State v. Huffman

248 S.E.2d 407 (1978)

38 N.C. App. 584

STATE of North Carolina v. Herbert HUFFMAN.

No. 7813SC597.

Court of Appeals of North Carolina.

November 7, 1978.

*409 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Thomas F. Moffitt, Raleigh, for the State.

H. Goldston Womble, Jr., Elizabethtown, for defendant-appellant.

ERWIN, Judge.

Having carefully considered defendant's arguments on this appeal, we conclude that he received a fair trial, free of prejudicial error.

Defendant presents seven arguments on appeal. He first contends that the trial court abused its discretion in denying his motion for a change of venue or in the alternative for a special venire. Defendant points out that the case received extensive local news coverage, and apparently certain newspaper photographs were used at the trial. Such motions are addressed to the trial judge's sound discretion, and an abuse thereof must be shown for there to be error in their denial. State v. Hood, 294 N.C. 30, 239 S.E.2d 802 (1978); State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). We see no abuse of that discretion on the record before us. The record does not show defendant's examination of prospective jurors nor does it reflect that he exhausted his peremptory challenges. See State v. Dollar, supra.

Defendant next contends that the trial court abused its discretion in denying his motion for a continuance. Again, a motion for a continuance is normally a matter of trial court discretion. Defendant appears to argue that denial of the motion prejudiced him by giving counsel insufficient time to prepare for trial:

"Defendant contends that the securing of the indictments and arraignment one week prior to trial, together with the fact that retained counsel had not long been associated on the case, worked to his prejudice in the research and preparation of his case."

If the motion is based upon a constitutional right, the question is one of law, and the decision of the trial court is reviewable. State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977); State v. McDiarmid, 36 N.C. App. 230, 243 S.E.2d 398 (1978). Where such constitutional issues are raised by the motion's denial, whether defendant's rights have been denied is to be determined based on the circumstances of each case. State v. McFadden, supra; State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976).

Here, defendant does not show how his case would have been better prepared had the continuance been granted, nor does he show that he was prejudiced by the motion's denial. The record shows that the case was well tried, cross examination was vigorous, and counsel presented and argued various motions on defendant's behalf throughout the trial. We find no merit in this contention of defendant.

Four of defendant's further arguments pertain to the trial court's consolidation of the charges of second degree rape and assault with a deadly weapon with intent to kill and to its denial of various motions of defendant to require the State to elect between the two charges. We see no prejudicial error.

A continuous series of acts by a defendant, occurring at the same time and as parts of one entire plan of action, may constitute separate criminal offenses. State v. Midyette, 270 N.C. 229, 154 S.E.2d 66 (1967); State v. Vawter, 33 N.C.App. 131, 234 S.E.2d 438 (1977), cert. denied, 293 N.C. 257, 237 S.E.2d 539 (1977). Clearly, we are not here confronted with a lesser included offense, nor was the State's proof of assault with a deadly weapon with intent to kill an indispensable element in the State's proof of second degree rape. Cf. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972). Even assuming error by the trial court in failing to put the State to an election, it was effectively cured by its arrest of judgment on the assault with a deadly weapon inflicting serious injury conviction.

*410 Finally, defendant urges that the trial court erred in denying his motion for judgment as of nonsuit at the close of all the evidence. He maintains in support of this contention that at no point did Mrs. Dockery testify that the sexual acts were without her consent. Her testimony, however, clearly tends to show that defendant committed the offense through violence and the inducement of fear. "Consent" induced by violence or the threat thereof is not a defense to the charge of rape. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), modified on other grounds, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205 (1976).

In the trial below, we find

No error.

MORRIS and ARNOLD, JJ., concur.