State v. WilliamsAnnotate this Case
302 S.E.2d 441 (1983)
STATE of North Carolina, v. Ronald Eugene WILLIAMS.
Supreme Court of North Carolina.
May 3, 1983.
*444 Rufus L. Edmisten, Atty. Gen. by Asst. Atty. Gen. W. Dale Talbert, Raleigh, for the State.
Donald R. Dickerson, Hillsborough, for defendant.
Defendant combined his first two assignments of error and contends that the pre-trial identification of him by the victim was impermissibly suggestive giving rise to a substantial likelihood of an irreparable misidentification. As a result, the defendant argues that both the pre-trial identification and the in-court identification of him by the victim should have been excluded at trial. We do not agree.
The defendant maintains that the pre-trial photographic line-up was unnecessarily suggestive because; (1) he was available for a live line-up; (2) only the defendant's photograph resembled the description of the assailant provided by the victim; (3) the police made comments to the victim suggesting that a photograph of her assailant was in the line-up; and (4) because the circumstances surrounding the victim's observation of her assailant during the course of the crimes made any identification unreliable. Justice Branch (now Chief Justice) in State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death penalty vacated, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205 (1976) said that, "(t)he test under the due *445 process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice." 285 N.C. at 9, 203 S.E.2d at 16.
The trial court found that the out-of-court identification procedures were not so unnecessarily suggestive and conducive to irreparable mistaken identity as to constitute a denial of due process. We have carefully examined the record, the briefs, the transcript and the pre-trial photographic array viewed by the victim and find that the trial court's ruling is supported by overwhelming competent evidence. We are bound by the trial court's ruling. State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1982). As a result defendant's assignments of error numbers one and two challenging the admission of the victim's pre-trial and in-court identification is overruled.
In his third assignment of error the defendant maintains that the trial judge abused his discretion by allowing all the indictments against him to be joined for trial and by failing to allow his motions for severance. The joinder of all the indictments against the defendant was allowed by the trial court pursuant to G.S. 15A-926(a) which provides:Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies, 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. (Emphasis added.)
In reviewing the propriety of the joinder of these charges for trial we must look to see if the trial judge abused his discretion. State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981). In the case sub judice, the charges were consolidated for trial on the grounds that each crime was a part of a series of transactions constituting a single scheme. In State v. Silva, supra, we held that in order for "offenses to be joined, there must be a `transactional connection' common to all." 304 N.C. at 126, 282 S.E.2d at 452. See also State v. Powell, 297 N.C. 419, 255 S.E.2d 154 (1979).
The record in this case reveals an obvious "transactional connection" between the October 2 offenses and the October 28 offenses. On both occasions the crimes were committed against the same victim, in the same apartment at approximately the same time of night. The defendant gained entry to the apartment each time through an open window and committed a single act of intercourse with the victim. On both occasions the defendant effectuated his assault without the use of a weapon and he allowed the victim to take contraceptive measures on both occasions. In addition, the victim testified that the defendant told her he had watched her from outside the house on several nights between the two assaults. We, therefore, hold that the trial court properly joined all charges for one trial.
The defendant moved for a severance before and during the trial. G.S. 15A-927(b) provides:The court, ... on motion of the defendant, must grant a severance of offenses whenever: (1) If before trial, it is found necessary to promote a fair determination of the defendant's guilt or innocence of each offense; or (2) If during trial, ... it is found necessary to achieve a fair determination of the defendant's guilt or innocence of each offense....
The defendant contends the trial judge should have allowed his motions for severance because the consolidation of these charges prejudiced him. He argues that presenting so many charges against him at one trial tended to make the jury infer to him a criminal disposition and that the proof of one crime might have been used to convict him of another crime. These contentions are meritless.
The general rule in North Carolina is that proof of another distinct crime is not *446 admissible against a defendant at trial even though it is of the same nature as the crime for which he is being tried. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980). "However, such evidence is competent to show `the quo animo, intent, design, guilty knowledge, or scienter...." State v. Humphrey, 283 N.C. 570, 572, 196 S.E.2d 516, 518 (1973). If the charges in this case had not been consolidated, the evidence of defendant's presence in the victim's apartment on 2 October 1976 would have been relevant and admissible in a trial on the charges arising from defendant's presence in her apartment on 28 October 1976, and vice versa. Such evidence would be admissible to show intent or design, State v. Humphrey, supra, and to show a common plan or scheme. State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). The defendant has failed to show any prejudice to him as a result of the trial judge's decision to consolidate all charges for trial and to deny his motion for severance. This assignment of error is overruled.
The defendant next contends that we should overrule our holding in State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) where we held that G.S. 15A-903 and G.S. 15A-904 do not require the State to disclose its witnesses' statements prior to trial. Defendant argues that he was denied his constitutional right to confront those witnesses against him as provided by the Sixth and Fourteenth Amendments to the United States Constitution because without the victim's statement he was unable to "confront" his accuser. The record indicates that the trial court allowed defense counsel's motion for a recess prior to the cross-examination of the victim so that the defense counsel could review the victim's statement. As a result, defense counsel conducted an extensive cross-examination of the victim. We refuse to overrule our decision in State v. Hardy, supra, and find that the defendant was provided sufficient opportunity to confront the witness. This assignment of error is overruled.
In his fifth assignment of error the defendant argues that the trial court abused its discretion by admitting testimony by the victim as to when the defendant entered her apartment on 2 October 1976. The basis of this contention is that since the victim stated on cross-examination that she was not sure when the defendant entered her apartment, she should not have been permitted to testify on re-direct examination that she knew, within a few minutes, when he entered the apartment because that testimony was mere speculation and conjecture. We note that the cross-examination of the victim was leading and did not reveal an inability by her to testify to the approximate time of the defendant's entry into her apartment. On re-direct examination the victim indicated that she knew, within a few minutes, when the defendant entered her apartment. As a result, we do not find that the victim's testimony on re-direct examination was based on speculation and conjecture. We, therefore, overrule this assignment of error.
The defendant next maintains that the trial court erred by denying his motion to dismiss the first degree burglary indictment because the State failed to establish that the apartment was entered during the nighttime while occupied by the victim. In order to withstand a motion to dismiss the State must present substantial evidence of each essential element of the crime charged. However, "(t)he evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendement and every reasonable inference to be drawn therefrom...." State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1979).
The State's evidence tended to show that the victim arrived home on 2 October 1979 around 11:30 p.m. and that she noticed a bedroom window had been opened. She also testified that a search of her residence revealed the presence of no one other than herself but that the defendant entered her apartment shortly after her arrival. We take judicial notice that 11:30 *447 p.m. is after dark in North Carolina. In addition, the victim testified the defendant entered her apartment on 2 October 1976 while she was present. There is substantial evidence both that the entry was effectuated after dark and while the apartment was occupied. This assignment of error is overruled.
The defendant, in his next assignment of error, maintains that the trial court should have dismissed the kidnapping indictment because the acts which form the basis of the kidnapping charge were also a necessary and integral part of the 2 October 1976 rape charge. In State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978) we recognized that a kidnapping charge cannot be sustained if based upon restraint which is an inherent feature of another felony. However, "there is no constitutional barrier to the conviction of a defendant for kidnapping, by restraining his victim, and also of another felony to facilitate which such restraint was committed, provided the restraint, which constitutes the kidnapping, is a separate, complete act, independent of and apart from the felony." State v. Fulcher, 294 at 524, 243 S.E.2d at 352. (Emphasis added.)
Defendant argues that the time which he restrained the victim was necessary for him to prepare for the sex act. The test established in Fulcher does not look at the restraint necessary to commit an offense, rather the restraint that is inherent in the actual commission of the offense. The evidence in this case reveals that the defendant restrained the victim for a period of several hours in her home. During that time the defendant forced the victim to sit in the living room and to accompany him to the kitchen so that the defendant could get something to drink. Neither of these restraints is inherent in the crime of rape. As a result, there was substantial evidence of restraint to support the conviction of kidnapping separate and apart from the restraint inherent in the crime of rape. This assignment of error is overruled.
The defendant feebly argues that the trial court should have dismissed all charges against him because the State failed to produce substantial evidence that he was the perpetrator of the crimes. The record indicates that there was overwhelming evidence to support the State's contention that the defendant perpetrated the crimes. This assignment of error is summarily overruled.
In his final assignment of error the defendant argues that the trial court erred by denying his motions for a directed verdict of not guilty and for dismissal of the second degree burglary charge. The basis of this contention is that the State failed to produce substantial evidence that the defendant entered the apartment on 28 October 1976 after dark. This argument lacks merit. The victim testified that she left her apartment between 6:30 p.m. and 7:30 p.m. and she thought it was dark at that time. She further testified that when she returned home around 11:00 p.m. the defendant was present in her bedroom and he told her he had entered the apartment about 7:30 p.m. In viewing the evidence in the light most favorable to the State and allowing every reasonable inference to be drawn from that evidence, State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114 (1979), we hold that there was substantial evidence to support the State's contention that the defendant entered the apartment after dark on 28 October 1976. This assignment of error is overruled.