STATE OF NORTH CAROLINA
v. Northampton County
Nos. 00 CRS 2028-30
EARL ALFONSIA GOODE,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Judith Robb Bullock, for the State.
Ernest T. Collins for defendant-appellant.
HUDSON, Judge.
On 2 January 2001, the Northampton County grand jury indicted
defendant on charges of robbery with a dangerous weapon, first
degree burglary, and second degree kidnapping. A jury found
defendant guilty as charged, and the trial court sentenced
defendant to consecutive sentences with a combined minimum term of
280 months and a combined maximum term of 365 months imprisonment.
From the trial court's judgments, defendant appeals.
At trial, the State presented evidence tending to show the
following: At approximately 1:30 a.m. on 26 December 1999, the
back door of Melvin Walden's home was kicked open, and three masked
men armed with automatic handguns entered. They pointed thehandguns at Mr. Walden and his fiancée, then began ransacking the
house and asking where the money was kept. Mr. Walden's hands were
tied behind his back. He identified defendant as the man who held
a gun on him. When defendant took Mr. Walden outside his home at
one point, Mr. Walden observed a white Grand Prix with tinted
windows which was in his driveway with the motor running. After
the three men left about an hour later, Mr. Walden was able to free
himself from his bonds. He testified that his pager, a Play
Station and games, a sword, approximately three hundred dollars in
cash, all of his necklaces, his three watches and other items were
stolen. Mr. Walden initially chose not to report the incident to
police.
Upon learning of the break-in about five months later, Officer
Tony Burnette spoke with Mr. Walden on 26 May 2000. When Mr.
Walden identified defendant in a photographic lineup, he said “I
think he is one.” He also identified Clarence Boone and Erwin
Hughes as the other two perpetrators. His fiancée was unable to
identify any of the perpetrators. When asked why he did not
initially report the incident, Mr. Walden said he was scared for
his family because it had happened to other people and nobody had
done anything about it. Mr. Walden indicated he had planned on
taking matters into his own hands. Officer Burnette testified that
defendant's mother owned a white Grand Prix with tinted windows,
which he had seen defendant drive.
During a voir dire hearing, Belinda Deloatch testified that
she, her fiancé, and her fiancé's two children returned home aftermidnight on 12 May 2000. She noticed her front door appeared to
have been kicked open. Upon seeing an intruder inside their home,
Ms. Deloatch and her fiancé entered the house. Once inside,
however, three men rushed at them. One of the men had a gun. They
bound her fiancé's arms with duct tape and asked where the money
was kept. She said the men tore her house “all to pieces.” After
about forty-five minutes to an hour, her fiancé freed himself and
used a rifle to make the three men leave. Ms. Deloatch looked at
a photographic lineup the next day. She indicated she was not
exactly positive because of the way the men's heads were back in
the photographs, but she said defendant's photograph looked
familiar. When asked if she recognized defendant as one of the men
who came into her home, Ms. Deloatch said “[h]e is the person with
the gun.” Ms. Deloatch testified her home was about a mile and a
half from Mr. Walden's home.
The trial court found Ms. Deloatch's evidence was relevant and
admissible in that the incidents were “sufficiently similar and not
so remote in time as to be more probative than prejudicial on the
balancing test of 8C-1 Rule 403 of the North Carolina Rules of
Evidence.” Ms. Deloatch then testified in conformity with her voir
dire testimony about the incident on 12 May 2000. She also
positively identified defendant as one of the three men after
seeing him in person in the courtroom.
Defendant testified and denied committing the crimes at Mr.
Walden's residence. He asserted he was at a party from 12:30 a.m.
to 3:00 a.m. on the night in question. Defendant also deniedbreaking into Ms. Deloatch's residence and asserted he had not been
charged with any crime related to that incident.
Defendant contends the trial court erred by permitting Ms.
Deloatch to testify. He argues the probative value of that
evidence was substantially outweighed by its prejudicial effect.
Defendant's argument is unpersuasive.
“Evidence of other crimes, wrongs, or acts is . . . admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.” N.C. R. Evid. 404(b) (1999). Rule 404(b)
of the North Carolina Rules of Evidence is a
general rule of inclusion of relevant evidence
of other crimes, wrongs or acts by a
defendant, subject to but one exception
requiring its exclusion if its only probative
value is to show that the defendant has the
propensity or disposition to commit an offense
of the nature of the crime charged.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Although certain evidence may tend to show other crimes, wrongs, or
acts by a defendant and his propensity to commit them, the evidence
is admissible under Rule 404(b) so long as it is relevant for a
purpose other than his propensity for the type of conduct at issue.
See State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876, 890 (1991).
Further constraints upon the admissibility of such evidence under
Rule 404(b) are similarity and temporal proximity. See State v.
Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993). The
similarities between the incidents “must tend to support a
reasonable inference that the same person committed both theearlier and later acts.” State v. Moseley, 338 N.C. 1, 43, 449
S.E.2d 412, 437-38 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed.
2d. 738 (1995).
Evidence may be excluded if its “probative value is
substantially outweighed by the danger of unfair prejudice[.]”
N.C. R. Evid. 403 (1999). “Unfair prejudice,” as used in Rule 403,
means “an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” Commentary,
N.C. R. Evid. 403. The admission or exclusion of evidence under
Rule 403 is within the trial court's sound discretion, and “only
upon a showing that its ruling was so arbitrary that it could not
have been the result of a reasoned decision” may the ruling be
reversed for an abuse of discretion. State v. Thompson, 314 N.C.
618, 626, 336 S.E.2d 78, 82 (1985).
We conclude that the evidence was relevant to the issue of
identity. The similarities between the crimes committed at the
residences of Mr. Walden and Ms. Deloatch support a reasonable
inference that defendant took part in the commission of the crimes.
Entry into both homes occurred in the late evening hours by
apparently kicking a door open. Three men entered the residences
and kept asking the residents where the money was kept. Mr. Walden
identified defendant as one of the perpetrators, and Ms. Deloatch
tentatively identified him. Both victims stated that an
individual used a handgun both times. Money, necklaces, watches,
a video game machine and video games were taken from each of the
residences. We also conclude the crimes at Ms. Deloatch's home were not
too remote in time and proximity from the crimes at Mr. Walden's
home. The crimes at Ms. Deloatch's home occurred within five
months of the crimes at Mr. Walden's home. See, e.g., Stager, 329
N.C. at 307, 406 S.E.2d at 893 (approximately ten-year interval
between acts). Their respective residences are approximately one
and one-half miles apart. We detect no abuse of discretion in the
trial court's decision to allow the admission of Ms. Deloatch's
testimony pertaining to the 12 May 2000 crimes, as they were
sufficiently close in time, and sufficiently similar to the crimes
committed on 26 December 1999. Additionally, the crimes committed
at Ms. Deloatch's home on 12 May 2000 were not too remote in time
from the crimes on 26 December 1999.
The trial court did not err in admitting Ms. Deloatch's
testimony pursuant to Rule 404(b) and Rule 403. This assignment of
error is therefore overruled. Defendant has failed to bring
forward his two remaining assignments of error, and they are deemed
abandoned. See N.C. R. App. Proc. 28(b)(5) (1999).
No error.
Judge TYSON concurs.
Judge GREENE concurs with a separate opinion.
Report per Rule 30(e).
STATE OF NORTH CAROLINA
v
.
Northampton County
Nos. 00 CRS 002028-30
EARL ALFONSIA GOODE
GREENE, Judge, concurring.
Although I agree with the majority, I write separately to
fully address the admissibility of Ms. Deloatch's testimony in
light of its relevancy under Rule 404(b).
*** Converted from WordPerfect ***