State v. Herring

328 S.E.2d 23, 74 N.C. App. 269, 1985 N.C. App. LEXIS 3425
CourtCourt of Appeals of North Carolina
DecidedApril 16, 1985
Docket8413SC888
StatusPublished
Cited by6 cases

This text of 328 S.E.2d 23 (State v. Herring) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Herring, 328 S.E.2d 23, 74 N.C. App. 269, 1985 N.C. App. LEXIS 3425 (N.C. Ct. App. 1985).

Opinions

HEDRICK, Chief Judge.

Defendants argue that the trial court erred in denying their motions to dismiss the charges against them based on insufficiency of the State’s evidence. Viewed in the light most favorable to the State, the evidence tends to show that on 19 July 1983, the defendants, along with Mark Watts, David Stowell and Darrell [271]*271Wooten, met in defendant Meyer’s home in Leland, North Carolina. Defendant Meyer suggested going to Wilmington to “roll a queer.” Departing in three vehicles, the men proceeded to the Front Street area. Mark Watts met the victim, Donnie Canady, in this area, and suggested that Mr. Canady follow him home. Watts then drove toward the Leland community and turned off the paved road onto a dirt road, with Canady following behind. Defendants Herring and Meyer then pulled in behind Canady. Canady attempted to turn around and pull back onto the paved road when the second vehicle pulled in behind his car, but Herring discharged a gun into his vehicle. Canady was pulled from his car and both Herring and Meyer struck him. Canady fell down an embankment and ran into the woods. When Canady returned to his vehicle with a Deputy Sheriff, he discovered that several items of personal property had been removed from his vehicle.

On the evening of 29 August 1983, the defendants, along with Darrell Wooten and Timothy Efird, again met in Meyer’s home. Defendant Meyer suggested going to Wilmington to “roll a queer.” Departing in two cars, the men proceeded to the Front Street area. Defendants Meyer and Herring met James Hayes, the victim, in this area and suggested that he follow them toward Southport. Defendants then drove toward Southport and turned off the paved road onto a dirt road. The two remaining men pulled in behind Hayes. Defendant Herring pulled out a gun and fired into the vehicle. When Hayes got out of his vehicle, the entire group struck him until he was unconscious. Hayes eventually regained consciousness to discover his wallet, checkbook, diamond ring, gold necklace and car keys were missing.

Both defendants contend that “there exists no evidence that any force or intimidation by the use of firearms was used for the purpose of taking personal property from the person or presence of Donnie Canady.” This contention is untenable. The evidence tends to show that defendant Herring discharged a gun into the Canady vehicle, that the occupant fled the scene, and that several items of personal property were missing from the vehicle when he returned. “[I]f the force or intimidation by the use of firearms for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the property in a continuous course of conduct, the taking is from the ‘presence’ of the victim.” [272]*272State v. Clemmons, 35 N.C. App. 192, 196, 241 S.E. 2d 116, 119, disc. rev. denied, 294 N.C. 737, 244 S.E. 2d 155 (1978). We hold there was sufficient evidence to go to the jury on the charge of armed robbery allegedly occurring on 19 July.

Defendant Herring contends there was no evidence that he ever took any property from either Canady or Hayes. This contention is meritless. There was an abundance of evidence from which the jury could conclude that defendant Herring acted in concert with defendant Meyer and others in perpetrating the robberies charged. Defendant Herring was present at the scene and actively participated in the events leading up to the robberies. State v. Dowd, 28 N.C. App. 32, 220 S.E. 2d 393 (1975). This assignment of error is overruled.

Defendants next contend the court erred in allowing the State’s motion for joinder of offenses and in denying defendants’ motions for severance of offenses. G.S. 15A-926(a) provides that offenses may be joined for trial if they 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.

Defendants concede that the offenses arising out of the events occurring 19 July 1983 were properly joined for trial, and that the offenses alleged to have occurred on 29 August 1983 also could be properly tried together. Defendants argue, however, that the offenses occurring on these two dates, forty-one days apart, were improperly joined, to their prejudice. We do not agree.

We note at the outset that all of the charges did not arise out of “the same act or transaction,” and thus joinder on this basis would be improper. Nor did the offenses constitute “parts of a single scheme or plan.” Indeed, if the evidence unequivocally disclosed a single scheme or plan, defendants’ convictions of two counts of conspiracy could not stand. We thus turn our consideration to whether the offenses in question may be said to have arisen out of “a series of acts or transactions connected together.”

Our courts have repeatedly held that offenses are properly joined under G.S. 15A-926(a) only when there exists a “transactional connection” among the charges. See, e.g., State v. Powell, 297 N.C. 419, 255 S.E. 2d 154 (1979); State v. Greene, 294 N.C. 418, [273]*273241 S.E. 2d 662 (1978). While the court’s ruling on a motion for joinder is reviewable only for abuse of the court’s discretion, State v. Clark, 301 N.C. 176, 270 S.E. 2d 425 (1980), “where there is a serious question of prejudice resulting from consolidation for trial of two or more offenses, the appropriate function of appellate review is to determine whether the case meets the statutory requirements.” State v. Wilson, 57 N.C. App. 444, 448, 291 S.E. 2d 830, 832, disc. rev. denied, 306 N.C. 563, 294 S.E. 2d 375 (1982). In considering whether a “transactional connection” exists among offenses, our courts have taken into consideration such factors as the nature of the offenses charged, State v. Effler, 309 N.C. 742, 309 S.E. 2d 203 (1983), “commonality of facts,” State v. Bracey, 303 N.C. 112, 117, 277 S.E. 2d 390, 394 (1981), the lapse of time between offenses, State v. Clark, 301 N.C. 176, 270 S.E. 2d 425 (1980), and the unique circumstances of each case, State v. Boykin, 307 N.C. 87, 296 S.E. 2d 258 (1982).

In the instant case, the record discloses that the charges joined for trial are of the same nature, and that the offenses occurring on 19 July and on 29 August involved similar facts. We note, however, that unlike virtually all of the cases in which joinder has been upheld by our courts, the offenses are separated by a significant period of time. We note further that the record reflects no connection between the offenses apart from the factual similarities. While factual similarities, and the nature of the offenses charged as being of the same class, was once all that was required for joinder, see former G.S. 15-152 (repealed 1973), this is no longer the case. State v. Corbett, 309 N.C. 382, 307 S.E. 2d 139 (1983). Because we find the offenses occurring on 19 July 1983 and those occurring on 29 August 1983, although factually similar, to be separate and distinct in time and circumstance, and thus without transactional connection, we hold the court erred in granting the State’s motion to join the offenses for trial. We do not agree, however, with defendants’ contention that joinder was prejudicial to defendants. Had the error not occurred, evidence of the offenses occurring on one date would clearly have been admissible, on the issue of intent, at trial on the offenses occurring on the other date. State v.

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State v. Herring
328 S.E.2d 23 (Court of Appeals of North Carolina, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
328 S.E.2d 23, 74 N.C. App. 269, 1985 N.C. App. LEXIS 3425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herring-ncctapp-1985.