State v Davis, (02-1537) 07/15/2003

Appeal by defendant from judgment entered 13 June 2002 by Judge James Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 7 July 2003.

Roy Cooper, Attorney General, by Tina Lloyd Hlabse, Assistant Attorney General, for the State.

Haakon Thorsen for defendant-appellant.

STEELMAN, Judge.

    Defendant, Walter William Davis, II, appeals convictions of two counts of robbery with a dangerous weapon and one count of second-degree kidnapping. Defendant pled guilty to habitual violent felon status. The court consolidated the offenses and sentenced defendant to life imprisonment. For the reasons discussed herein, we find no error.
    The State's evidence tended to show that on 11 July 2000, Meko Anderson was standing at a bus stop waiting to catch a bus to work when a person he identified as defendant stopped and offered him a ride. Anderson accepted the offer. Defendant subsequently asked Anderson to drive his vehicle. Anderson followed defendant's directions as to where to drive and turn. Anderson eventuallyturned the vehicle into an alley. Defendant placed a gun to Anderson's side, reached into Anderson's pockets, and took $80.00 in cash from him. Defendant ordered Anderson to get out of the vehicle. Anderson exited the vehicle and defendant sped away.
    Three days later, on 14 July 2000, Joseph Burdette was attending a party when a person he subsequently identified as defendant arrived. Burdette announced to the assembled group that he was calling a taxicab to take him to pick up a deposit check at his former apartment complex. Defendant volunteered to transport Burdette in exchange for payment of five dollars. As they proceeded on the roadway, defendant made a wrong turn, drove onto the shoulder of the road, pulled out a knife, and commanded Burdette to give him his cigarettes and money. Defendant took $183 from Burdette and told Burdette to get out of the vehicle. Burdette exited the vehicle and defendant sped away.
    Defendant did not present any evidence.
    In defendant's first assignment of error, he argues that the trial court erred by joining the offenses against Burdette and Anderson for trial. Joinder of offenses for trial is governed by N.C. Gen. Stat. § 15A-926, which permits joinder “when the offenses . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.” N.C. Gen. Stat. § 15A-926(a) (2001). Defendant argues the incidents are not sufficiently related or connected as to constitute parts of a single scheme or plan. We disagree.    Joinder motions are addressed to the discretion of the trial judge, whose decision will not be disturbed in the absence of a showing of an abuse of discretion. State v. Cummings, 103 N.C. App. 138, 140, 404 S.E.2d 496, 498 (1991). The decision to join will be upheld unless it is shown “the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to the defendant.” State v. Johnson, 280 N.C. 700, 704, 187 S.E.2d 98, 101 (1972).
    In the instant case, within a span of three days, defendant offered each victim a ride in his automobile, and instead of transporting them to their intended destinations, he robbed the victims of their cash and abandoned them on the roadside. We hold that these incidents are sufficiently similar and connected such that joinder of the cases for trial was not unjust and prejudicial.
    In his second assignment of error, defendant argues that the trial court erred by refusing to allow him to cross-examine Burdette about charges of drug-related offenses pending against Burdette. We disagree.
    Cross-examination regarding specific instances of conduct of a witness is permitted in the court's discretion if the evidence is probative of truthfulness or untruthfulness. N.C. Gen. Stat. § 8C- 1, Rule 609(b) (2001); State v. Morgan, 315 N.C. 626, 634-635, 340 S.E.2d 84, 90 (1986).
    Evidence that a witness has used, abused or sold drugs and alcohol is not generally considered probative of veracity or character for untruthfulness. Id. at 635, 340 S.E.2d at 90. Evenif the evidence did relate to the witness's character for untruthfulness, defendant was not prejudiced because similar evidence was admitted regarding Burdette's usage of drugs, associating with drug users, and delivering drugs to others. See State v. Wood, 310 N.C. 460, 312 S.E.2d 467 (1984) (holding that the defendant was not prejudiced by exclusion of evidence when similar evidence was admitted at other times during the trial). This assignment of error is without merit.
    In his third assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the charge of violent habitual felon status on the ground that it violated the prohibition against cruel and unusual punishment. Defendant acknowledges that this Court has previously upheld the statute against an identical challenge. See State v. Mason, 126 N.C. App. 318, 321, 484 S.E.2d 818, 820 (1997), cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001). He nonetheless argues the punishment of life imprisonment violates the Eighth Amendment because it is excessive and disproportionate. Having admitted to violent habitual felon status, and not having moved to withdraw the plea in the court below, defendant does not have the right to challenge the constitutionality of the violent habitual felon statute on appeal. See State v. Young, 120 N.C. App. 456, 459, 462 S.E.2d 683, 685 (1995). Moreover, defendant did not make this specific argument in the court below. A constitutional issue not raised in the trial court will not be considered for the first time on appeal. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). Thisassignment of error is thus without merit.
    In his final assignment of error, defendant argues that the trial court erred by denying his motion to dismiss the charge of second-degree kidnapping of Anderson. Citing State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981), he argues his conviction of both second-degree kidnapping and robbery with a dangerous weapon violates the prohibition against double jeopardy because the restraint of Anderson necessary to prove kidnapping was inherent in the offense of robbery with a dangerous weapon. We disagree.
    Defendant's reliance upon Irwin is misplaced. In that case, the defendant's asportation of the victim to the back of the store to open a safe was “an inherent and integral part of the attempted armed robbery.” Id. at 103, 282 S.E.2d at 446. Here, defendant's transportation of the victims in his automobile was not necessary or integral in order for him to extract money from them. The money he took was already on the victims' persons. See State v. Davidson, 77 N.C. App. 540, 543, 335 S.E.2d 518, 520 (1985), rev. denied, 315 N.C. 393, 338 S.E.2d 882 (1986) (upholding additional conviction of kidnapping where removal of armed robbery victims to a store dressing room was not an inherent and integral part of the robbery). This assignment of error is without merit.
    NO ERROR.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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