State v. Street

262 S.E.2d 365 (1980)

STATE of North Carolina v. Eugene Ollie STREET.

No. 7917SC671.

Court of Appeals of North Carolina.

February 5, 1980.

*367 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

W. Osmond Smith, III, Yanceyville, for defendant-appellant.

CLARK, Judge.

The defendant contends that the trial court should not have granted the State's motion for joinder of the offenses because the State did not present the motions of a timely manner. We do not agree. N.C. Gen.Stat. § 15A-952(a) provides the general rule for determining when pretrial motions may be made:

"(a) Any defense, objection, or request which is capable of being determined without the trial of the general issue may be raised before trial by motion."

The time limitations provided in subsections (b)(6)e, and (c) of N.C.Gen.Stat. § 15A-952 do not apply because these two subsections jointly refer to N.C.Gen.Stat. § 15A-926(c) which relates to timeliness of a motion by a defendant for a joinder of offenses against him. Furthermore, even if a statutory time limitation for a motion for joinder by the State existed, subsections (b) and (e) of N.C.Gen.Stat. § 15A-952 have provisos which allow the court to consider the motion at a later time.

We hold that the trial judge in the instant case acted wholly within the permissible range of his discretion when he granted the State's motion for joinder. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978); State v. Williams, 41 N.C.App. 287, 254 S.E.2d 649 (1979). The defendant's brief admits that the defendant was prepared to go to trial in December 1978, on three of the charges. The trial was not held until February 1979. The defendant had over two months to prepare for the two additional charges brought against the defendant in December. Also, there is nothing in the record showing that the defendant, after the joinder of the offenses, moved for a continuance so that a new trial strategy could be planned.

*368 The defendant's next contention is that the trial court erred in allowing the motion to join the indictments because the alleged acts charged in the instant case were distinct and separate and therefore not a part of a general scheme or plan within N.C.Gen.Stat. § 15A-926(a), which provides as follows:

"(a) Joinder of Offenses.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. Each offense must be stated in a separate count as required by G.S. 15A-924." (Emphasis added).

The test we must apply is "whether the offenses alleged are so separate in time or place and so distinct in circumstances as to render a consolidation unjust and prejudicial to defendant." State v. Johnson, 280 N.C. 700, 704, 187 S.E.2d 98, 101 (1972). We, like the defendant, can find no case in this jurisdiction where acts allegedly committed by a defendant five months apart were held to be parts of a single scheme or plan. Nonetheless, each of the offenses for which the defendant was charged allegedly occurred at the same place and under the same circumstances. All of the victims were members of the same family. The evidence tended to show that these incidents and similar incidents continued for a long period of time, and that the defendant sexually abused his children virtually each time his wife left the defendant home alone with the children. In each instance the defendant used his parental control over the children to force them to comply with his sexual desires. Consequently, we think that even though the time period between some of the acts was substantial, the acts were nonetheless so similar in circumstance and place as not to render the consolidation of the offenses prejudicial to the defendant. We also note that all of the offenses involved sexual abuses of stepchildren, and although N.C.Gen.Stat. § 15A-926 does not permit joinder of offenses solely on the basis that they are the same class, the nature of the offenses is a factor which may properly be considered in determining whether certain acts constitute parts of a single scheme or plan. State v. Greene, supra.

Similarly, the trial court did not err in admitting testimony as to other crimes or bad acts because the evidence all went toward showing that the defendant had the intent to commit sexual crimes and that his actions were part of a broader scheme, plan or design to perpetrate these crimes upon his stepchildren at times when he was left alone with them. The Supreme Court of this State has been quite liberal in admitting evidence of similar sex crimes, State v. Greene, supra, and we see no reason in the instant case to diverge from the Supreme Court's liberal evidentiary rulings in cases involving sexual assaults.

No error.

ARNOLD and ERWIN, JJ., concur.