STATE OF NORTH CAROLINA
v. Forsyth County
No. 02 CRS 021524
GARY BERNARD SPRINGS
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Y. Meacham, for the State.
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for
defendant appellant.
McCULLOUGH, Judge.
Defendant was found guilty of common law robbery of James
Craft and not guilty of common law robbery of Louis Cooper and
attempted armed robbery of Webster Jackson. Upon the jury's
finding that defendant was an habitual felon, the trial court
sentenced him to 144 to 182 months in prison. Defendant gave
notice of appeal in open court.
Defendant was charged with three robberies allegedly committed
on the 3rd, 10th and 26th of May 2002 in the vicinity of Rupert
Bell Park in Winston-Salem, North Carolina. Prior to trial, the
State filed a motion to join the three offenses for trial pursuant
to N.C. Gen. Stat. § 15A-926(a) (2003). In allowing joinder of thecharges, the trial court found sufficient similarities from the
State's forecast of facts to show that the robberies were “part of
a common scheme or plan based on proximity in time, place and
common modus operandi.” The court further found that evidence of
each robbery would be admissible at a trial on either of the other
two robberies “to show intent, modus operandi, common scheme or
plan, and identity” pursuant to N.C.R. Evid. 404(b).
At trial, Cooper testified that he was sitting in Rupert Bell
Park playing cards and drinking beer on 3 May 2002, when he saw
defendant. Cooper recognized defendant from the park but knew him
only by his nickname, “Scaldcat.” Cooper started to walk with a
friend to 12th Street. As he reached a nearby tree, defendant
punched him in the jaw, removed $15 from his pocket, and ran off in
the direction of Highland Home Apartments. Although Cooper briefly
lost consciousness from the blow, he felt defendant going through
his pockets and saw him running away from the scene. After several
days of excruciating pain, Cooper went to the hospital where he
remained for a week receiving treatment for his broken jaw. Cooper
saw a police officer in the park on 28 May 2002, and reported the
robbery. He was able to identify defendant as his assailant from
a photograph lineup.
James Craft testified that defendant asked him to drive him
from the parking lot of the Food Lion grocery store near Rupert
Bell Park to defendant's daughter's house on 25th Street on 10 May
2002. When they arrived at their purported destination, defendant
told Craft he had changed his mind and directed Craft to anabandoned house on a nearby side street. Defendant asked Craft if
he had change for a $20 bill. When Craft produced the change,
defendant took it from his hand, stepped out of the van, and told
Craft to wait while he retrieved someone from the house. Craft
looked for defendant in his driver's side mirror. Craft then
turned around, and defendant struck Craft in the side of the face
and “knocked [him] in[to] another world.” When Craft regained
consciousness, the money in his pocket was missing and defendant
was gone. Craft reported the incident to police and selected
defendant's photograph from a lineup the following day. Although
he did not know defendant by name, Craft had previously transported
defendant to and from job sites while working as a driver for a
temporary staffing agency.
Webster McCrory Jackson testified that he was playing cards
and drinking beer with his friends in Rupert Bell Park during the
afternoon of 26 May 2002. When the group ran out of beer, Jackson
walked to an ATM machine in the Food Lion parking lot and returned
to the park. Defendant, whom Jackson knew as “Scaldcat,”
approached Jackson and asked him for some beer. After taking the
beer, defendant sat down beside Jackson and asked him for $2.
Jackson refused to give defendant money. A few minutes later,
defendant struck Jackson on the forehead with a sharp silver
object. With blood running down his face, Jackson pushed defendant
away from him and wrapped a shirt around his head to stanch the
blood. Defendant came at Jackson and tried to reach into his left
pocket. Jackson kicked defendant in the mouth and threw him to theground. Defendant tried for Jackson's pocket a second time, but
Jackson ran to his house while a friend called the police with a
cellular phone. When the police arrived, they arranged for Jackson
to be taken to the hospital for treatment of his wounds. Jackson
identified defendant in a photographic lineup.
Defendant argues on appeal that the trial court erred in
joining the three charges for trial. Under N.C. Gen. Stat. § 15A-
926(a) (2003), multiple charges against a defendant 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.” Although the decision to join
offenses is left to the sound discretion of the trial court, the
initial determination of whether a sufficient transactional
connection exists to support joinder is a question of law fully
reviewable on appeal. See State v. Holmes, 120 N.C. App. 54, 61,
460 S.E.2d 915, 920, disc. review denied, 342 N.C. 416, 465 S.E.2d
545 (1995). In order to establish that an erroneous joinder
constitutes reversible error, however, a defendant must also show
a “reasonable possibility that a different result would have been
reached” had the offenses been tried separately. See State v.
Perry, 142 N.C. App. 177, 182, 541 S.E.2d 746, 750 (2001).
Because we find no possibility that defendant was prejudiced
by the joinder of the charges at issue here, we need not determine
if there existed a transactional relationship between the three
robberies as contemplated by N.C. Gen. Stat. § 15A-926. The jury
found defendant guilty only of the robbery of Craft, acquitting himof the Cooper and Jackson robberies despite both men's sworn
testimony identifying him as their assailant. Defendant suffered
no prejudice as to the two charges on which he was found not
guilty. Moreover, inasmuch as the jury was unpersuaded by the
State's evidence in the Cooper and Jackson cases, we see no
possibility that it found defendant guilty in the Craft case based
thereon. Cf. State v. Ford, 314 N.C. 498, 504, 334 S.E.2d 765, 769
(1985) (finding that the “defendant cannot show that he was
prejudiced by this evidence when he was acquitted of the two
charges to which [the challenged] testimony related.”); State v.
Woolard, 260 N.C. 133, 138, 132 S.E.2d 364, 368 (1963); State v.
Johnson, 124 N.C. App. 462, 469, 478 S.E.2d 16, 21 (1996), cert.
denied, 345 N.C. 758, 485 S.E.2d 304 (1997) (“[A]s defendant was
acquitted of the offense of possession with the intent to sell or
deliver cocaine, he has failed to show prejudice in the admission
of the challenged evidence.”).
We further find that evidence of all three of the joined
offenses would have been admissible pursuant to N.C.R. Evid. 404(b)
at a trial on any one of the charges. The State's evidence
depicted three robberies occurring in a span of twenty-three days.
The alleged victims, all men, were approached by defendant in and
around Rupert Bell Park and frequented the area. Each of the
victims knew defendant casually by the nickname “Scaldcat.”
Defendant struck each man in the head before reaching into his
pocket, taking, or attempting to take money. In each instance,
defendant fled the scene on foot. Thus, “[t]he evidence discloseda similar modus operandi, similar circumstances with respect to the
victims, similar location and similar motive[]” allowing its
admission at trial under Rule 404(b) to show defendant's motive,
intent, identity or modus operandi. State v. Effler, 309 N.C. 742,
752, 309 S.E.2d 203, 209 (1983). Although not conclusive on the
issue, the fact that the jury would have heard evidence of all
three crimes even absent their joinder for trial further supports
our determination that defendant was not prejudiced by the trial
court's ruling. See State v. Bowen, 139 N.C. App. 18, 29, 533
S.E.2d 248, 255 (2000). Accordingly, we overrule defendant's
assignment of error.
In his next assignment of error, defendant faults the trial
court for receiving Winston-Salem Police Officer Lisa Thomas as an
expert witness without allowing him to challenge her qualifications
and the basis of her opinions in a voir dire hearing. Thomas
testified during the habitual felon stage of defendant's trial
regarding the arrest records maintained in her department's
detention center. She described her experience in this field,
which included five years of on-the-job training, classes in
fingerprint comparison and crime scene processing, and a
Fingerprint Classification Certificate obtained through a class in
fingerprint comparison offered by the Federal Bureau of
Investigation. Thomas estimated she had lifted latent fingerprints
on more than 500 occasions and had matched latent fingerprints with
known print samples hundreds of times. Based on this showing, the
State tendered Thomas as an expert in fingerprint identification. Over defendant's objection, the court certified Thomas as an expert
and denied defendant's request for a voir dire hearing. Thomas
then testified that defendant's fingerprints and palmprints
perfectly matched those found on police records reflecting his
arrest on three prior felony charges.
In view of Thomas's extensive training and experience in
fingerprint comparison and analysis, we find no abuse of discretion
by the trial court in receiving her as an expert in this field
under N.C.R. Evid. 702. See State v. Bowers, 135 N.C. App. 682,
685, 522 S.E.2d 332, 334-35 (1999). To the extent defendant
asserts a right under N.C.R. Evid. 705 to ascertain the facts and
data forming the basis of Thomas's opinions on voir dire before she
offered her opinion to the jury, we find no merit to his assignment
of error. Rule 705 provides that an expert may offer opinion
testimony “without prior disclosure of the underlying facts or
data, unless an adverse party requests otherwise, in which event
the expert will be required to disclose such underlying facts or
data on direct examination or voir dire before stating the
opinion.” When such advance disclosure is not requested by the
opposing party, “[t]he expert may in any event be required to
disclose the underlying facts or data on cross-examination.”
N.C.R. Evid. 705. Here, although defendant objected and requested
a voir dire hearing when the court received Thomas as an expert
witness, defendant made no request for advance disclosure of the
facts and data underlying her opinion pursuant to Rule 705.
Moreover, the data and procedures upon which Thomas relied werefully disclosed during the course of her direct and cross-
examination. During cross-examination, defendant had the
opportunity to challenge Thomas's qualifications and the accuracy
of her opinion. Therefore, any delay in obtaining the underlying
facts and data under Rule 705 had no prejudicial impact and
provides no basis for relief on appeal. See State v. Pretty, 134
N.C. App. 379, 388, 517 S.E.2d 677, 684, disc. review denied and
appeal dismissed, 351 N.C. 117, 540 S.E.2d 745 (1999).
No error.
Judge HUNTER concurs.
Judge WYNN concurs in result only.
Report per Rule 30(e).
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