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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1076


Filed: 3 July 2007


v .                         Mecklenburg County
                            Nos. 04 CRS 234270-72;
                                04 CRS 234274

    Appeal by defendant from judgments entered 3 March 2006 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 April 2007.

    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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