State v. Sink , 31 N.C. App. 726 ( 1976 )

BROCK, Chief Judge.

Each defendant was convicted of felonious breaking or entering and of felonious larceny. Each defendant was sentenced to a term of ten years’ imprisonment on the breaking or entering count. Also each defendant was sentenced to a consecutive term of imprisonment on the larceny count. Yet in the record on appeal counsel has included only the judgment and commitment for breaking or entering with respect to defendant Sink, and only the judgment and commitment for larceny with respect to defendant Lewis. Also in the brief counsel refers only to one judgment and commitment as to each defendant.

This Court caused the additional judgment as to each defendant to be certified by the trial court. Therefore, the record in this Court now shows that each defendant was convicted and sentenced both for breaking or entering and for larceny as set out in the statement of facts above. It is the duty of counsel to present to the appellate division a correct record of the trial proceedings.

Defendants argue that the trial court committed error in denying their motions to suppress the testimony of Allen Odell Smith, the State’s principal witness, on the ground that Allen Odell Smith was not mentally competent to testify. A voir dire was conducted upon defendants’ motions to suppress. The State offered the testimony of Dr. Bob Rollins, who was stipulated to be qualified to give his opinion in the area of forensic psychiatry. The defendants offered the testimony of Dr. Douglas Gold, who was permitted to testify as an expert in clinical psychology. At the conclusion of the testimony the trial judge ruled that Allen Odell Smith was competent to testify for the State. We perceive no error in this ruling. It seems clear to us from the voir dire testimony that Allen Odell Smith was found to be of ordinary or above ordinary intelligence. His credibility under all of the circumstances was for jury determination. This assignment of error is overruled.

Defendants argue that it was error to permit Allen Odell Smith to testify concerning breaking or entering the Carolina Aluminum Building. They argue that this testimony was evidence of their commission of an unrelated, independent offense which is forbidden by the rule laid down in State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). Defendants overlook the well established exceptions as set out in State v. McClain, supra, e.g.:

“Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused.”

“Evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. (Citations omitted.) Evidence of other crimes receivable under this exception is ordinarily admissible under the other exceptions which sanction the use of such evidence to show criminal intent, guilty knowledge, or identity.

In our opinion defendants received a fair trial free from prejudicial error.

No error.

Judges Parker and Hedrick concur.