State v. McClainAnnotate this Case
193 S.E.2d 108 (1972)
282 N.C. 357
STATE of North Carolina v. Horace Ray McCLAIN.
Supreme Court of North Carolina.
December 13, 1972.
*110 Twiggs & McCain, by Grover C. McCain, Jr., Raleigh, for defendant appellant.
Robert Morgan, Atty. Gen., Sidney S. Eagles, Jr., and Russell I. Walker, Jr., Asst. Attys. Gen., for the State of North Carolina.
Defendant preserves and presents twelve assignments of error, most of which are groundless and merit no discussion. It was competent for the victim to testify that a metal object, initially thought to be a knife but later ascertained to be a metal teasing comb, was held against her neck by her assailant. It was likewise competent for her to describe the car in which she was raped. Officers Perry and Martin were properly permitted, for corroborative purposes, to testify to Miss Elliott's prior consistent statements to them concerning the make, year, model, color and other identifying characteristics of the vehicle. Evidentiary rules establishing the competency of these matters are so well established as to require no citation of authority. All assignments of error addressed to them are overruled without discussion.
This case turns upon whether the court erred (1) in admitting the testimony of Mrs. Patricia Conklin and Officers Gray and Harley relating to defendant's subsequent commission of a similar abduction involving Mrs. Conklin and (2) in denying defendant's motion for nonsuit at the close of the State's evidence.
Defendant strongly contends that all testimony of Mrs. Patricia Conklin and Officers Gray and Harley should have been excluded by the court since its only relevancy was to show that defendant had committed another distinct, independent, separate *111 crime. We now examine the validity of that contention.
It is a general rule of evidence that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. Exceptions to this general rule of inadmissibility, as well recognized as the rule itself, are discussed and documented in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). The fourth and sixth exceptions are stated in McClain as follows:"4. Where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged." [Citations omitted] "6. Evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. [Citations omitted] Evidence of other crimes receivable under this exception is ordinarily admissible under the other exceptions which sanction the use of such evidence to show criminal intent, guilty knowledge, or identity."
Stansbury formulates the rule in these words: "Evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime." Stansbury, N. C. Evidence, § 91 (2d ed. 1963); State v. Choate, 228 N.C. 491, 46 S.E.2d 476 (1948).
It now becomes our duty to determine whether the testimony of Mrs. Patricia Conklin and Officers Gray and Harley tends to identify defendant as the man who raped Miss Elliott, or tends to establish a common plan or scheme. If so, evidence of defendant's attack upon Mrs. Conklin was properly admitted in the trial of this case; otherwise not.
Examination of the circumstances surrounding the attack upon Miss Elliott on 13 October 1971 and the attack upon Mrs. Conklin on 19 October 1971 reveals the following similarities: (a) Both attacks were late at night on a lone woman; (b) Miss Elliott's assailant told her, "If you scream I'll kill you," and defendant told Mrs. Conklin the same thing; (c) Miss Elliott's assailant held a metal teasing comb to her throat, and defendant stuck a metal teasing comb to the throat of Mrs. Conklin; (d) defendant used Mrs. Conklin's car in her abduction, and Miss Elliott's assailant intended to use her car, using his own only after he became convinced she did not have a vehicle; (e) Miss Elliott's assailant parked his car some distance from the parking lot where he accosted her, and defendant's car was found parked about fifty yards from where he abducted Mrs. Conklin; (f) the make, model and color of defendant's car coincided with the description of the car in which Miss Elliott was raped; (g) defendant's car had a floor mat with the French fleur-de-lis design on it, and so did the car in which Miss Elliott was raped; and (h) two light-colored furry cats were hanging from the rear-view mirror in the car in which Miss Elliott was raped, and two light-colored furry cats were found in the trunk of defendant's car. We further note that defendant sought to conceal the color and whereabouts of his car, saying it was black and in his brother's possession at Fuquay, when in fact it was yellow and parked within fifty yards of the point where he had abducted Mrs. Conklin.
The enumerated similarities tend to show a modus operandi, a common plan embracing the commission of both crimes, and also establish a chain of circumstantial *112 evidence tending to identify defendant as the man who raped Miss Elliott. Thus, evidence of the Conklin offense was admissible and should not be rejected because it incidentally proves defendant guilty of another crime. Its logical relevancy to the rape of Miss Elliott is obvious. The trial judge instructed the jury to consider such evidence "only as it relates to the identity of the defendant, Horace Ray McClain," as the man who raped Miss Elliott on 13 October 1971. It was competent on the question of identity and properly admitted. Stansbury, N. C. Evidence, § 91 (2d ed. 1963); State v. McClain, supra (240 N.C. 171, 81 S.E.2d 364); State v. Fowler, 230 N.C. 470, 53 S.E.2d 853 (1949); State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944). Defendant's assignments of error addressed to the alleged incompetency of this evidence are overruled.
On motion for nonsuit, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971); State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969). When the evidence here is so considered, it gives rise to the permissible inference that Miss Elliott was raped on the night of 13 October 1971 and that the defendant was the perpetrator, and affords a reasonable basis upon which the jury might so find. "Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled." State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). When considering a nonsuit motion, the court is not concerned with the weight of the testimony but only with its sufficiency to carry the case to the jury and sustain the indictment. State v. Primes, supra; State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). When tested by these principles, the State's evidence was sufficient to carry the case to the jury. The motion for compulsory nonsuit was properly denied.
Defendant's motions to set aside the verdict and for a new trial are merely formal and require no discussion. Such motions are addressed to the sound discretion of the trial court, and refusal to grant them is not reviewable. State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Reddick, 222 N.C. 520, 23 S.E.2d 909 (1943).
Finally, defendant assigns as error the denial of his motion in arrest of judgment. Judgment may be arrested when, and only when, some fatal error or defect appears on the face of the record proper. State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966). When based on such defect, the motion may be made at any time. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). "The record proper in any action includes only those essential proceedings which are made of record by the law itself, and as such are self-preserving. [Citations omitted] The evidence in a case is no part of the record proper. [Citations omitted] In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment." State v. Gaston, 236 N.C. 499, 73 S.E.2d 311 (1952). Ordinarily, the record proper in criminal cases consists of (1) the organization of the court, (2) the charge (information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment. State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669 (1971). Since examination of the record proper reveals no error of law, defendant's motion in arrest of judgment was properly denied.
In the trial, verdict and judgment we find