N.C.G.S. § 8C-1, Rule 901(b)(5) (2001) allows the admission of
voice identifications. “It is well established that 'error may not
be predicated upon a ruling which admits . . . evidence unless . .
. a timely objection or motion to strike appears of record.'”
State v. McCray, 342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995)
(motion to strike in court identification of defendant denied
because not raised until after further questions had been asked by
trial counsel) (quoting N.C.G.S. § 8C-1, Rule 103(a)(1) (1992)).
When an identification has already been admitted into evidencewithout objection, any future objection to the admission of that
evidence is waived.
See N.C.R. App. P. 10(b)(1);
Main Street
Shops, Inc. v. Esquire Collections,
Ltd., 115 N.C. App. 510, 445
S.E.2d 420 (1994) (holding defendant's objection to admission of
the contents of an envelope had been waived when evidence of such
contents was already admitted without objection).
At trial, the defense objected to Epps' testimony that the
voice he recognized at all four break-ins was defendant's.
However, Epps had already separately identified the voice he
recognized at each individual break-in as defendant's. Defendant
failed to object to any of these prior identifications. Thus, the
identification defendant objected to at trial had already been
admitted without objection. Accordingly, defendant had waived any
objection to Epps' subsequent voice identification. This
assignment of error is overruled.
Defendant next assigns as error the trial court's refusal to
allow defendant to alter State's Exhibit No. 1, a photo line-up
including defendant, in order to test Epps' ability to recognize
defendant's eyes. Defense counsel taped nine pieces of paper
across the photograph, blocking exposure of all but each person's
eyes, and attempted to use it to cross-examine Epps. The trial
court refused to allow defendant to use the altered exhibit.
Defendant asserts this deprived him of his constitutional right to
confront the witness. This argument is without merit.
Defendant was never denied the ability to effectively confront
or cross-examine Epps. Furthermore, the trial court did not denydefendant the ability to confront the witness with an altered copy
of the photo line-up. He was simply not allowed to alter State's
Exhibit No. 1 in doing so. Specifically, the trial court stated,
“In the future, I'll let you mark your own exhibits, not the
State's exhibits.” “The trial court has wide discretion in
controlling the scope of cross examination and its rulings should
not be disturbed unless prejudicial error is clearly demonstrated.”
State v. Wright, 52 N.C. App. 166, 178, 278 S.E.2d 579, 588 (1981).
We discern no abuse of discretion. Accordingly, this assignment of
error is overruled.
Defendant next contends the trial court erred in allowing the
State to present evidence of the two prior break-ins at Epps' home.
We disagree.
N.C.G.S. § 8C-1, Rule 404(b) (2001) provides that evidence
of other crimes, wrongs, or acts may be admissible for “purposes[]
such as proof of motive, opportunity, intent, preparation, plan,
knowledge,
identity, or absence of mistake, entrapment or
accident.” (emphasis added).
Rule 404(b) presents
a clear 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).
Thus, so long as the evidence is relevant for some purpose
other than “to prove the character of a person in order to show
that he acted in conformity therewith[,]” it is admissible. Rule404(b). In the present case, the State presented evidence of the
8 and 14 August 1999 break-ins in an attempt to prove defendant's
identity as the perpetrator of the 11 December 1999 and 22 April
2000 break-ins. Proving identity is specifically enumerated as a
purpose for which evidence of prior crimes may be admitted under
Rule 404(b).
The fact that such evidence may also tend to show
that defendant has a propensity to commit such crimes is not fatal
to its admission.
See Coffey, 326 N.C. at 279, 389 S.E.2d at 54
(evidence that is relevant for proving something other than
defendant's character is nonetheless admissible even if it shows
defendant's propensity to commit such acts).
Additionally, Rule 404(b) “includes no requisite that the
evidence tending to prove defendant's identity as the perpetrator
of another crime be direct evidence, exclusively.”
State v. Jeter,
326 N.C. 457, 459, 389 S.E.2d 805, 806 (1990). Circumstantial
evidence tending to prove defendant's identity is admissible.
Id.
The general rule of inclusion of prior acts set forth in Rule
404(b) is limited by two factors, similarity and temporal
proximity.
State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d
120, 123 (2002). First, relevant evidence of prior acts is
admissible to prove identity if there is “substantial evidence
tending to support a reasonable finding by the jury that the
defendant committed the similar act [or crime].”
State v. Stager,
329 N.C. 278, 303, 406 S.E.2d 876, 890 (1991). In order for a
prior act to be considered similar to the act on trial, there must
be “'some unusual facts present in both crimes or particularlysimilar acts which would indicate that the same person committed
both crimes.'”
State v. Green, 321 N.C. 594, 603, 365 S.E.2d 587,
593 (1988) (quoting
State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d
422, 426 (1986)). However, such “similarities need not rise to the
level of the unique and bizarre, but must tend to support a
reasonable inference that the same person committed both the
earlier and the later acts.”
State v. Gary, 348 N.C. 510, 521, 501
S.E.2d 57, 65 (1998).
Defendant contends “the only 'similarities' among any of the
offenses were those typical of any burglary and generic in nature.”
Defendant relies heavily on the Court's opinion in
Al-Bayyinah.
The
Al-Bayyinah Court determined that evidence of prior store
robberies was inadmissible. However, the facts of
Al-Bayyinah are
distinguishable from the instant case. In
Al-Bayyinah, the prior
robberies were committed at different stores, at a different time
of day, using different levels of violence, and against different
victims.
Al-Bayyinah, 356 N.C. at 151-53, 567 S.E.2d at 121-22.
In the instant case, each break-in or attempted break-in occurred
at the Epps' residence. Each occurred early in the morning while
defendant was asleep or about to go to sleep. In each instance
when Epps saw defendant, defendant wore a shirt pulled up over his
nose and a toboggan down on his head. Some amount of money was
sought or stolen from Epps at each break-in and each time Epps
recognized defendant's voice. In contrast to the facts of
Al-
Bayyinah, the similarities present in this case rise above thelevel of those common to break-ins and support an inference the
same person committed all four break-ins.
In addition, the level of similarity in the present case rises
above those of several other cases where evidence of prior acts
have been admitted.
See,
e.g.,
State v. Hoffman, 349 N.C. 167, 505
S.E.2d 80 (1998) (admitting evidence of two prior bank robberies
in same region as jewelry store robbery where same type of car was
seen outside store and defendant used same type of gun and wore a
ski mask);
State v. Moore, 94 N.C. App. 55, 379 S.E.2d. 858 (1989)
(admitting evidence of prior rape where similarities were that act
was at night and women were alone in a motel room);
State v.
Harlee, 85 N.C. App. 159, 354 S.E.2d 348
(evidence of prior phone
conversation admitted to show identity when victim recognized
defendant's voice),
cert. denied, 320 N.C. 173, 358 S.E.2d 60
(1987). We conclude there is sufficient similarity in this case to
overcome the similarity constraint on Rule 404(b).
The second constraint on the general rule of inclusion in Rule
404(b) is temporal proximity.
Al-Bayyinah, 356 N.C. at 154, 567
S.E.2d at 123. Defendant asserts that too much time elapsed since
the two August break-ins to be admitted under Rule 404(b).
However, “remoteness in time generally affects only the weight to
be given such evidence, not its admissibility.”
Stager, 329 N.C.
at 307, 406 S.E.2d at 893. Furthermore, a long line of precedent
exists where prior acts over the course of several years have been
admitted, in contrast to the nine months in this case.
See, e.g.,
id. (evidence of husband's death ten years earlier);
State v.Sneeden, 108 N.C. App. 506, 424 S.E.2d 449 (1993) (admitting
evidence of 1967 and 1990 rapes),
aff'd, 336 N.C. 482, 444 S.E.2d
418 (1994). Because evidence of the prior break-ins are relevant
to establishing defendant's identity, and are sufficiently similar
and not too remote in time to the acts charged, the trial court
properly admitted them under Rule 404(b). This assignment of error
is overruled.
Defendant next assigns as error the trial court's denial of
defendant's motion to dismiss at the close of the State's evidence
and at the close of all the evidence. Defendant contends there was
insufficient evidence for a jury to conclude defendant committed
the offenses charged.
Because defendant elected to present evidence after moving to
dismiss at the close of the State's evidence, defendant waived
review of his first dismissal motion.
State v. Bruce, 315 N.C.
273, 280, 337 S.E.2d 510, 515 (1985). Thus, review is limited to
the denial of defendant's motion to dismiss at the close of all the
evidence.
In ruling on a motion to dismiss, the trial court must
view all the evidence in the light most favorable to the State and
resolve every reasonable inference in its favor.
State v. Jaynes,
342 N.C. 249, 464 S.E.2d 448 (1995). The trial court need not take
into account only direct evidence.
State v. Lucas, 353 N.C. 568,
581, 548 S.E.2d 712, 721 (2001). Circumstantial evidence is
provided the same weight.
Id.
A motion to dismiss must be denied when “there is substantial
evidence (1) of each essential element of the offense charged, orof a lesser offense included therein, and (2) of defendant[] being
the perpetrator of such offense.”
State v. Scott, 356 N.C. 591,
595, 573 S.E.2d 866, 868 (2002). “Substantial evidence is that
amount of relevant evidence necessary to persuade a rational juror
to accept a conclusion.”
Id. at 597, 573 S.E.2d at 869. “If the
evidence is sufficient only to raise a suspicion or conjecture as
to either the commission of the offense or the identity of the
defendant as the perpetrator of it, the motion should be allowed.”
Id. at 595, 573 S.E.2d at 868. However, such evidence need not
exclude every possible theory of innocence.
State v. Stone, 323
N.C. 447, 452, 373 S.E.2d 430, 433 (1988). In the instant case,
there is ample evidence from which a rational finder of fact could
conclude defendant committed the crimes charged. This assignment
of error is overruled.
After careful review, we find defendant's remaining arguments
without merit.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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