State v. Greene

34 N.C. App. 149 | N.C. Ct. App. | 1977

PARKER, Judge.

In his brief the defendant presents but one question for review, being the question raised by his first assignment of error. The questions raised by his remaining assignments of error are deemed abandoned. Rule 28(a), North Carolina Rules of Appellate Procedure.

Defendant’s sole contention on this appeal is that the trial court committed prejudicial error in overruling his objection to the State’s motion to consolidate all three charges for trial. He admits that the charges of kidnapping and second degree rape were properly joined because those offenses involved a single victim and occurred at virtually the same time. He points out, however, that the third offense, assault with intent to commit rape, involved a different victim and occurred at a different time than the other offenses, and he contends that his defense of the rape and kidnapping charges was unreasonably prejudiced when the State was permitted to introduce evidence of the earlier offense against Mrs. Elerick. We find no error.

G.S. 15A-926(a) provides in part that “[t]wo or more offenses may be joined . . . for trial 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.” Here, the State’s evidence showed “a series of acts or transactions connected together.” The offenses for which defendant was tried occurred in a single afternoon within a three-hour period, with a time lapse of approximately, one hour and twenty-five minutes between offenses. The offenses were similar in nature and occurred within such a short time span that they could logically be considered “all parts of a continuing program of action by the defendant.” State v. Frazier, 280 N.C. 181, 195, 185 S.E. 2d 652, 661 (1972), death sentence vacated, 283 N.C. 99, 195 S.E. 2d 33 (1973). Evidence of the offense against either victim was competent to show defendant’s attitude and purpose in connection with the offense or offenses against the other. State v. Davis, 229 N.C. 386, 50 S.E. 2d 37 (1948); State v. Edwards, 224 N.C. 527, 31 S.E. 2d 516 (1944); State v. Gainey, 32 N.C. App. 682, 233 S.E. 2d 671 (1977); 1 Stansbury’s N.C. Evidence (Brandis Rev.), § 92, p. 299; Annot., 167 A.L.R. 565 (1947); Annot., 77 A.L.R. 2d 841 (1961). Under these circumstances, the consolidation of the cases against defendant for trial was within the sound discretion of the trial judge. State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed. 2d 1206 (1976). No abuse of discretion has been shown.

Defendant contends that a consideration of the class or nature of the offenses is improper in making a decision to consolidate because the legislature, in enacting G.S. 15A-926(a), omitted the clause which appeared in former G.S. 15-152 permitting consolidation of charges “for two or more transactions of the same class of crimes or offenses.” However, that clause could arguably apply to offenses which have no connection other than being of the same class. In any event, we hold that the nature of the offenses is one of the factors which may properly be considered in determining whether certain acts or transactions constitute “parts of a single scheme or plan,” as those words are used in present G.S. 15A-926(a).

In defendant’s trial we find

No error.

Judges Martin and Arnold concur.