STATE OF NORTH CAROLINA
v
.
Mecklenburg County
Nos. 04 CRS 234270-72;
04 CRS 234274
WILLIAM COOPER, JR.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Amar Majmundar, for the State.
J. Clark Fischer, for defendant-appellant.
JACKSON, Judge.
On 20 September 1998, Jennifer Maureen O'Keefe (“O'Keefe”)
visited with friends until 3:00 a.m. after working at Fat Tuesday's
in Charlotte, North Carolina, and then proceeded to walk home
alone. As she walked down Sharon Road West, she noticed a white
Honda driven by William Cooper, Jr. (“defendant”) approaching her.
He stopped his vehicle to ask her if she was okay. O'Keefe told
defendant she was fine, and defendant then drove off. After
defendant drove away, O'Keefe noticed defendant making a u-turn and
she began running. Defendant jumped from his car and dragged her
into nearby woods. O'Keefe screamed, to which defendant responded
by telling her that if she “didn't shut up or cooperate he wasgoing to slit [her] throat.” Defendant then raped O'Keefe, but
O'Keefe did not believe that he ejaculated inside her.
On 3 December 1998, Michelle Cooper-Clark (“Cooper-Clark”)
went out with her friends in Charlotte. As she walked home to her
apartment, defendant grabbed her from behind and took her into
nearby woods where he then raped her. Defendant stopped before he
ejaculated and assured Cooper-Clark that he did not have any
venereal diseases.
Defendant stated that when he initially was charged with the
instant crimes in 2004 he did not recall the incidents. Later, he
recalled drinking with friends prior to encountering O'Keefe
walking on Sharon Road. He stated that he and O'Keefe smoked
marijuana together, and then had consensual intercourse.
Afterwards, she “got this disgruntled look on her face,” slammed
the car door and left. Defendant denied raping O'Keefe or
assaulting her in any way. Defendant also recalled meeting Cooper-
Clark, and stated they flirted and then had consensual intercourse
in the back of his car. Defendant denied ever going to Cooper-
Clark's apartment or even knowing where she lived.
On 16 August 2004, defendant was indicted on two counts of
second degree rape and two counts of first degree kidnapping. The
indictments listed the alleged victims as Michelle Cooper and
Jennifer O'Keefe. The dates of the offenses were listed as 20
September 1998 and 4 December 1998.
On 7 June 2005, the State filed a motion to join the cases for
trial. On 27 February 2006, defendant's cases were called fortrial before the Honorable James Morgan. On the same day,
defendant filed a motion to sever the cases, pursuant to North
Carolina General Statutes, section 15A-927(b). After finding a
transactional connection, and a common plan or scheme between the
offenses involving the two victims, the trial court granted the
State's motion for joinder and denied defendant's motion to sever.
After the cases were joined for trial, defendant was found guilty
of all of the charged offenses on 3 March 2006. Defendant was
sentenced to four consecutive terms of imprisonment. Defendant
gave timely notice of appeal.
Defendant first contends the trial court committed prejudicial
error by denying his motion to sever the offenses where there were
only minimal similarities between the two instances of rape and
kidnapping. Defendant argues that by forcing him to defend against
both offenses in a single trial, there was the unavoidable effect
of lowering the prosecution's burden of proof.
“The propriety of joinder depends upon the circumstances of
each case and is within the sound discretion of the trial judge.
'Absent a showing that a defendant has been deprived of a fair
trial by joinder, the trial judge's discretionary ruling on the
question will not be disturbed.'” State v. Pickens, 335 N.C. 717,
724, 440 S.E.2d 552, 556 (1994) (quoting State v. Nelson, 298 N.C.
573, 586, 260 S.E.2d 629, 640 (1979)). An abuse of discretion
occurs when the case fails to meet the requirements of section 15A-
926(a) or when the offenses are “'so separate in time and place and
so distinct in circumstances as to render consolidation unjust andprejudicial to the defendant.'” State v. Floyd, 115 N.C. App. 412,
417, 445 S.E.2d 54, 58 (1994) (quoting State v. Cummings, 103 N.C.
App. 138, 141, 404 S.E.2d 496, 498 (1991)).
Here, defendant made a pre-trial motion to sever the charges
against him. Defendant's motion was denied and he renewed his
motion to sever at the close of all of the evidence. The trial
court denied defendant's renewed motion. “A trial court may be
reversed for an abuse of discretion only upon a showing that its
ruling was so arbitrary that it could not have been the result of
a reasoned decision.” State v. Hayes, 314 N.C. 460, 471, 334
S.E.2d 741, 747 (1985) (citing State v. Wilson, 313 N.C. 516, 538,
330 S.E.2d 450, 465 (1985)), rev'd on other grounds, 323 N.C. 306,
372 S.E.2d 704 (1988).
Multiple offenses may be joined for trial pursuant to North
Carolina General Statutes, section 15A-926, which provides that:
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.
N.C. Gen. Stat. § 15A-926(a) (2005). “The transactional connection
required by [section] 15A-926(a) may be satisfied by considering
various factors. Two factors frequently used in establishing the
transactional connection are a common modus operandi and the time
lapse between offenses.” State v. Williams, 355 N.C. 501, 530-31,
565 S.E.2d 609, 627 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed.
2d 808 (2003). Defendant argues the trial court abused its discretion in
joining the offenses for trial because the State failed to show any
transactional relationship between the O'Keefe and Cooper-Clark
cases. The trial court looked at several factors and found there
was a transactional connection between the cases. The trial court
took the following factors into account: the nature of the
offenses; the time of the attacks; the lack of use of weapons; the
use of verbal threats; the manner in which the victims were
encountered; both attacks occurred near a wooded area; both attacks
occurred in Charlotte; both attacks were near the victims' homes;
the DNA evidence; and the time between the offenses.
Defendant discusses each of the factors and contends that as
to the nature of the offenses, the indictment reveals only generic
rape and kidnapping charges. We disagree.
In State v. Williams, 355 N.C. 501, 531-32, 565 S.E.2d 609,
627 (2002), our Supreme Court held that the trial court did not
abuse its discretion when it joined the defendant's rape and sexual
offense charges for trial. In Williams, “the incidents took place
in a fifteen- to sixteen-month span, with the longest time between
offenses being close to five months.” Id. at 531, 565 S.E.2d at
627. The Supreme Court found “[t]he evidence disclosed a similar
modus operandi, similar circumstances with respect to the type of
victims, similar location, and a DNA match between defendant and
several of the victims.” Id. Our Supreme Court held “the trial
court did not abuse its discretion in joining these offenses for
trial.” Id. at 532, 565 S.E.2d at 627. We hold Williams is controlling precedent in the instant case.
Here, both kidnappings and rapes occurred less than three months
apart, and in both cases before us defendant was charged with
second degree rape and first degree kidnapping. Both victims were
Caucasian females in their mid-twenties. Both incidents occurred
in the early morning hours between 3:00 a.m. and 5:00 a.m. The
victims in both cases suffered no additional physical injuries
beyond the rapes. Defendant made verbal threats to both victims
but used no weapon, and defendant's DNA was found inside both
victims. In the first incident, defendant ran and tackled the
victim and dragged her to the edge of the woods where he proceeded
to rape her. In the second incident, defendant grabbed the victim
and took her to a wooded area behind her apartment and raped her.
Both incidents occurred near the victims' homes, and within the
Charlotte city limits. Defendant withdrew his penis prior to
ejaculation in both instances. Defendant acted alone in both cases
and both victims were alone when assaulted. The common factors of
the two attacks are more than sufficient to affirm the trial
court's ruling to allow joinder for trial. Defendant cannot show
any abuse of discretion in the trial court's ruling to join and to
deny defendant's motion to sever.
Even if defendant could show the trial court's ruling was
erroneous, defendant cannot demonstrate any prejudice. Defendant
makes the unsupported contention that joining the offenses in his
case was unfairly prejudicial because a jury was “far less likely
to credit Defendant's testimony that the sexual conduct wasunforced” when they heard evidence of two separate rape
allegations. During arguments regarding the motions to sever and
join the offenses, defendant's counsel stated that “[o]bviously
joining two sexual assault cases has an extremely high adverse
effect upon the defendant. The jury is very likely to find that,
as the old saying goes, where there's smoke, there's fire. I'd
argue the adverse effect based upon joinder of these cases would be
extremely high.” The State argues that this is a “commonsense
proposition” and is not supported. As noted by the State, we
previously have held that a statement of prejudice, unsupported, is
not sufficient to show that there has been an abuse of discretion.
State v. Ruffin, 90 N.C. App. 712, 714, 370 S.E.2d 279, 280 (1988).
“[T]he only assertion that defendant was deprived . . . is the
unsupported statement of defendant's counsel. Neither the motion
nor the record on appeal indicates what the exculpatory testimony
would have been.” Id. According to Ruffin, unless there is
something in the record or motion to indicate additional support,
counsel's statement of prejudice is not sufficient to show unfair
prejudice.
As a general rule:
evidence of commission of other independent
and unrelated crimes or offenses is not
admissible to prove an accused to be guilty of
the crime for which he is on trial. However,
equally well-established exceptions to the
rule permit proof of commission of like
offenses to show, inter alia, intent, plan or
design to commit the offense charged or to
show identity of the accused. Our [Supreme]
Court has been very liberal in admitting
evidence of similar sex crimes in construing
the exceptions to the general rule.State v. Greene, 294 N.C. 418, 422-23, 241 S.E.2d 662, 665 (1978)
(citations omitted).
“[T]he similarities in these cases were such that the
essential evidence in one case would have been admissible in [the]
other case to prove intent, plan, or design” under Rule 404(b).
Williams, 355 N.C. at 531, 565 S.E.2d at 627. See, e.g., State v.
Effler, 309 N.C. 742, 752, 309 S.E.2d 203, 209 (1983) (evidence of
each crime admissible at the trial of the other to prove intent,
plan, or design); State v. Corbett, 309 N.C. 382, 388, 307 S.E.2d
139, 144 (1983) (evidence otherwise admissible to prove identity);
Greene, 294 N.C. at 422-23, 241 S.E.2d at 665 (evidence of assault
with intent to commit rape upon one victim was admissible in the
cases charging defendant with kidnapping and raping another victim
to show defendant's intent and plan or design to commit the crimes,
or, to show a single scheme or plan).
Thus, we hold defendant has failed to show any prejudice from
the joinder of these offenses for trial. If tried separately, the
State could have called the other rape victim to testify to these
similarities. Therefore, the trial court did not err in joining
defendant's offenses for trial, and defendant has failed to
demonstrate any prejudice in the denial of his motion to sever.
Finally, defendant argues the trial court erred by denying his
motion to dismiss the charges of first degree kidnapping at the
close of the State's evidence and again at the close of all the
evidence. Defendant contends the evidence presented failed to showany asportation of the victims from that necessarily required to
commit the rapes. We disagree.
In reviewing a defendant's motion to dismiss based upon
insufficiency of the evidence,
The trial court must determine only whether
there is substantial evidence of each
essential element of the offense charged and
of the defendant being the perpetrator of the
offense. Evidence is substantial if it is
relevant and adequate to convince a reasonable
mind to accept a conclusion. In considering a
motion to dismiss, the trial court must
analyze the evidence in the light most
favorable to the State and give the State the
benefit of every reasonable inference from the
evidence. The trial court must also resolve
any contradictions in the evidence in the
State's favor. The trial court does not weigh
the evidence, consider evidence unfavorable to
the State, or determine any witness'
credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)
(internal citations and quotation marks omitted), cert. denied, 535
U.S. 1114, 153 L. Ed. 2d 162 (2002).
In the instant case, the State presented substantial evidence
tending to show a separate asportation from the restraint or
removal, or confinement inherent in the rapes.
Asportation of a rape victim is sufficient to
support a charge of kidnapping if the
defendant could have perpetrated the offense
when he first threatened the victim, and
instead, took the victim to a more secluded
area to prevent others from witnessing or
hindering the rape. Such asportation is
separate and independent of the rape, is
removal for the purpose of facilitating the
felony of rape, and is, therefore, kidnapping
pursuant to N.C.G.S. § 14-39. State v.
Whittington, 318 N.C. 114, 347 S.E.2d 403
(1986); State v. Tucker, 317 N.C. 532, 346S.E.2d 417 (1986); State v. Newman, 308 N.C.
231, 302 S.E.2d 174 (1983).
State v. Walker, 84 N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987).
The victims' testimony establishes that defendant could have
raped both of them where they initially were attacked, but instead,
defendant forced them away from public areas where help may have
been available. Both victims were taken into secluded areas in the
woods, away from where defendant initially encountered them.
Pursuant to Walker, defendant's acts constituted the asportation
apart from the rape itself to support the trial court's sending the
charges of first degree kidnapping to the jury. See Whittington,
318 N.C. at 122, 347 S.E.2d at 408 (trial judge did not err in
denying defendant's motion to dismiss a kidnapping charge when
victim was moved approximately eighty feet); see also Newman, 308
N.C. at 239-40, 302 S.E.2d at 180-81 (defendant's movement of the
victim from a store parking lot into the woods behind the store
constituted sufficient asportation to support a conviction of
kidnapping).
Viewed in the light most favorable to the State, there was
sufficient evidence presented to submit the charges of first degree
kidnapping to the jury. Thus, the trial court acted properly in
denying defendant's motion to dismiss the charges of first degree
kidnapping.
No error.
Judges HUNTER and TYSON concur.
Report per Rule 30(e).
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