Opinion
No. COA12–945.
2013-04-2
STATE of North Carolina v. Eddie Lavoid TAYLOR.
Attorney General Roy Cooper, by Assistant Attorney General Creecy Johnson, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
Appeal by defendant from judgments entered 27 January 2012 by Judge Jesse B. Caldwell III in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Creecy Johnson, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
BRYANT, Judge.
Where defendant failed to preserve for appellate review his argument that the trial court erred in excluding evidence at trial, we dismiss this issue. Also, we hold the trial court did not err in joining for trial the four charges on which defendant was indicted.
Defendant Eddie Lavoid Taylor appeals from judgments entered upon jury verdicts finding him guilty of possession of stolen goods, larceny after breaking or entering, breaking or entering, and attaining the status of an habitual felon. The trial court arrested judgment on defendant's conviction for possession of stolen goods and sentenced defendant as an habitual felon to two concurrent terms of 146 to 185 months imprisonment. Defendant gave notice of appeal in open court.
Defendant first argues the trial court erred in sustaining the State's objection to a question asked of Officer Jason Armstrong. Officer Armstrong assisted in conducting an interview with defendant regarding the crimes for which defendant was ultimately charged. During interviews with the investigating officers, defendant made several statements regarding how he came to possess the stolen property. Defendant initially claimed he found the property in a dumpster, then claimed a third party had given him the property, then claimed he and the third party had stolen the property together, and finally claimed that he had stolen the property alone. On cross-examination, defense counsel asked Officer Armstrong, “Did you ever ask Mr. Taylor if he has any sort of mental health diagnosis?” The State objected, and after an off-the-record bench conference with counsel, the trial court sustained the State's objection.
Defendant now argues the trial court erred in sustaining the objection because his trial counsel had a good-faith belief that defendant's mental health was something an interrogator would have asked about, and that the information was relevant to assess the credibility of defendant's varying explanations of how he came to possess stolen property. Defendant contends he was prejudiced by the sustaining of the State's objection because it foreclosed his ability to use a possible mental health diagnosis to attack the credibility of defendant's statements to the police. However, defendant failed to preserve this issue for appellate review.
Our Supreme Court has held:
[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record. We also held that the essential content or substance of the witness' testimony must be shown before we can ascertain whether prejudicial error occurred.
State v. Jacobs, 363 N.C. 815, 818, 689 S.E.2d 859, 861 (2010) (citation, quotations, and brackets omitted); see alsoN.C. Gen.Stat. § 8C–1, Rule 103(a)(2) (2011) (providing that error not be predicated upon a trial court's ruling which excludes evidence unless a substantial right has been affected and the substance of the evidence was made known to the court). “Absent an adequate offer of proof, [reviewing courts] can only speculate as to what a witness's testimony might have been.” Jacobs, 363 N.C. at 818, 689 S.E.2d at 861–62.
Defendant's argument is entirely predicated upon the supposition that Officer Armstrong would have testified that he did ask defendant if defendant had a mental health diagnosis, that defendant would have answered in the affirmative, that the diagnosis would have been identified, and that the diagnosis would have been relevant to the credibility of defendant's statements. Defendant made no offer of proof to establish what Officer Armstrong's testimony would have been, and thus cannot show he was prejudiced by the trial court's sustaining of the State's objection. Accordingly, defendant's argument has not been preserved for appellate review. Id. at 819, 689 S.E.2d at 862.
Defendant also argues the trial court abused its discretion when it allowed the State's motion to join defendant's offenses for trial. Defendant was tried on a total of four offenses. The first three offenses were for possession of stolen goods, larceny after breaking or entering, and breaking or entering. These three offenses were all alleged to have occurred on 5 November 2010, and stemmed from the theft of property from a dentist's office located at 110 University Executive Park in Charlotte, North Carolina. The fourth offense was for a separate breaking or entering into offices occupied by the Governor Morehead School for the Blind. The fourth offense was also alleged to have occurred on 5 November 2010, and the offices were located at 110 University Executive Park, just two doors down from the dentist's office. The trial court allowed the State's motion to join the offenses for trial over defendant's objections. The jury ultimately found defendant guilty of the offenses involving the dentist's office, but not guilty of breaking or entering into the offices of the Governor Morehead School for the Blind. Defendant argues the trial court abused its discretion in allowing the State's motion to join the offenses for trial because the crimes were not part of the same transaction. We disagree.
“In considering a motion to join [offenses pursuant to N.C. Gen.Stat. § 15A–926(a) ], the trial judge must first determine if the statutory requirement of a transactional connection is met.” State v. Williams, 355 N.C. 501, 529, 565 S.E.2d 609, 626 (2002) (citation omitted).
A motion to consolidate charges for trial is addressed to the sound discretion of the trial judge and that ruling will not be disturbed on appeal absent an abuse of discretion. If, however, the charges consolidated for trial possess no transactional connection, then the consolidation is improper as a matter of law.
State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981) (citations omitted). “In considering whether a transactional connection exists among offenses, our courts have taken into consideration such factors as the nature of the offenses charged, commonality of facts, the lapse of time between offenses, and the unique circumstances of each case.” State v. Herring, 74 N.C.App. 269, 273, 328 S.E.2d 23, 26 (1985) (citations and quotation marks omitted).
Here, the State moved to join defendant's offenses for trial because, while the crimes arose out of “two separate incidents[, t]hey did occur on the same day within the same area within a very short amount of time.” The trial court allowed the motion after taking into account the commonality of the two breaking or entering offenses, and finding the offenses were within the same alleged time frame and included the same witnesses. The trial court's findings support its conclusion that a transactional connection exists among the offenses. Accordingly, we hold the trial court did not abuse its discretion in allowing the State to join defendant's offenses for trial.
No error. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).