(dissenting).
The majority hold there was sufficient evidence to sustain the conviction of defendant for burglarizing the jewelry store. I agree. The majority hold there is insufficient evidence to sustain defendant’s conviction for burglarizing Home Builders Supply. I disagree. The majority reverse defendant’s conviction for the jewelry store burglary on the basis that trial of the two burglary charges should have been severed. I disagree.
Evidence connecting defendant with Home Builders Supply burglary.
When arrested, defendant had in his possession a pocketknife of the brand and model sold by Home Builders Supply. Within the jewelry store various tools were found that had Home Builders price tags on them. At trial, the manager of Home Builders Supply was unable to state that the pocketknife or the tools were taken in the burglary of Home Builders Supply. The majority seize on the inability of the manager to make positive identification to eliminate the pocketknife and tools as evidence connecting defendant with the Home Builders Supply burglary.
The following demonstrates that the majority failed to consider all of the evidence.
(a) The manager testified that an inventory was made of items missing after the burglary. He did not bring his copy of the inventory to the trial, but did testify that some of the items in evidence (the pocketknife and the tools) matched the description of items “ * * * that showed up missing in * * * [the] inventory.”
(b) With respect to the pocketknife, Officer Thompson testified that he was furnished a list of items taken in the burglary, that this list was included in his investigative report and that a pocketknife of the same brand and model found in defendant’s possession was one of the items reported as missing. Defendant complains that Officer Thompson’s testimony was erroneously admitted, but the objection raised on appeal was never presented to the trial court. It will not now be considered. State v. Williams, 83 N.M. 477, 493 P.2d 962 (Ct.App.1972).
(c) A photograph in evidence shows the glass on the knife display case at Home Builders Supply had been broken and there is evidence this occurred in the burglary.
(d) The tools with Home Builders Supply price tags, found in the jewelry store, are characterized by the majority as “ * * * secondhand * * *, the extent of which use was unknown. * * * ” While this statement may be technically correct, it disregards the fact that the tools are in evidence and were viewed by the jury and that a view of the tools did not require the jury to characterize the tools as .the majority does. The tools are little scratched, there are no sweat marks on the handles and their appearance would support an inference of being little used— specifically, their appearance is that of new tools used only once.
The manager testified the wall of Home Builders Supply was of block and the FBI witness testified the dust on defendant’s clothing was consistent with dust from block walls. The method of entry in both burglaries was the same; holes were knocked through walls. The majority characterize the dust and the method of entry as no more than suspicion. If these two items stood alone I would agree, but they do not stand alone.
Further, an item not discussed by the majority in connection with the Home Builders Supply burglary is that there is sufficient evidence to sustain defendant’s conviction for burglary of the jewelry store.
On review, we are to view the evidence in the light most favorable to the verdict. State v. Sedillo, 82 N.M. 287, 480 P.2d 401 (Ct.App.1971). Applying this rule, there is evidence that defendant burglarized the jewelry store. This connects defendant with the little used tools, bearing Home Builders Supply price tags, which were of the same description as some of the tools taken in the burglary of Home Builders Supply. In addition, defendant possessed a pocketknife of the same brand and model listed as taken in the burglary of Home Builders Supply. Further, defendant entered the jewelry store by knocking a hole in a block wall; Home Builders Supply was entered in the same way. Finally, the dust on defendant’s clothes was consistent with dust from block walls.
In my opinion, the foregoing evidence is sufficient to sustain the conviction of defendant for the Home Builders Supply burglary.
Severance.
Prior to trial, defendant moved for separate trials on the two burglary charges on the basis that: “ * * * two or more separate and distinct felonies occuring [sic] at different times and places and relating to property belonging to different owners may not be jointly tried over Defendant’s objection.” The hearing on this motion consisted of arguments of counsel. At that hearing, the State referred to items of evidence it intended to introduce and asserted it would rely on a “common scheme or plan.” With this record, the trial court did not err in denying defendant’s motion, even under State v. Paschall, 74 N.M. 750, 398 P.2d 439 (1965).
By motion subsequent to trial, defendant again raised the severance issue, asserting the trial court “ * * * erred in trying the two separate and distinct charges together at the same trial.” The majority opinion does not make it clear which of defendant’s motions raised the severance issue for appellate review. In my opinion, the issue is before us on the basis of the post-trial motion.
In holding there should have been a severance, the majority rely, in part, on commentaries from the American Bar Association Standards of Criminal Justice. Their authority for doing so is a specially concurring opinion in State v. Silver, 83 N.M. 1, 487 P.2d 910 (Ct.App.1971). The specially concurring opinion considered the American Bar Association Standards as authoritative because the Standards had been approved in Colorado “ * * * and may be approved by the Supreme Court of New Mexico. * * * ” (Our emphasis). This bootstrap attempt at giving áuthority to the Standards in New Mexico is erroneous. The New Mexico Supreme Court has not adopted the American Bar Association Standards. Instead, it adopted its own Rules of Criminal Procedure to become effective July 1, 1972. Rule 10 of these rules, entitled “Joinder of Offenses” would be applicable if the New Mexico rules applied to this case. New Mexico commentaries are not yet available to this Court. But the New Mexico rules do not apply because they are not yet in effect. I11 my opinion, the majority proceed improperly when it discusses the severance issue in relation to American Bar Association Standards, but ignore New Mexico Rules of Criminal Procedure.
The severance issue in this case is controlled by New Mexico decisions. The New Mexico decision on which the majority rely, as did the defendant in the trial court and in this appeal, is State v. Paschall, supra. This reliance is misplaced. In Paschall, supra, defendant was charged in four informations with six separate crimes. Two of the charges pertained to property of Fair Oil Company. Of these two charges, one was a charge of larceny of the property, the other was a charge of receiving and concealing that property. The joinder of these two charges was not held to be error. The error in joinder was in connection with the remaining four charges. These four charges were of separate and distinct felonies occurring at different times and places, and related to property belonging to different owners. The majority apply this decisional ground of Paschall in this case.
In doing so, they ignore the statements in Paschall, supra, indicating connected transactions can be tried together. Such a connection occurs when the charges as to the distinct offenses are provable by the same evidence. State v. Paschall, supra; State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App. 1970). In this case, evidence that defendant committed the jewelry store burglary was admissible to prove defendant’s connection with the burglary of Plome Builders Supply. Because of this connection, the majority, in my opinion, apply Paschall, supra, erroneously.
The majority, properly, address the question of prejudice to the defendant and abuse of discretion by the trial court. “ * * * The denial of the request for severance is not a basis for reversal unless abuse of discretion and prejudice is shown. * * * ” State v. Silver, supra. The majority hold there is prejudice and abuse of discretion because evidence as to the burglary of Home Builders Supply “was interspersed” with evidence as to the jewelry store burglary. “ * * * The fact alone that evidence of two separate crimes is before the jury does not afford proof of legal prejudice. * * * ” State v. Brewer, 56 N.M. 226, 242 P.2d 996 (1952); State v. Gunthorpe, 81 N.M. 515, 469 P.2d 160 (Ct.App.1970), cert. denied, 401 U.S. 941, 91 S.Ct. 943, 28 L.Ed.2d 221 (1971). Nor can the evidence of two separate crimes, without more, amount to an abuse of discretion. Here, the claim is based on the evidence of two separate crimes being combined in one trial. Since that is insufficient, in my opinion, the majority err in holding there was prejudice and abuse of discretion.
For the foregoing reasons, I dissent.