{ "id": 8523459, "name": "STATE OF NORTH CAROLINA v. WILLIAM A. PERGERSON", "name_abbreviation": "State v. Pergerson", "decision_date": "1985-03-05", "docket_number": "No. 8410SC328", "first_page": "286", "last_page": "291", "citations": [ { "type": "official", "cite": "73 N.C. App. 286" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "284 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569175 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0471-01" ] }, { "cite": "312 S.E. 2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525781 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0122-01" ] }, { "cite": "307 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766892 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0382-01" ] }, { "cite": "264 S.E. 2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "46 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550805 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc-app/46/0338-01" ] }, { "cite": "283 S.E. 2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "54 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523595 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc-app/54/0488-01" ] } ], "analysis": { "cardinality": 457, "char_count": 8871, "ocr_confidence": 0.812, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.34063607569398835 }, "sha256": "ede1bb452ac37afcbf347457464643530864b0edc860b71fb8a2b1a102f77a17", "simhash": "1:4533e5db845522fe", "word_count": 1471 }, "last_updated": "2023-07-14T21:55:13.639601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WHICHARD concurs.", "Chief Judge HEDRICK concurs in result." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM A. PERGERSON" ], "opinions": [ { "text": "PARKER, Judge.\nGeneral Statute 7A-271 provides, in pertinent part:\n(a) The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division by this Article, except that the superior court has jurisdiction to try a misdemeanor:\n(3) Which may be properly consolidated for trial with a felony under G.S. 15A-926. . . .\nDefendant\u2019s two offenses were joined for trial pursuant to G.S. 15A-926(a) which provides for joinder \u201cwhen 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.\u201d A ruling on a motion to consolidate will not be disturbed on appeal absent an abuse of discretion. State v. Corbett, 309 N.C. 382, 307 S.E. 2d 139 (1983); State v. Hardy, 67 N.C. App. 122, 312 S.E. 2d 699 (1984).\nThe State\u2019s evidence tended to show that on 6 March 1983, Marion Williams owned a 1972 brown Lincoln Continental which he had loaned to his daughter, Elizabeth Choplin. Williams had not given defendant permission to drive the car. The Lincoln would start without an ignition key, just by turning the ignition switch.\nThe evening of 5 March 1983, Elizabeth Choplin was with defendant at a party at her neighbor\u2019s house. Defendant was wearing a yellow T-shirt with holes, blue jeans, tennis shoes and a baseball cap. Choplin left the party and went home with her husband and defendant. Defendant often stayed at the Choplin\u2019s house. The Lincoln was parked on the street, and Elizabeth Chop-lin did not give defendant permission to drive the car.\nAt approximately 12:30 a.m. on 6 March 1983, Patrolman Curtis Womble saw a brown Lincoln Continental spinning out of control on Glenwood Avenue. Patrolman Womble turned on his siren and the driver of the Lincoln sped up. The Lincoln turned down Cleveland Street, then turned down a gravel alley, skidded, hit some bushes and trees, and struck a utility pole. The driver, a white male wearing white shoes, blue jeans, a yellow T-shirt with holes, and a red baseball cap, got out of the car and ran. Womble pursued him unsuccessfully for several minutes and then returned to his patrol car and reported the Lincoln\u2019s license number. Womble then went to Elizabeth Choplin\u2019s house on Cleveland Street. He testified that when he saw Donald Choplin, Elizabeth Choplin\u2019s husband, he knew that Choplin was not the driver of the Lincoln because \u201che was too short, too fat, and his hair wasn\u2019t long enough.\u201d Womble identified defendant as the driver of the Lincoln.\nDefendant testified on his own behalf that he had four mixed drinks and left the party at 8:00 p.m. He called his grandfather and rode his bicycle to his grandfather\u2019s house. He spent the night at his grandfather\u2019s and returned to the Choplin\u2019s at 8:00 a.m. the following morning. Defendant denied driving the Lincoln.\nTestimony by defendant\u2019s grandfather, Leroy Choplin, corroborated defendant\u2019s testimony.\nWe find that joinder pursuant to G.S. 15A-926(a) was appropriate because the two offenses in this case both related to the same 1972 Lincoln Continental which the evidence tended to show defendant was driving. Clearly the two offenses, larceny and unauthorized use of a motor vehicle, were \u201cbased on the same act or transaction.\u201d\nDefendant admits that after joinder the superior court properly had jurisdiction pursuant to G.S. 7A-271(a)(3), but argues that the felony charge was a sham, manufactured only to create original jurisdiction in the superior court. Essentially, defendant is saying that the two offenses should not have been joined for trial under G.S. 15A-926(a), and the misdemeanor charge should have been heard in district court. Defendant, however, has presented no evidence to support his contention that the felony charge was a sham or to show that the grand jury proceedings were not conducted in good faith. Defendant has shown no prejudice arising from the consolidation or abuse of discretion by the trial judge. The two offenses were properly joined under G.S. 15A-926(a), and the superior court had jurisdiction over the misdemeanor charge under G.S. 7A-271(a)(3). See State v. Fearing, 304 N.C. 471, 284 S.E. 2d 487 (1981).\nNo error.\nJudge WHICHARD concurs.\nChief Judge HEDRICK concurs in result.", "type": "majority", "author": "PARKER, Judge." }, { "text": "Chief Judge HEDRICK\nconcurring.\nDefendant\u2019s one assignment of error is set out in the record as follows:\nThe defendant assigns as error the following:\n1. Entry of judgment, granting the State\u2019s motion to consolidate the two charges and denial of the defendant\u2019s motion to dismiss the charge of unauthorized use of a motor vehicle; on the ground that this offense was a misdemeanor over which the District Court had exclusive jurisdiction and that the charge was improperly brought in Superior Court by being combined with a felony charge which the State did not and could not prove.\nIn his brief defendant argues that, while the charges on which he was tried arose out of the same transaction, the felony charge was \u201ca sham,\u201d serving only to \u201cmanufacture]\u201d original jurisdiction over the misdemeanor charge in the superior court.\nDefendant was charged in a proper bill of indictment with felonious larceny of an automobile belonging to M. E. Williams. He was found guilty of unauthorized use of the same motor vehicle in violation of G.S. 14-72.2, a misdemeanor. The offense of unauthorized use of a motor vehicle is a lesser included offense of felonious larceny of a motor vehicle. State v. Coward, 54 N.C. App. 488, 283 S.E. 2d 536 (1981); State v. Ross, 46 N.C. App. 338, 264 S.E. 2d 742 (1980).\nThe question of the consolidation of a misdemeanor offense and a felony which were \u201cpart of the same act or transaction\u201d so as to give the superior court original jurisdiction over the misdemeanor was first raised by the State\u2019s gratuitous motion to join the charges in the present case and is discussed by both the State and the defendant in their briefs as well as by the majority opinion. I believe the question to be meaningless in the context of this case. The short answer to defendant\u2019s contention that the superior court lacked jurisdiction to try defendant for the misdemeanor offense is that the superior court has exclusive original jurisdiction to try all felonies and any lesser included offenses of the particular felony charged. G.S. 7A-271(a)(l). In the instant case, where defendant was charged with felonious larceny of an automobile belonging to M. E. Williams, the superior court had exclusive, original jurisdiction to try the defendant for that offense and for the lesser included offense of the misdemeanor described in G.S. 14-72.2.\nI agree with the majority that the defendant had a fair trial free of prejudicial error.", "type": "concurrence", "author": "Chief Judge HEDRICK" } ], "attorneys": [ "Attorney General Edmisten by Associate Attorney General Barbara P. Riley for the State.", "Appellate Defender Adam Stein by James R. Glover for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM A. PERGERSON\nNo. 8410SC328\n(Filed 5 March 1985)\nCriminal Law \u00a7 16.1\u2014 joinder of misdemeanor and felony proper \u2014 dismissal of felony-jurisdiction of misdemeanor remains in superior court\nThe felony of larceny of a motor vehicle and the misdemeanor of unauthorized use of a motor vehicle were properly joined, and the superior court had jurisdiction over the misdemeanor after the felony was dismissed, where there was evidence that a 1972 Lincoln Continental owned by the father of a friend with whom defendant often stayed was seen spinning out of control by a patrolman, who gave chase; that the driver of the Lincoln, wearing clothes similar to those worn by defendant at a party earlier in the evening, got out of the car and ran after the car struck a utility pole; that the officer identified defendant as the driver of the Lincoln; and that defendant did not have permission to drive the car. The two offenses were clearly based on the same act or transaction. G.S. 7A-271(a)(3); G.S. 15A-926(a).\nChief Judge Hedrick concurring.\nAPPEAL by defendant from Brewer, Judge. Judgment entered 5 January 1984 in Superior Court, WAKE County. Heard in the Court of Appeals 8 January 1985.\nDefendant was indicted and pled not guilty to larceny of an automobile having a value of $2,900 and unlawful operation of that same automobile. Upon State\u2019s motion, the two offenses were joined for trial in superior court. At the close of State\u2019s evidence, the larceny charge was dismissed for insufficient evidence. At the close of all evidence defendant moved to dismiss the charge of unauthorized operation of a motor vehicle for lack of jurisdiction. The motion was denied. The jury returned a verdict of guilty, and defendant received a one year sentence.\nThe issue before this court is whether the superior court lacked jurisdiction to try the misdemeanor charge once the felony charge had been dismissed.\nAttorney General Edmisten by Associate Attorney General Barbara P. Riley for the State.\nAppellate Defender Adam Stein by James R. Glover for defendant appellant." }, "file_name": "0286-01", "first_page_order": 318, "last_page_order": 323 }