State v. Friend

• Decision Date: 01 June 2004
• Docket Number: No. COA03-663.,COA03-663.
• Citation: 596 S.E.2d 275,164 NC App. 430
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Joshua Daniel FRIEND.

596 S.E.2d 275

164 NC App. 430

STATE of North Carolina v. Joshua Daniel FRIEND.

No. COA03-663.

Court of Appeals of North Carolina.

June 1, 2004.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Leonard G. Green, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, New Bern, for defendant-appellant.

HUNTER, Judge.

Joshua Daniel Friend ("defendant") appeals from judgments dated 17 January 2003, entered consistent with jury verdicts finding defendant guilty of two counts of felonious breaking and entering, two counts of felonious larceny, and four counts of felonious possession of stolen goods. For the reasons stated herein, we conclude defendant is entitled to a new trial on one count of felonious breaking and entering and that there was no error in his remaining convictions.

The State's evidence tends to show that all of the offenses took place within the Colington Harbor neighborhood, on Harborview Drive. 802 Harborview Drive is the residence of Tucker Freeman ("Freeman"). In early October 2001, Freeman noticed several items missing from his garage including a Coleman stove, a green backpack, a tire iron, a drill and drill bits, an x-acto box containing knives and blades, a Daisy Red Rider BB rifle, a filet knife, and a wood knife. Defendant had been coming over to Freeman's property to fish. Freeman had given defendant permission to be there.

719 Harborview Drive is a vacation rental owned by Mr. Raymond Gross ("Gross"), and one of the neighborhood residences that was broken into. The house is often rented out under the direction of real estate agent Stan White ("White"). Gross maintained that defendant did not have permission to be in his house and that he previously made defendant aware of this. Freeman witnessed defendant emerge from inside Gross's house. Later, when Gross came to inspect the house, he found some items, such as his stove and ash tray, had been used. Later, it was discovered that several bottles of liquor had been stolen from this house. One particular bottle of Bacardi liquor had been purchased from a Class Six store at Langley Air Force Base. On this bottle was a sticker reading "AAFES." At the time of his arrest, defendant admitted having gone into Gross's house to find a place to sleep, telling the arresting officer "`I did go into that house ... but I just went there so I could have a place to sleep.'"

Michael Creekmore ("Creekmore") lives at 701 Harborview Drive. On 13 or 14 October 2002, Creekmore noticed his Hoyte compound bow was missing from his garage. William Walker ("Walker") lives at 605 Harborview Drive. Walker's son Joseph testified that the Walkers kept a black powder rifle, a hunting rifle, and a compound bow in their storage area underneath the house and that these items had been stolen.

James Trent ("Trent") is the caretaker of 471 Harborview Drive, a vacation home. On 20 October 2002, Trent went to the house to do some maintenance work and found that the back door had been kicked in, the kitchen was messy, and sodas and canned goods were missing. The downstairs bedroom was in disarray. Inside the bedroom was a green backpack, liquor bottles, a Hoyte compound bow, a Pearson compound bow, a parka jacket, a Coleman stove, and a green and brown nylon wallet with a chain attached to it.

One of the liquor bottles found in 471 Harborview Drive was identified by its "AAFES" sticker as having been stolen from Gross's house. Detectives testified that the parka resembled one they had seen defendant wearing on several occasions. The green backpack matched the description of the one Freeman saw on defendant's back when defendant was leaving the inside of Gross's house. The Coleman camping stove matched the description of Freeman's stolen stove, as did some of the knives. The Hoyte compound bow matched the one stolen from Creekmore's residence.

The green and brown nylon wallet had an Albermarle Mental Health Center appointment card inside with defendant's name on it. Detectives also testified that they had seen defendant carrying a similar-looking wallet in the past.

Elizabeth Quinlan ("Quinlan") lives at 715 Harborview Drive. She allowed defendant to stay in her house. Underneath the Quinlan home is an accessible lattice-enclosed area. On 16 October 2002, Freeman found items matching the description of some of his missing items in this lattice-enclosed area including: his x-acto box, Daisy BB rifle, and filet knife. Freeman also found other stolen property under the lattice-enclosure including a case with the name "Bill Walker" on it, containing a Remington rifle and scope, a Connecticut Valley black powder rifle, a Pearson compound bow, and a Nova compound bow.

Another hunting rifle and bow were recovered directly from Billy Thompson ("Thompson") who also lives at Quinlan's residence. The evidence tends to show that Thompson is mentally impaired and had trouble performing basic tasks. Thompson turned over the rifle and bow after Quinlan told him to give up any property that he did not buy or that George (another resident of the house) had not given to him.

Prior to jury selection in Dare County Superior Court, the trial court granted the State's motion to consolidate all of the charges against defendant for trial. As a result, defendant was tried on one count of second degree burglary, four counts of felonious breaking and/or entering, five counts of felonious larceny, and five counts of felonious possession of stolen goods.

The State relied heavily on the doctrines of recent and constructive possession in trying their case. On 5 September 2002, following trial by jury, defendant was found guilty of two counts of felonious breaking and entering, two counts of felonious larceny and four counts of felonious possession of stolen goods. Defendant was found not guilty of the remaining charges submitted to the jury. As a consequence of his convictions, defendant was sentenced to four consecutive eight to ten month prison terms followed by a fifth consecutive eight to ten month sentence, which was suspended upon defendant's successful completion of thirty-six months supervised probation.

The six issues presented on appeal are whether the trial judge erred by (I) joining all of the charges against defendant into one trial; (II) allowing the State to prove its case using hearsay testimony; (III) allowing the State to examine Deputy Neiman on certain matters during re-direct examination; (IV) allowing Deputy Doughtie to offer certain testimony as to fingerprinting techniques; (V) denying defendant's motion to dismiss all of the charges against him at the close of evidence; and (VI) failing to instruct the jury on the lesser-included misdemeanor offenses requested by defendant.

I.

Defendant alleges the trial court erred when it allowed the State to consolidate all of the charges against defendant into one trial. N.C. Gen.Stat. § 15A-926(a) provides that two or more offenses may be joined for trial when the offenses are based on the same act or transaction or on a series of acts or transactions connected together constituting parts of a single plan or scheme. See State v. Cummings, 103 N.C.App. 138, 140-41, 404 S.E.2d 496, 498 (1991). The decision to join cases for trial is within the trial court's discretion, and a trial judge's decision to join cases for trial will only be reversed if defendant was denied a fair trial. See State v. Ruffin, 90 N.C.App. 712, 714, 370 S.E.2d 279, 280 (1988).

This Court has recognized that the determination to be made is "`whether the offenses are so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial to the defendant.'" State v. Fultz, 92 N.C.App. 80, 83, 373 S.E.2d 445, 447 (1988) (quoting State v. Corbett, 309 N.C. 382, 389, 307 S.E.2d 139, 144 (1983)). In this case, save for one instance, all of the charged offenses were committed on or about September and October 2001 and in the same neighborhood on Harborview Drive. Thus, we conclude the trial court did not abuse its discretion in consolidating the charges because the offenses were all factually similar and interconnected.

Defendant also alleges that the large number of charges brought against defendant alone prevents him from receiving a fair trial when all were joined in the same action. However, this Court in State v. Harding affirmed a trial court's decision to consolidate even when the defendant was charged with "almost 15" separate indictments. State v. Harding, 110 N.C.App. 155, 161-62, 429 S.E.2d 416, 420-21 (1993). The trial judge in Harding even commented about the "`unbelievably complicated spider web ...'" created by the various allegations and indictments. Id. This Court concluded that since the charges were closely related in time and nature under the circumstances, joinder was proper and that defendant had nevertheless failed to show any prejudice. Id.

In the case before us, in addition to the factual similarity and interconnected nature of the charges, the record tends to show that defendant was not prejudiced by the joining of the fifteen charges as even after the trial court dismissed one count of possession of stolen property the jury still acquitted defendant of six of the remaining fourteen charges.

II.

Defendant next argues the trial court erred when it allowed Gross to testify over objection of defense counsel that defendant did not have permission to be on Gross's property and that his property had not been rented out since October 5th. Specifically, defendant argues that Gross's testimony was based on hearsay statements contained in a monthly report sent to him by White. The record shows that defense counsel did not object to Gross's testimony until later in the direct examination, when Gross explained that White kept him apprised of when the house was rented.

The State contends the monthly report qualifies as a business record under...