An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1601


Filed: 1 June 2004

v .                         Forsyth County
                            No. 01 CRS 63110

    Appeal by defendant from judgment entered 16 July 2002 by Judge Ron E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 17 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Diane Martin Pomper, for the State.

    Irving Joyner, for defendant-appellant.

    GEER, Judge.

    Defendant Nakita Deverick Nivens appeals from his convictions for robbery with a dangerous weapon and possession of a firearm by a felon. Defendant argues that the indictment for possession of a firearm by a felon was fatally defective under N.C. Gen. Stat. § 14-415.1(c) because the charge was included as a separate count in a single indictment also charging defendant with robbery with a dangerous weapon and assault by pointing a gun. We agree and accordingly vacate defendant's conviction for possession of afirearm by a felon. We find, however, no error as to defendant's conviction for robbery with a dangerous weapon.

    The State's evidence tended to show the following. On the afternoon of 21 December 2001, Maya Moorman and her boyfriend Tavian Davis were shopping with their two-year-old child at the Hanes Mall in Winston-Salem. While inside the mall, Ms. Moorman noticed defendant because of his hairstyle and pointed him out to Mr. Davis.
    Approximately a half hour later, while Mr. Davis continued shopping, Ms. Moorman left the mall to leave their purchases in the car. As she crossed the parking lot toward the car, carrying her child and several shopping bags, she heard a person come up behind her and say "hey." When she turned around, she saw a man standing very close to her. He pulled his jacket aside to reveal a gun tucked in his waistband and demanded that Ms. Moorman give him all her cash. She handed him the $50.00 she had in her wallet. As the man left, Mr. Davis approached. Ms. Moorman told him what had happened and pointed toward the man, whom Mr. Davis was able to observe jogging away.
    Ms. Moorman and Mr. Davis immediately reported the incident at the mobile police substation in the mall parking lot. Ms. Moorman gave the police officer a description of the man who robbed her,while Mr. Davis told the officer he had recognized the man as someone named Nakita from his neighborhood. Later, at the main police station, Mr. Davis reviewed a series of photographs on the computer and identified defendant. Separately, Ms. Moorman also identified defendant from a photographic lineup.
    Defendant was charged in a single indictment with three counts: (1) robbery with a dangerous weapon, (2) assault by pointing a gun, and (3) possession of a firearm by a felon. Before trial, the State voluntarily dismissed the assault by pointing a gun charge. A jury found defendant guilty of the two remaining charges, and the trial court sentenced defendant to a term of 130 to 165 months for robbery with a dangerous weapon and a term of 22 to 27 months for possession of a firearm by a felon, with the two sentences to run concurrently.

    Defendant first argues that the indictment violated N.C. Gen. Stat. § 14-415.1(c) (2003). Count III of the indictment charged defendant with possession of a firearm by a felon in violation of N.C. Gen. Stat. § 14-415.1 (2003). Subsection (a) of that statute provides:
            It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or anoverall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).

N.C. Gen. Stat. § 14-415.1(a). Subsection (c) of N.C. Gen. Stat. § 14-415.1 provides in pertinent part: "The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section." N.C. Gen. Stat. § 14- 415.1(c). The question presented by this appeal is whether this provision requires that a charge under N.C. Gen. Stat. § 14- 415.1(a) be included in a document separate from an indictment for any other charges.
    Our Supreme Court has held that "'[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning . . . .'" State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974) (quoting 7 Strong's, N.C. Index 2d Statutes § 5 (1968)). This Court has already held in State v. Hardy, 67 N.C. App. 122, 125, 312 S.E.2d 699, 702 (1984), that "G.S. 14-415.1(c) is clear and unambiguous. . . . [I]t simply requires a separate indictment." Our Supreme Court, in construing the Habitual Felons Act, which contains a similar provision,   (See footnote 1)  has held: "[T]hestatute's plain meaning is . . . that the habitual felon indictment must be a separate document[.]" State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 710 (1996). See also State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 863 (1995) (N.C. Gen. Stat. § 14-7.3 "contemplates two separate indictments, one for the predicate substantive felony and one for the ancillary habitual felon charge").
    The State argues that "subsection (c) only bars joining in the same indictment other offenses related to or arising under this section. Since Robbery does not arise under this section, the trial judge found quite properly that the indictment in this case was not defective under N.C.G.S. § 14-415.1(c)." This argument misreads the statute, which actually requires that the indictment for possession of a firearm by a felon be separate from any indictment charging the defendant "with other offenses related to or giving rise to a charge under this section." N.C. Gen. Stat. § 14-415.1(c) (emphasis added). In other words, the relevant question under the statute is whether the offenses also charged in the indictment were related to or gave rise to the charge of possession of a firearm by a felon, a charge arising under § 14- 415.1.     Here, the charge of possession of a firearm by a felon arose as a result of defendant's use of the firearm during the robbery and assault. Therefore, the robbery and assault gave rise to the possession charge and, as such, should not have been charged in the same document as the possession charge. The indictment thus violated N.C. Gen. Stat. § 14-415.1(c).
    A valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony. State v. Simpson, 302 N.C. 613, 616, 276 S.E.2d 361, 363 (1981). In this case, where the form of the indictment was explicitly prescribed by statute, we cannot agree with the State that "any violation of N.C.G.S. § 14-415.1(c) was merely a technical error." We must give effect to the intent of the legislature as expressed in the plain language of the statute. We also note that this argument attempts to import harmless error analysis into consideration of defective indictments. This Court has already held that harmless error does not apply when there is a fatally defective indictment. State v. Phillips, __ N.C. App. __, __, 592 S.E.2d 272, 274 (2004).
    Because the statute mandated that the possession of a firearm by a felon charge be brought in a separate document, the indictment charging defendant with possession of a firearm was fatally defective and invalid on its face. Judgment on the third count ofthe indictment is therefore vacated. Id. (judgment on fatally defective indictment must be vacated).
    Defendant next assigns as error the trial court's decision overruling his objection to the joinder of the two offenses for trial. N.C. Gen. Stat. § 15A-926 (2003) is the controlling statute:
        Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, 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). Defendant does not dispute that the charge of armed robbery and the charge of possession of a firearm were based on the same transaction. This Court has specifically upheld the joinder of a charge of possession of a firearm by a felon with additional charges involving the firearm when the defendant failed to show any prejudice. Hardy, 67 N.C. App. at 126, 312 S.E.2d at 702.
    If a transactional connection exists, then consideration must be given as to:
        "whether the accused can receive a fair hearing on more than one charge at the same trial," i.e., whether consolidation "hinders or deprives the accused of his ability to present his defense." . . . This [question] isaddressed to the sound discretion of the trial judge and is not reviewable on appeal absent a manifest abuse of that discretion.

State v. Montford, 137 N.C. App. 495, 498, 529 S.E.2d 247, 250 (quoting State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981); other internal citations omitted), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000). Defendant argues that he was prejudiced by joinder because it allowed evidence of his prior drug-related convictions, admittedly admissible in connection with the possession of a firearm charge, to be considered by the jury in connection with the robbery charge. We disagree with defendant's assumption that this evidence was inadmissible with respect to the robbery charge.
    At trial, over defendant's objection, the trial court admitted testimony regarding defendant's prior convictions for sale of cocaine and possession with intent to sell and deliver cocaine, as well as certified copies of the warrant for his arrest on those charges and the transcript of his guilty plea. Defendant acknowledges that this evidence was admissible to prove the possession of a firearm charge. See State v. Faison, 128 N.C. App. 745, 747, 497 S.E.2d 111, 113 (1998) (State required to offer evidence of prior convictions in order to prove all of the elements of possession of a firearm by a felon).     In claiming that this evidence was inadmissible under Rule 404(b) with respect to the robbery charge, defendant argues only that "[p]roviding jurors with information regarding the defendant's prior drug related convictions allowed them to improperly consider this defendant's propensity to commit the armed robbery in order to obtain money to purchase drugs." Phrased differently, defendant objects that the jury was allowed to consider the evidence of defendant's drug-related convictions as providing a motive for the robbery. Under Rule 404(b), however, evidence is admissible for that purpose: "Evidence of other crimes, wrongs, or acts . . . may . . . be admissible for other purposes, such as proof of motive . . . ." N.C.R. Evid. 404(b). See also State v. Powell, 340 N.C. 674, 690, 459 S.E.2d 219, 226-227 (1995) (evidence of defendant's drug use admissible to show motive to commit robbery), cert. denied, 516 U.S. 1060, 133 L. Ed. 2d 688, 116 S. Ct. 739 (1996); State v. Barnett, 141 N.C. App. 378, 390, 540 S.E.2d 423, 431 (2000) (evidence that defendant previously committed forgery to support his drug habit admissible to show motive for robbery and murder), aff'd per curiam, 354 N.C. 350, 554 S.E.2d 644 (2001).
    Since the evidence of defendant's prior drug-related convictions was admissible with respect to both charges, defendant has failed to establish prejudice from the joinder of the robbery and possession of a firearm by a felon offenses for trial. For thesame reason, we overrule defendant's assignment of error challenging the admissibility of this evidence. Although defendant also points to N.C.R. Evid. 609, the fact "that the evidence could not be admitted pursuant to Rule 609(a) does not preclude its admission under an alternative Rule of Evidence" such as Rule 404(b). Barnett, 141 N.C. App. at 389, 540 S.E.2d at 430.
    Defendant also assigns error to various aspects of the trial court's sentencing. He first argues that he was subjected to double jeopardy when the trial court, in calculating defendant's prior record points, included the convictions that were proven at trial for purposes of establishing that he was a felon. Since defendant did not raise this constitutional issue at trial, it cannot be raised for the first time on appeal. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). In any event, no double jeopardy issue exists since, contrary to defendant's contention, he did not receive multiple punishments for the same offense. Evidence of the prior convictions was considered at trial to establish that defendant was a felon and, therefore, that possession of a firearm was unlawful. See State v. Jeffers, 48 N.C. App. 663, 666, 269 S.E.2d 731, 733-34 (1980) ("A previous conviction for one of a group of enumerated felonies is an essential element of the offense of possession of a firearm by afelon, and thus in the absence of a prior conviction, there is no offense at all."), disc. review denied and appeal dismissed, 301 N.C. 724, 276 S.E.2d 285 (1981). His punishment flowed from the unlawful possession of the firearm and not from his prior convictions. Those convictions enhanced his sentence only once: during the calculation of his prior record level.
    Defendant also challenges the sufficiency of the evidence to support (1) the inclusion as a felony of his fleeing to elude conviction when calculating his prior record level; and (2) the court's finding of the aggravating factor that he committed the offense while on pre-trial release. Defendant's counsel's responses to the court constituted stipulations that defendant was on pre-trial release and that the prior record level worksheet was correct. See State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002) (statements made by attorney representing defendant could reasonably be construed as stipulation by defendant to the worksheet); State v. Jackson, 119 N.C. App. 285, 289, 458 S.E.2d 235, 238 (1995) (response was sufficient to constitute stipulation to existence of aggravating factor).
    We overrule defendant's assignments of error regarding sentencing. We have carefully reviewed defendant's remaining assignments of error and conclude that none of them require reversal. We hold that there was no error in connection withdefendant's conviction for robbery with a dangerous weapon, but vacate defendant's conviction for possession of a firearm by a felon.

    Vacated in part; no error in part.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

Footnote: 1
    The Habitual Felons Act specifies that "[t]he indictment charging the defendant as an habitual felon shall be separate fromthe indictment charging him with the principal felony." N.C. Gen. Stat. § 14-7.3 (2003).

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