An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-626

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

STATE OF NORTH CAROLINA

     v .                              Cleveland County
                                     Nos. 02 CRS 58785
ARON JOHNSON, JR.                         03 CRS 3560, 3561

    Appeal by defendant from judgment entered 23 July 2003 by Judge J. Gentry Caudill in Cleveland County Superior Court. Heard in the Court of Appeals 8 December 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Kevin L. Anderson, for the State.

    William B. Gibson, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Aron Johnson, Jr., appeals after a jury found him guilty of armed robbery, possession of a firearm by a convicted felon and of being an habitual felon. The State's evidence tended to show that on the morning of 17 December 2002, Anthony Hoey was in his cab. A man approached the cab, and when Hoey unlocked the door, the man pulled a mask down over his face, pointed a gun at Hoey and demanded money. The man took $200.00 from Hoey.
    Hoey knew defendant for 30-35 years. When the police came, Hoey told them that he recognized the attacker but could not place his name. Later that morning, Hoey saw defendant come out of a nearby grocery store. Hoey told the store owner, George Sims, thatthis was the man who robbed him. Sims told Hoey that the man's name was Aron Johnson.     
    Hoey called the police back and told them defendant's name. Later that day, the police presented Hoey with a photographic lineup that was created on a computer and contained six pictures. The officer entered the approximate age, gender, race, and skin color of defendant into the computer program, and the program generated photographs of people who had similar characteristics. When he saw the lineup, Hoey immediately identified defendant's photo and stated that this was the man who robbed him. At trial, Hoey also testified that defendant was the person who pulled the gun and took his money.
    Defendant testified that on the night before the robbery, he had been sleeping at his girlfriend's parents' house and did not wake up until it was daylight. Defendant denied committing the robbery. Grenda Ryvers testified that she had seen defendant and his girlfriend, Kathy Martin, asleep together sometime between 8:15 and 8:30 on the morning of the robbery.
    After considering the evidence, the jury found defendant guilty as charged. Defendant appeals.
    On appeal, defendant argues that the trial court erred by (1) allowing the offenses of armed robbery and possession of a firearm by a convicted felon to be joined for trial, (2) denying defendant's motion to suppress the pretrial identification, and (3) allowing defendant's prior conviction for robbery to be used as evidence to support the charge of possession of a firearm by aconvicted felon and to support defendant's status as an habitual felon. We disagree and conclude that defendant received a fair trial free from reversible error.

I. Joinder
    Defendant argues that the trial court erred by allowing the offenses of armed robbery and possession of a firearm by a convicted felon to be joined for trial. N.C. Gen. Stat. § 15A- 926(a) (2003) allows the joinder of criminal offenses 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.” Our Supreme Court has explained the positive aspects of joinder:
        Public policy strongly favors joinder because it expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve on juries and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once.

State v. Maness, 321 N.C. 454, 458, 364 S.E.2d 349, 351 (1988). “A trial court's ruling on joining cases for trial is discretionary and will not be disturbed absent a showing of abuse of discretion.” Id.
    In this case, the trial court allowed the offenses of armed robbery and possession of a firearm by a convicted felon to be joined for trial. Defendant claims that the evidence of prior criminal convictions prejudiced him, and a different result mayhave been reached if the alleged offenses had been tried separately. We disagree.
    First, the underlying felony which the State used to establish an element of possession of a firearm by a felon was common law robbery, a crime that did not involve a firearm. Second, the State presented substantial evidence of defendant's guilt on the charge of armed robbery. This included the victim's statement that he was certain that defendant was the perpetrator. Finally, there is no question that the charges of robbery with a firearm and possession of a firearm by a convicted felon arise out of the same act or transaction and involve the same evidence. Defendant has failed to show that his ability to receive a fair trial has been prejudiced or that the trial court abused its discretion in permitting joinder in this case. We overrule this assignment of error.
II. Pretrial Identification
    Defendant contends that the trial court erred by denying his motion to suppress the pretrial identification. Our appellate courts have held that this “evidence will only be excluded, however, when the facts reveal that the identification procedure was so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.” State v. Williams, 69 N.C. App. 126, 128, 316 S.E.2d 322, 324 (1984). Further,
        [d]ue process of law does not require that all participants in a lineup or in a photograph, viewed by the victim of or witness to a crime, be identical in appearance, for that would, obviously, be impossible. All that is required is that the lineup or photograph be fair and that the officers conducting the investigationdo nothing to induce the witness to select one participant or subject rather than another.

Id. (citation omitted).
    In the present case, when the victim was robbed, he recognized defendant but could not identify him by name. The victim indicated that he knew defendant for 30-35 years. Later that morning, the victim saw defendant leaving a nearby grocery store, recognized defendant immediately, and learned defendant's name from the store's owner. When the police presented the victim with a photographic lineup that day, the victim identified defendant as the man who robbed him.
    Defendant argues that the photographic lineup was impermissibly suggestive because defendant's photograph shows that he is significantly shorter than the men in the other pictures. However, the lineup was computer generated and offered pictures of persons with physical characteristics similar to defendant's so as not to prejudice defendant. Furthermore, we have reviewed copies of the photographs used in the lineup in this case. Since the pictures of the men were head shots (photographs depicting the men from the mid-chest region to the head), we cannot discern the height of the men with any degree of certainty. Therefore, defendant's claim that his picture showed that he was significantly shorter than the other men is without merit.
    While we recognize that eyewitness identification is not infallible, nothing in the record indicates that this photographiclineup was impermissibly suggestive. Accordingly, the trial court did not err in admitting this evidence.
III. Use of Prior Conviction as Evidence    
    Defendant argues that the trial court erred by allowing defendant's prior conviction for robbery to be used as evidence to support the charge of possession of a firearm by a convicted felon and to support defendant's status as an habitual felon.
    Pursuant to N.C.R. App. P. 10(b)(1) (2004):
        In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.

    Here, defendant acknowledges that he did not make this objection at trial. Furthermore, because defendant failed to assert plain error in an assignment of error, we will not conduct plain error review. State v. Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995). Since defendant has failed to preserve this issue for appellate review, we dismiss this assignment of error.
    After considering the record, briefs, and transcript, we conclude that defendant received a fair trial free from reversible error.
    No error.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).

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