State v. Berryman

JOHNSON, Judge.

The issues on this appeal are whether the court erred: (1) by consolidating the offenses occurring on 6 August 1982 and 26 July 1983 for trial; (2) by refusing to give an instruction on prior inconsistent statements; and (3) by denying defendant’s motion to dismiss the first degree burglary charge. For the following reasons, we find no prejudicial error.

The first issue we address is whether the court erred by consolidating the offenses occurring on 6 August 1982 and 26 July 1983 for trial. G.S. 15A-926(a) allows the consolidation of two or more offenses for trial “when the offenses . . . 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.” Thus, there must be a transactional connection in order to permit consolidation of offenses. State v. Silva, 304 N.C. 122, 282 S.E. 2d 449 (1981). A court’s order denying a motion to sever and ordering the consolidation of offenses for trial will not be overturned absent a showing of an abuse of discretion. State v. Bracey, 303 N.C. 112, 277 S.E. 2d 390 (1981).

The evidence in the present case is remarkably similar to the evidence in State v. Williams, 308 N.C. 339, 344, 302 S.E. 2d 441, 445 (1983), in which the Supreme Court found an “obvious ‘transactional connection’ ” between offenses committed on separate dates. In Williams, the Court noted that both occasions the crimes were committed against the same person, in the same apartment at approximately the same time at night; entry was gained through an open window and a single act of intercourse was committed; the defendant was not armed; and the victim was allowed to take contraceptive measures. In the present case the crimes were committed on both occasions against the same victim in the same house in the same bed at approximately the same time of *399evening. On both occasions, entry was gained through a window and the victim was forced to engage in repeated acts of intercourse. The perpetrator was not armed on either occasion. In addition, the perpetrator identified himself on both occasions as Robert Williams, and upon his departure told the victim he was going to New Orleans and for her to replace or remove an item at or near the alleged point of entry. We hold the foregoing evidence established the requisite transactional connection to permit consolidation. We therefore find no abuse of discretion by the trial court.

The next issue is whether the court erred by refusing to give an instruction on prior inconsistent statements. Defendant argues the instruction should have been given because the prosecutrix’s testimony at trial differed from a statement she had given police officers after the 1982 incident in two respects: (1) at trial she testified her assailant was between 5'5" tall and 5'7" tall while she stated in her statement that her assailant was six feet tall or more; and (2) at trial she testified her assailant identified himself as “Robert Williams” during the first incident while in her statement she only said he identified himself as “Robert.” Assuming arguendo that these omissions or discrepancies constituted inconsistent statements requiring the giving of the requested instruction, we hold the error was not prejudicial in view of the overwhelming evidence of defendant’s guilt of the charges arising out of the later incident. Significantly, defendant was acquitted of the charges arising out of the first incident to which the alleged inconsistencies related.

The remaining issue is whether the court erred in denying defendant’s motion to dismiss the burglary charge arising out of the second incident. He concedes there was sufficient evidence of an entry but contends there was insufficient evidence of a breaking. We disagree that there was insufficient evidence of a breaking. Taken in the light most favorable to the State, the evidence tended to show that locks had been installed in all windows except one, which was nailed shut; that painters had removed the nail from this window and had not replaced it; that defendant told the prosecutrix to remove a chair under a bush near this window; that the screen from this window was found on the ground the next day; and that a chair was found outside under this window *400the next day. From this evidence the jury could infer defendant broke and entered through this window.

For the foregoing reasons, we hold defendant received a fair trial free from prejudicial error.

No error.

Judges Eagles and Parker concur.