STATE OF NORTH CAROLINA
v. Forsyth County
No. 00 CRS 58316
ROBERT LEE HINTON, JR.
Attorney General Roy Cooper, by Assistant Attorney General
Susan R. Lundberg, for the State.
William M. Speaks, Jr., for defendant-appellant.
BRYANT, Judge.
On 22 January 2001, defendant was indicted on a charge of
first degree burglary. The case was tried at the 25 June 2001
Criminal Session of Forsyth County Superior Court.
The State presented evidence at trial which tended to show the
following: On 11 November 2000, Marion McKeever was in her home in
Winston-Salem, North Carolina. Sometime around 1:30 a.m., McKeever
heard glass falling in her home and told her husband that somebody
was breaking in. McKeever went to investigate, and found the
defendant standing beside a lamp in her living room holding a knife
and pointing it at her. McKeever picked up a broom, began swinging
it at defendant, and yelled for her husband to get his gun. Whenher husband responded that he was coming, defendant ran from the
home. McKeever then called 911.
Officers Horatious Bowen, Kelvin Murphy and James Wooten of
the Winston-Salem Police Department responded to the 911 call and
went to the McKeever's home. Mrs. McKeever gave police a
description of the intruder, a report of the break-in and told them
which way the intruder ran. Shortly after their arrival, the
officers received a report that a foot pursuit was in progress and
a possible suspect was headed in their direction. Officer Wooten
stepped outside the house, spotted defendant running by the house,
yelled for him to stop and joined the pursuit. Officer Bowen was
able to catch defendant and subdue him. A search of defendant's
person revealed a pocket knife. Defendant was then placed in the
backseat of a patrol car, and Officer Murphy escorted Mrs. McKeever
outside to take a look at him. Officer Wooten testified that Mrs.
McKeever "positively identified" defendant as the person who
entered her home "without hesitation."
At trial, the State offered the testimony of Irma Jackson to
prove defendant's motive and intent. Jackson testified that on 10
October 2000, defendant broke into her utility shed and stole
various items. Defendant objected to Jackson's testimony, and the
trial court instructed the jury that the evidence was admissible
solely to prove defendant's motive and intent. Defendant testified
and admitted that he broke into the McKeever's home, that he did so
because he was delusional after smoking crack cocaine, believed
that he saw "figures" chasing him, and that he sought "refuge." Defendant was convicted of first degree burglary and sentenced
to 114 to 146 months imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred by admitting evidence of other crimes committed by him.
Specifically, Ms. Jackson testified that defendant broke into her
utility shed and stole certain items from it. Defendant asserts
that the evidence was too dissimilar to the facts of this case to
be admitted pursuant to Rule 404(b). See State v. Artis, 325 N.C.
278, 384 S.E.2d 470 (1989) (holding that when the features of the
earlier act are dissimilar from those of the offense with which the
defendant is currently charged, such evidence lacks probative
value), cert. granted, judgment vacated by Artis v. North Carolina,
494 U.S. 1023, 108 L. Ed. 2d 604 (1980). Defendant argues that the
shed was unoccupied, unattached, and that the break-in occurred in
daylight, whereas the offense charged here involved breaking into
an occupied dwelling at night. Accordingly, defendant contends
that it was prejudicial error for the evidence to be admitted.
After careful review of the record, briefs and contentions of
the parties, we find no error. This Court has stated that:
While evidence of defendant's prior misconduct
may not be admitted to show that he has the
propensity to commit an offense of the nature
of the crime charged, such evidence may be
admitted to show defendant's "motive,
opportunity, intent, preparation, plan,
knowledge, [or] identity."
State v. Lytch, 142 N.C. App. 576, 583, 544 S.E.2d 570, 574
(citations omitted), disc. rev. denied, 354 N.C. 224, 554 S.E.2d
653 (2001) (alteration in original), aff'd by 355 N.C. 270, 559S.E.2d 547 (2002); See N.C.G.S. § 8C-1, Rule 404(b). "'When prior
incidents are offered for a proper purpose, the ultimate test of
admissibility is whether they are sufficiently similar and not so
remote as to run afoul of the balancing test between probative
value and prejudicial effect set out in Rule 403.'" State v.
Beckham, 145 N.C. App. 119, 121, 550 S.E.2d 231, 234 (2001)
(quoting State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197
(1991)). In the present case, the State offered testimony from Ms.
Jackson that defendant had broken into her utility shed and taken
various items. The break-in occurred in the same neighborhood
approximately one month prior to the break-in at issue here.
Furthermore, we note that the trial court instructed the jury to
consider this evidence for intent or motive and not to prove the
offense for which defendant was being tried. Accordingly,
considering the closeness in time and geography, as well as the
fact that both involved break-ins, we conclude that the previous
incident was sufficiently similar to be admissible pursuant to Rule
404(b).
Even assuming arguendo that the evidence should not have been
admitted pursuant to Rule 404(b), we conclude that defendant was
not unduly prejudiced by its admission. This Court has stated
that:
"The party who asserts that evidence was
improperly admitted usually has the burden to
show the error and that he was prejudiced by
its admission." Evidentiary errors are
harmless unless a defendant proves that absent
the error a different result would have been
reached at trial.
State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d 889, 893,
disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001) (citations
omitted). Here, there was overwhelming evidence of defendant's
guilt. Mrs. McKeever testified and defendant admitted to: (1)
breaking into the McKeever's home by breaking a window in the door
of the house and reaching in and unlocking the door; (2) the break-
in occurred in the middle of the night, around 1:30 a.m., and (3)
defendant had a knife in his hand which he pointed at Mrs.
McKeever. Shortly after the break-in, defendant was apprehended
nearby and was positively identified by Mrs. McKeever. A search of
defendant incident to his arrest revealed a small pocket knife in
his pocket. Thus, even if Ms. Jackson's testimony regarding
defendant's prior break-in of her shed had not been admitted, it is
unlikely that a different result would have occurred at trial.
Accordingly, we find no error.
No error.
Judges MARTIN and HUNTER concur.
Report per Rule 30(e).
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