State v. Cummings , 103 N.C. App. 138 ( 1991 )

404 S.E.2d 496 (1991) 103 N.C. App. 138

STATE of North Carolina
v.
Marvin Anthony CUMMINGS.

No. 9018SC732.

Court of Appeals of North Carolina.

June 4, 1991.

Attorney General Lacy H. Thornburg, by Asst. Atty. Gen., Douglas A. Johnston, Raleigh, for the State.

Anne B. Lupton, Asst. Public Defender, Greensboro, for defendant-appellant.

EAGLES, Judge.

Defendant first contends that the trial court erred in denying his motion to sever the offenses for trial and in overruling his objection to joinder. We disagree.

G.S. 15A-926(a) provides:

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.

Joinder motions are addressed to the discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. State v. Ruffin, 90 N.C.App. 712, 370 S.E.2d 279 (1988). Our task on appeal is to determine "whether the offenses are so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial to the defendant." State v. Fultz, 92 N.C. App. 80, 83, 373 S.E.2d 445, 447 (1988) (quoting State v. Corbett, 309 N.C. 382, 389, 307 S.E.2d 139, 144 (1983)).

Here, the trial court could find from the evidence a scheme or plan to deprive motel occupants of their property while they were asleep. All of the offenses took place within two months of each other at motels in Greensboro. All of the crimes occurred in the early morning hours. In each instance someone entered an occupied motel room by stealth while the occupants were asleep. In two of the cases, personal property was taken and the third was interrupted by the victim being awakened. Additionally, in two cases, the victims identified the burglar as a young, black male wearing jogging pants and a baseball cap, who escaped on foot. We hold that this evidence is sufficient to establish a common scheme or plan. Accordingly, we hold that the trial court did not err in joining the three offenses for trial.

Additionally, we note that even if the motion to sever had been allowed and each offense had been tried separately, evidence of the other two offenses would have been admissible at each trial to show both a common scheme or plan and identity. "The test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not too remote in time so as to be more probative than prejudicial and under the balancing test of G.S. 8C-1, Rule 403." State v. Schultz, 88 N.C. App. 197, 202, 362 S.E.2d 853, 857 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988). In State v. McClain, 240 N.C. 171, 176, 81 S.E.2d 364, 367 (1954), the Supreme Court said: "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." G.S. 8C-1, Rule 404(b) is consistent with prior North Carolina practice. State v. Belton, 77 N.C. App. 559, 335 S.E.2d 522 (1985). Here, the evidence establishes a similar modus operandi in all three cases. Over a two month period, someone by stealth broke into three occupied motel rooms in Greensboro. Each incident occurred during the early morning while the victims were asleep.

Evidence of other offenses is admissible to establish identity if the other acts contain "similarities [that] support the reasonable inference that the same person committed both the earlier and the later crimes." State v. Green, 321 N.C. 594, 604, 365 S.E.2d 587, 593, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235 (1988). In each case, there was a connection between the defendant and the acts the prosecution sought to introduce against him. The connection was probative of defendant's identity and admissible. In 89-CRS-57553 (the Reaves case), defendant fit the general description given by Mrs. Reaves' daughter. Police found a key to the Reaves' motel room in defendant's home. In 89-CRS-57552 (the Keeton case), a charge on which defendant was not convicted, police found banking slips belonging to the Keetons in the car defendant was driving. Finally, in 89-CRS-57619 (the Halsema case), the victim identified the defendant as the person who had come into his room during the early morning hours of 1 September 1989.

Defendant next argues that the trial court erred in denying his motion to dismiss the burglary charge in the Reaves case for insufficient evidence. This argument is without merit. To withstand a motion to dismiss, there must be substantial evidence of all material elements of the offense. It is irrelevant whether the evidence is circumstantial or direct, or both. State v. Minor, 290 N.C. 68, 224 S.E.2d 180 (1976). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). On a motion for nonsuit the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable inference that the jury may legitimately draw from the evidence. State v. Jackson, 306 N.C. 642, 295 S.E.2d 383 (1982).

Here, defendant was linked to the 8 July 1989 burglary by the testimony of Mrs. Reaves' daughter. She described the suspect as a young, black man, approximately six feet tall, wearing dark sweatpants, no shirt, and a baseball cap turned backwards. On 1 September 1989 the police found a key imprinted with the number "213" in defendant's home which he shared with his girl friend. The hotel manager testified that the key in fact opened Room 213, where Mrs. Reaves and her daughters were sleeping in the early morning of 8 July 1989. Defendant's girl friend testified that she had never stayed at this motel. This evidence, though circumstantial, is sufficient to withstand defendant's motion for nonsuit. Accordingly, this assignment of error is overruled.

Defendant also argues that the trial court should have granted defendant's motion for nonsuit in the Halsema case. Defendant contends that the evidence does not give rise to the inference that the person who entered Mr. Halsema's room intended to commit larceny. Defendant relies on State v. Hankins, 64 N.C.App. 324, 307 S.E.2d 440 (1983), aff'd, 310 N.C. 622, 313 S.E.2d 579 (1984), where this Court held that the State's evidence was insufficient to submit to the jury the question of whether defendant intended to commit larceny. We think Hankins is distinguishable. In Hankins there was some evidence to rebut the presumption of felonious intent that arises when there is an unauthorized entry at night and flight upon discovery. In the absence of other intent or explanation for a breaking or entering in the nighttime, it can be inferred that the intent is to commit a larceny. State v. Goodman, 71 N.C.App. 343, 322 S.E.2d 408 (1984), disc. rev. denied, 313 N.C. 333, 327 S.E.2d 894 (1985). Here, no explanation was offered for defendant's presence in Mr. Halsema's motel room at 1:30 a.m.

For the reasons stated, we find no error.

No error.

PHILLIPS and WYNN, JJ., concur.