STATE OF NORTH CAROLINA
v
.
Forsyth County
Nos. 00 CRS 22020, 25307
JERMAINE HARRIS
Attorney General Roy Cooper, by Assistant Attorney General
John F. Maddrey, for the State.
Bryan Gates for defendant-appellant.
WALKER, Judge.
Defendant was convicted of possession with intent to sell and
deliver cocaine. He pled guilty to a charge of being an habitual
felon and was sentenced to a minimum term of 118 months and a
maximum term of 151 months in prison.
The evidence at trial tended to show that on 2 May 2000 at
about 11:40 p.m., Officers Andrew Goldberg and D.R. Crews of the
Winston-Salem Police Department made a traffic stop of a vehicle in
which defendant was a passenger. Defendant exited the vehicle
through the right front passenger door and quickly walked away from
the scene despite Officer Goldberg's request to speak with him. At
that time, both Officers Goldberg and Crews remained with the
vehicle and the driver, Shannon Kimbro. After Officer Goldbergdiscovered a clear plastic bag containing marijuana inside the
vehicle on the left side of the front passenger seat, he called for
another officer to locate and return defendant to the scene.
Officer Goldberg then discovered another clear plastic bag
containing cocaine on the ground a few inches from the passenger
door of the vehicle where defendant had exited. Defendant was
returned to the scene and placed under arrest.
Officer Goldberg testified that defendant stated that when the
vehicle was stopped, Kimbro removed the bag of marijuana and bag of
cocaine from his pants pocket, passed the bags to defendant and
told him to “hold this stuff.” Defendant further stated that the
marijuana and cocaine did not belong to him since nothing was found
on his person.
At trial, the State sought to introduce evidence surrounding
defendant's prior drug offenses through testimony of Officers Steve
Tolley and Doug Nance. Officer Tolley's testimony related to two
of defendant's previous drug offenses occurring on 10 January and
22 July 1997. Officer Nance testified as to defendant's statements
made to him during an October 1997 interview. Defendant objected
to the admission of the evidence of the prior drug offenses on the
grounds that it was not offered for a proper purpose under N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2001).
The trial court conducted a voir dire during which Officer
Tolley testified about the 10 January 1997 stop of a vehicle in
which defendant was a passenger. On this occasion, Officer Tolley
observed defendant reach into the center console of the vehicle andpass an item to the passenger occupying the back seat. After
searching the vehicle, Officer Tolley discovered marijuana, a bag
of cocaine and a handgun concealed in the rear passenger area of
the vehicle. Later, defendant stated to Officer Tolley “[y]ou
can't put that on me. I was in the front.” Officer Tolley also
testified to an incident occurring on 22 July 1997, when he was
working with another officer who had observed defendant engaging in
hand-to-hand transactions indicative of drug dealings. When
Officer Tolley approached the apartment which defendant had entered
after making the transactions, he observed defendant and another
person enter a bedroom and immediately turn off the lights.
Officer Tolley obtained consent to search the bedroom and found a
bag of crack cocaine under the bed where defendant had been
present. Defendant made no statement to Officer Tolley.
Officer Nance's voir dire testimony related to his interview
of defendant on 14 October 1997, when defendant was being held for
trafficking cocaine. Defendant told Officer Nance of an incident
occurring around the middle 1990s, in which defendant and his
associates had hidden drugs in a field for the purpose of
“avoid[ing] detection” should an officer attempt to search them for
drugs.
After hearing the evidence and arguments from the State and
the defendant, the trial court ruled that the evidence of
defendant's prior incidents was admissible under Rule 404(b)
because it was “highly probative of whether or not [defendant]knowingly possessed cocaine in May of 2002” and the probative value
far outweighed the prejudicial effect of this evidence.
Defendant contends the prior incidents are not sufficiently
similar to the present offense to show a common plan, knowledge or
modus operandi to be admissible under N.C. Gen. Stat. § 8C-1, Rule
404(b)(2001). Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). The rule is one of
inclusion, “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) (emphasis in original). As long as the prior acts
provide “substantial evidence tending to support a reasonable
finding by the jury that the defendant committed a similar act or
crime and its probative value is not limited solely to tending to
establish the defendant's propensity to commit a crime such as the
crime charged,” the evidence is admissible under Rule 404(b).
State v Stager, 329 N.C. 278, 303-304, 406 S.E.2d 876, 890 (1991)
(emphasis in original). Further, this Court has held that, “'[i]n
drug cases, evidence of other drug violations is relevant and
admissible if it tends to show . . . knowledge of the presence and
character of the drug . . . .'” State v. Montford, 137 N.C. App.495, 500, 529 S.E.2d 247, 251, cert. denied, 353 N.C. 275, 546
S.E.2d 386 (2000) (emphasis added) (citations omitted).
Where evidence of prior conduct is relevant to an issue other
than the defendant's propensity to commit the crime, “the ultimate
test for determining whether such evidence is admissible is whether
the incidents are sufficiently similar and not so remote in time as
to be more probative than prejudicial under the balancing test of
N.C.G.S. § 8C-1, Rule 403.” State v. Boyd, 321 N.C. 574, 577, 364
S.E.2d 118, 119 (1988). Such determination of similarity and
remoteness is made by the trial court on a case-by-case basis, and
the trial court's decision to admit or exclude evidence under the
Rule 403 balancing test controls absent a showing of abuse of
discretion. State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554
(1992); State v. Wilkerson, 148 N.C. App. 310, 313, 559 S.E.2d 5,
7 (2002) . The required degree of similarity is that which results
in the jury's “reasonable inference” that defendant committed both
the prior and present acts. Stager, 329 N.C. at 304, 406 S.E.2d at
891 (emphasis in original). The similarities need not be “unique
and bizarre,” but some “unusual facts” common to each instance of
defendant's conduct must be present. State v. Sokolowski, 351 N.C.
137, 150, 522 S.E.2d 65, 73 (1999) (citations omitted).
In Wilkerson, a test tube containing cocaine was found on
defendant. Wilkerson, 148 N.C. App. at 311, 559 S.E.2d at 6. At
defendant's trial, two law enforcement officers each testified to
prior instances of possession or sale of cocaine by defendant. Id.
The trial court admitted the testimony regarding the defendant'sprior drug convictions under Rule 404(b), finding the evidence was
probative of the defendant's intent and knowledge and was not
unfairly prejudicial. Id. at 314, 559 S.E.2d at 8. On appeal,
defendant argued the trial court committed prejudicial error by
admitting the testimony of prior incidents. However, the Wilkerson
Court noted four similarities between the prior incidents and the
present offense: (1) the events occurred at the same location, (2)
defendant was present at each, (3) all the crimes involved cocaine
and (4) the prior incidents occurred within a year of the present
offense. Id. This Court held that, because of these similarities,
the evidence was admissible under Rule 404(b) to show intent and
knowledge and that the probative value of the evidence outweighed
any potential prejudice under Rule 403. Id. at 314-17, 559 S.E.2d
at 8-9.
Here, as in Wilkerson, similarities exist between the prior
incidents and the present offense: (1) as above, all the incidents
involved cocaine, (2) the cocaine was found in close proximity to
defendant but not on his person, and (3) another individual was
present or involved in each of the prior incidents.
Defendant also contends that the three earlier incidents took
place in 1997 and are too remote in time to be probative. Our
Supreme Court has stated that remoteness is a less significant
factor in determining Rule 404(b) admissibility when the prior acts
go to prove something other than a common plan or scheme, such as
defendant's knowledge. State v. Lloyd, 354 N.C. 76, 91, 552 S.E.2d
596, 610 (2001); Stager, 329 N.C. at 307, 406 S.E.2d at 893. Prioracts occurring as long as twenty-three years before the charged
offense have been held as not too remote and probative of non-
character issues. State v. Sneeden, 108 N.C. App. 506, 510, 424
S.E.2d 449, 452 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994).
Further, “'[i]t is proper to exclude time defendant spent in prison
when determining whether prior acts are too remote.'” Lloyd, 354
N.C. at 91, 552 S.E.2d at 610 (2001) (quoting State v. Berry, 143
N.C. App. 187, 198, 546 S.E.2d 145, 154, disc. rev. denied, 353
N.C. 729, 551 S.E.2d 439 (2001)).
In this case, the trial court did not abuse its discretion in
admitting the evidence of the prior incidents which tended to show
defendant's knowledge, identity and lack of mistake and was not
offered to demonstrate defendant's propensity to commit the charged
crime. Furthermore, the trial court did not abuse its discretion
in determining that the prior incidents were not too remote and
that the probative value of the evidence outweighed the prejudicial
effect.
During the charge conference, defendant requested an
instruction on his right not to testify which the trial court
agreed to give. The trial court inadvertently omitted defendant's
requested instruction when it charged the jury; however, defendant
failed to object. Before the jury reached a verdict, the trial
court corrected the omission by reinstructing the jury regarding
defendant's right not to testify and his right not to put on
evidence. The jury resumed its deliberation and returned with a
verdict a short time later. Defendant contends that the trial court's failure to give his
requested instruction regarding his right not to testify
constitutes prejudicial error entitling him to a new trial. Under
our Rules of Appellate Procedure, a party may not assign as error
an omission in the jury instruction unless the party objects before
the jury retires for deliberation. N.C.R. App. P. 10(b)(2) (2001).
However, our Supreme Court has held that a party may assign error
absent an objection if that party requested the instruction during
a charge conference, and the trial court agreed to give the
instruction but failed to do so. State v. Ross, 322 N.C. 261, 265,
367 S.E.2d 889, 891 (1988). Because the defendant's right not to
testify in his own defense is constitutionally protected, the State
must prove that the omitted jury instruction constitutes harmless
error.
Here, when the trial court realized the inadvertent omission,
it gave appropriate additional instructions before the jury
rendered its verdict. Thus, any possible prejudice to the
defendant was cured.
No error.
Chief Judge EAGLES concurs.
Judge BIGGS concurs in the result with separate opinion.
Report per Rule 30(e).
STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 00 CRS 22020, 25307
JERMAINE HARRIS
BIGGS, Judge concurring in result with separate opinion.
While I agree with the majority that the trial court did not
abuse its discretion in admitting the evidence of defendant's prior
incidents under Rule 404(b), I do not believe the incidents tend to
establish either intent or knowledge as the majority suggests.
Rather, I find much more compelling the trial court's determination
that the prior incidents tend to demonstrate the absence of mistake
or accident. The court noted “the last three times that this
individual has had contact with the police department, he's had
cocaine within almost arm's reach of him.” Thus the prior
incidents were probative in that they tended to negate any
inference of inadvertent or accidental connection between the
defendant and the drugs. See State v. Stager, 329 N.C. 278, 406
S.E.2d 876 (1991) (evidence of similar acts may be offered under
Rule 404(b) to show that the act in dispute was not inadvertent,
accidental or involuntary).
Moreover, it is clear that the admission of the evidence was
highly prejudicial to defendant in that, absent the admission of
the three prior incidents, it is unlikely that the State could haveestablished its case; however, I cannot conclude that the trial
court abused its discretion in applying the balancing test under
Rule 403. See State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988)
(where decision is in the sound discretion of the trial court it
will not be overturned on appeal unless it is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision).
Accordingly, I concur in result only.
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