana \u201cblunt\u201d in Ms. Harris\u2019 pants and stated to Officer Edwards that there was a gun in the glovebox, indicating he was aware of its presence, despite the fact that it was found in Ms. Harris\u2019 purse.\nDefendant highlights Ms. Harris\u2019 testimony that defendant had only been driving a short time and that the gun was hers and argues that he never actually mentioned the gun to Officer Edwards.2 However, in reviewing a motion to dismiss, the court resolves all \u201ccontradictions or conflicts in the evidence ... in favor of the State\u201d and does not consider \u201cevidence unfavorable to the State.\u201d Miller, 363 N.C. at 98, 678 S.E.2d at 594 (quotation marks and citations omitted). Therefore, the trial court could not consider this evidence in deciding a motion to dismiss.\nDefendant argues that this case is controlled by State v. Alston. In Alston, the defendant was convicted of possession of a firearm by a felon. Alston, 131 N.C. App. at 515, 508 S.E.2d at 316. The defendant was a passenger in a car being driven by his wife. Id. The police found a gun, registered to his wife, on the center console in between the defendant and his wife. Id. at 515-16, 508 S.E.2d at 316-17. The only evidence linking the defendant to the gun was a statement by one of the children in the car that \u201cDaddy\u2019s got a gun.\u201d Id. at 515, 508 S.E.2d at 316. That statement was not admitted for the truth of the matter asserted, so the court could not consider it. Id. at 519, 508 S.E.2d at 319 n.1. This Court found that because the evidence showed no more than mere presence, there was insufficient evidence to support an inference of possession. Id. at 519, 508 S.E.2d at 319.\nThe present case is different from Alston in one important respect. Defendant was driving the vehicle here, whereas the defendant in Alston was only a passenger. See id. at 515, 508 S.E.2d at 316. A driver generally has power to control the vehicle he is driving, even if it not owned by the driver. Best,_N.C. App. at__, 713 S.E.2d at 562. \u201c[P]ower to control\u201d the vehicle is sufficient evidence from which it is reasonable to infer possession. Id. Further, defendant told Officer Edwards that there was a gun in the glovebox. Thus, there was evidence before the trial court that defendant controlled the vehicle and that he was aware of the contents thereof. Unlike in Alston, there is other sufficient incriminating evidence here from which to reasonably infer constructive possession.\nAs a result, defendant cannot meet his burden to show prejudice from his trial counsel\u2019s failure to move to dismiss the possession of a firearm by a felon charge. See Blackmon, 208 N.C. App. at 400, 702 S.E.2d at 836. This argument is also overruled.\nIV. Visual Identification of Substance as Marijuana\nAt trial, Officer Lovett identified the substance found in the trunk of defendant\u2019s rental car and in the \u201cblunt\u201d handed over by Ms. Harris as marijuana based on his visual and olfactory assessment, over the objection of defendant. Defendant\u2019s trial counsel objected to the introduction of this evidence without scientific testing. Defendant argues on appeal that the trial court erred in admitting this opinion testimony without scientific testing. \u201cThe trial court\u2019s decision regarding what expert testimony to admit will be reversed only for an abuse of discretion.\u201d State v. Alderson, 173 N.C. App. 344, 350, 618 S.E.2d 844, 848 (2005).\nOur decision in this case is governed by this Court\u2019s prior decision in State v. Ferguson, 204 N.C. App. 451, 694 S.E.2d 470 (2010). In Ferguson, we addressed precisely the same argument that defendant makes here \u2014 that our Supreme Court\u2019s holding in State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009), and this Court\u2019s decision in State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738 (2010), requiring scientific testing for cocaine and prescription pills respectively, applies to marijuana as well. Ferguson, 204 N.C. App. at 457, 694 S.E.2d at 475. We specifically noted that marijuana is distinguishable from other controlled substances that require more technical analyses for positive identification. Id. In keeping with a long line of cases, we held in Ferguson that the State is not required to submit marijuana for chemical analysis. Id. We are bound by this Court\u2019s prior decision and apply it here. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nOfficer Lovett testified at trial that he had served as a police officer for six years, been involved in numerous marijuana investigations, and received training in the identification of marijuana both in basic law enforcement training and in specialized training as a K-9 officer. He then identified the substance found in both the \u201cblunt\u201d and in the rental car\u2019s trunk as marijuana based on its smell and appearance. Such an opinion is proper and the trial court did not abuse its discretion in allowing Officer Lovett\u2019s opinion testimony identifying the substance as marijuana. See Ferguson, 204 N.C. App. at 457, 694 S.E.2d at 475.\nV. Mention of Defendant\u2019s Prior Convictions\nFinally, defendant contends that it was plain error for the trial court to allow the prosecutor to ask defendant\u2019s witnesses whether they were aware of his prior misdemeanor convictions for assault by pointing a gun and assault with a deadly weapon before he testified and when the defendant\u2019s witnesses did not testify as to his character for being law-abiding or non-violent on direct examination.\n\u201cUnder the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.\u201d State v. Rollins,_N.C. App._,_, 725 S.E.2d 456, 463 (quotation marks and citation omitted), app. dismissed, _ N.C. _, 731 S.E.2d 415 (2012). Here, defendant\u2019s conviction for armed robbery, a felony, had already been properly admitted into evidence through introduction of the record of his conviction. We find it highly improbable that mention of his prior misdemeanor assaults changed the jury\u2019s verdict when evidence of greater crimes also involving use of a weapon was already properly before them. Thus, even assuming that it was error to admit that testimony, we find no plain error as to this issue.\nVI. Conclusion\nWe affirm the trial court\u2019s order denying defendant\u2019s motion to suppress because the police officers had probable cause to search the entirety of the vehicle, including, the trunk. We hold that defendant did not receive ineffective assistance of counsel, find no error in the trial court\u2019s decision to allow the police officers to identify the marijuana by visual identification, and find no plain error in the mention of defendant\u2019s prior convictions at trial.\nORDER AFFIRMED; NO ERROR IN JUDGMENT.\nJudges ELMORE \u00e1nd BEASLEY concur.\n. Defendant does not challenge the initial stop. Therefore, we consider any objection thereto abandoned. N.C.R. App. P. 28(a).\n. We note that in this case Officer Lovett was not proffered as an expert. However, where \u201ca defendant fails to request that a witness be properly qualified as an expert, such a finding is deemed implicit in the trial court\u2019s admission of the challenged testimony.\u201d State v. Ferguson, 204 N.C. App. 451, 456-57, 694 S.E.2d 470, 475 (2010) (citation and quotation marks omitted).\n. At the time this Court was considering Ferguson, Ward had not yet been reviewed by our Supreme Court. See Ferguson, 204 N.C. App. at 457, 694 S.E.2d at 475 (citing Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009)). However, this Court\u2019s holding in Ward \u2014 -that prescription pills identified by expert opinion must be subjected to chemical analysis \u2014 was affirmed by the Supreme Court. Ward, 364 N.C. at 148, 694 S.E.2d at 747-48.\n. There was some confusion at trial as to whether the defense witnesses had testified to defendant\u2019s character on direct. In fact, Ms. Harris did testify that the defendant was \u201cwonderful\u201d, but his character for non-violence was first brought up by the State on cross-examination of Ms. Harris.\n. We note that there was no evidence that the gun in question was registered to Ms. Harris.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Amanda R Little, for the State.", "James N. Freeman, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARLAND CHRISTOPHER MITCHELL\nNo. COA12-499\nFiled 4 December 2012\n1. Search and Seizure \u2014 search of automobile \u2014 probable cause \u2014 passenger\u2019s marijuana\nThe discovery of marijuana on a passenger in a vehicle supported the belief that the automobile could contain contraband and supplied probable cause for a search of the vehicle. The trial court\u2019s conclusion that the officers\u2019 search of the rental car after a traffic stop did not violate defendant\u2019s Fourth Amendment rights was correct.\n2. Constitutional Law \u2014 effective assistance of counsel \u2014 failure to move to dismiss \u2014 no prejudice\nDefendant received effective assistance of counsel in a prosecution for possession of a firearm by a felon where his trial counsel did not move for a dismissal at the close of all the evidence. The firearm was found in a purse in the glovebox of the car defendant was driving rather than in defendant\u2019s actual possession, but there was evidence that defendant controlled the vehicle and that he was aware of its contents. Defendant did not meet his burden of showing prejudice.\n3. Evidence \u2014 officer\u2019s identification of marijuana \u2014 visual and olfactory\nThe trial court did not err in a felonious possession of marijuana prosecution by admitting an officer\u2019s visual and olfactory identification of the marijuana. Marijuana is distinguishable from other controlled substances that require more technical analyses for positive identification.\n4. Evidence \u2014 prior crimes or bad acts \u2014 admission of prior convictions \u2014 not plain error\nThere was no plain error in a prosecution for felonious possession of marijuana, possession of a firearm by a felon, and other offenses where the prosecutor was allowed to ask defendant\u2019s witnesses about defendant\u2019s prior misdemeanor assault convictions. Defendant\u2019s prior conviction for armed robbery, a felony, had already been properly admitted into evidence; it is highly improbable that mention of his prior misdemeanor assaults changed the jury\u2019s verdict.\nAppeal by defendant from judgments entered 4 October 2011 and order entered 14 October 2011 by Judge J.B. Allen, Jr. in Superior Court, Alamance County. Heard in the Court of Appeals 14 November 2012.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Amanda R Little, for the State.\nJames N. Freeman, Jr., for defendant-appellant." }, "file_name": "0171-01", "first_page_order": 181, "last_page_order": 190 }