NO. COA01-1324
In his brief, defendant brings forward only one assignment of
error, thereby abandoning the remaining seven assignments of error
of record.
See N.C. R. App. P. 28(b)(6). His sole argument is
that the trial court erred in allowing the State to offer evidence,
pursuant to G.S. § 8C-1, Rule 404(b), that defendant committed a
previous armed robbery in 1997.
Wendell Floyd was permitted to testify that on the evening of
29 January 1997 he was waiting at a bus stop at the Great American
Food Store. Floyd stated that defendant and another man approached
him and asked if he “want[ed] to buy any weed.” Floyd responded
that he did not need any drugs because he was “already high.”
Floyd testified defendant then pulled out a gun and forced him
behind a dumpster at gunpoint. Once behind the dumpster,
defendant's accomplice removed money from Floyd's pocket.
In addition, Sergeant C.A. Duryea of the Winston-Salem Police
Department testified that on the evening Floyd was robbed, he was
in the area of the Great American Food Store, located about one-
half mile from the intersection where Burnette was shot, in his
capacity as a member of the drug enforcement unit. Sergeant Duryea
testified that Floyd flagged him down and told him that he had just
been robbed by two men. Floyd relayed to Sergeant Duryea that the
two men approached him offering to sell him drugs, pulled a gun on
him, and then directed him at gunpoint behind a dumpster where theyrobbed him of his money. Floyd then pointed to the two men, who
were walking down the street approximately one block away.
Sergeant Duryea and two other officers approached the suspects, one
of whom was defendant. Floyd identified the two men as the robbers
and defendant as the one who had used the gun. Sergeant Duryea
testified that he frisked defendant and found a revolver and some
cash in his front pants pocket. He further testified that
defendant was arrested and pled guilty to common law robbery and
carrying a concealed weapon as a result of the incident.
Prior to the admission of the evidence, the trial court heard
arguments on its admissibility outside the presence of the jury.
The trial court determined the evidence was sufficiently similar to
the crimes at issue to be admissible for the purpose of
establishing motive, intent, and
modus operandi. The trial court
further found the probative value of the evidence outweighed its
potential prejudice. The trial court gave a limiting instruction
that the evidence of the 29 January 1997 robbery of Floyd was
admissible only insofar as it might establish defendant's motive,
intent, or similar
modus operandi with respect to the crimes at
issue. The trial court repeated this limiting instruction in its
final charge to the jury. Defendant argues the testimony regarding
the prior robbery of Floyd was not sufficiently similar to the
crimes at issue to be admissible under Rule 404(b), and even if itwere, the trial court should have excluded the testimony under G.S.
§ 8C-1, Rule 403 (2001) as irrelevant. We disagree.
Rule 404(b) provides:
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). Our Supreme Court has
observed that Rule 404(b) is a 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). Thus, though the evidence may establish other crimes,
wrongs, or acts by defendant and his propensity to commit them, the
evidence is admissible under Rule 404(b) so long as it is also
relevant for some purpose other than showing defendant's propensity
to the commit the crime for which he is being tried.
Id. at 279,
389 S.E.2d at 54.
“When prior incidents are offered for a permissible purpose,
'the ultimate test of admissibility is whether they aresufficiently similar and not so remote as to run afoul of the
balancing test between probative value and prejudicial effect' of
Rule 403.”
State v. Ferguson, 145 N.C. App. 302, 305-06, 549
S.E.2d 889, 892 (citation omitted),
disc. review denied, 354 N.C.
223, 554 S.E.2d 650 (2001) . A prior act is sufficiently similar
to warrant admissibility under Rule 404(b) if there exist similar
facts which would indicate the same person committed both crimes.
State v. Sokolowski, 351 N.C. 137, 522 S.E.2d 65 (1999). It is not
necessary that the similarities between the two situations “'rise
to the level of the unique and bizarre' in order for the evidence
to be admitted under Rule 404(b).”
State v. Thomas, 350 N.C. 315,
356, 514 S.E.2d 486, 511 (citation omitted),
cert. denied, 528 U.S.
1006, 145 L. Ed. 2d 388 (1999).
In the present case, the evidence reveals sufficient
similarities between the 29 January 1997 robbery of Floyd and the
robbery of Burnette to allow a reasonable inference that the same
person perpetrated both crimes. Both incidents, which occurred in
the same vicinity, involved defendant approaching the victim under
the auspices of having marijuana to sell for the purpose of robbing
the victim of money. In both cases, defendant used a small handgun
which he kept in his pants pocket to perpetrate the robbery.
Further, as with the Floyd robbery, the testimony with respect to
this case tended to show defendant had an accomplice. Statewitness Theon Joe testified that he and defendant attempted to rob
a man in the same vicinity earlier in the evening. Defendant held
a handgun on a man while Joe attempted unsuccessfully to obtain
money from the victim's pockets. A short time later, both
defendant and Joe observed the Burnette car pull up to the
intersection of 21
st Street and Cleveland Avenue, following which
defendant and Joe conversed with Aaron about the marijuana. We
hold these similarities are sufficient to support the trial court's
admission of evidence of the prior robbery under Rule 404(b).
We further hold the trial court did not abuse its discretion
in determining that the probative value of the evidence outweighed
the prejudice to defendant under Rule 403. In any event, defendant
cannot meet his burden of establishing that any error in the
admission of the testimony was prejudicial in light of the
overwhelming evidence against him.
See N.C. Gen. Stat. § 15A-
1443(a) (2002) (defendant establishes prejudicial error only where
“there is a reasonable possibility that, had the error in question
not been committed, a different result would have been reached” at
trial). The State presented the testimony of several witnesses to
the event, all of which clearly established that defendant shot
William Burnette. Betty Leann Burnette identified defendant as the
man whom she saw shoot William Burnette. Steve Hinson, who was
seated in the backseat of the Burnettes' car, testified defendantwas standing at the driver's side window of their car while William
was counting his money in the driver's seat; that defendant ordered
William to give him the money; that when William refused, the two
struggled briefly for the money; and that defendant then pulled out
a black revolver and shot William. Kedrick Wagner, who was seated
in the backseat directly behind William Burnette, identified
defendant as the man who was leaning inside the Burnettes' car when
the shots were fired, and stated that no one else was standing near
the vehicle at that time. Brandon Lilly, who was seated in the
front passenger seat of the Burnettes' car when the shooting took
place, corroborated Hinson's and Wagner's testimony. Aaron, who
was still standing outside the vehicle when the shooting occurred,
testified that he heard defendant order William Burnette to give
him the money, and that he then witnessed defendant shoot Burnette
twice, hesitate, and shoot once more before running away.
In addition, the State presented the testimony of Marco Owens,
who was standing at the intersection at issue when the Burnettes'
vehicle drove up. Owens testified that he witnessed defendant
approach the Burnettes' car and that moments later he heard
gunshots. Owens further testified that he had seen defendant
earlier that evening near the same intersection carrying a black
handgun and overheard him talking about robbing someone. Theon Joe
testified that he and defendant had attempted to rob a man in thesame vicinity earlier in the evening, that defendant was carrying
a gun on the evening in question, and that he and defendant saw the
Burnette car stop at the intersection of 21
st Street and Cleveland
Avenue. Joe testified that he saw defendant, who was still
carrying a gun in his pants, approach the Burnettes' car, that he
heard defendant arguing with people in the car, and that soon
thereafter, two shots were fired.
In light of the foregoing evidence, we do not believe there is
a reasonable possibility of a different result had the evidence of
the 1997 robbery been excluded; therefore, even if the admission of
Floyd's testimony was error, it does not entitle defendant to a new
trial. N.C. Gen. Stat. § 15A-1443(a).
No error.
Judges TYSON and THOMAS concur.
Report per Rule 30(e).
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