STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 01 CRS 62233 & 39721
LARRY DOUGLAS WATLINGTON
Attorney General Roy Cooper, by Assistant Attorney General
Margaret P. Eagles, for the State.
Michael J. Reece for defendant-appellant.
McGEE, Judge.
Larry Douglas Watlington (defendant) was convicted on 30
August 2002 of felony possession of cocaine in violation of N.C.
Gen. Stat. § 90-95 and of attaining the status of habitual felon.
The trial court found defendant to have a prior record level VI and
sentenced defendant to a minimum term of 168 months and a maximum
term of 211 months imprisonment. Defendant appeals.
The evidence at trial tended to show that on 29 November
2001, Winston-Salem Police Officers Michael Pattisall and A.J.
Santos were on foot patrol in an area that included Happy Hill
Garden, a public housing complex. Officer Pattisall observed
defendant and another man walking towards him. Officer Pattisall
recognized defendant as an individual previously banned from HappyHill Garden by the Winston-Salem Housing Authority. When defendant
saw Officer Pattisall, he turned and began walking away, but then
defendant observed Officer Santos and turned back towards Officer
Pattisall. Officer Pattisall saw defendant throw a small object to
the ground. As Officer Pattisall arrested defendant, Officer
Santos retrieved the item that defendant had thrown to the ground.
During his arrest, defendant stated to Officer Pattisall, "you
didn't see me throw anything, one of your boys might have, but you
didn't see me throw nothing." The object was a cellophane
cigarette pack wrapper containing a white residue, which was later
determined to be cocaine. Officer Santos testified that
transporting crack in a cellophane wrapper was unusual.
Over defendant's objection, Officer T.J. Convery of the
Winston-Salem Police Department testified about a prior incident
involving defendant's possession of cocaine. Officer Convery
testified that on 27 September 1999, he was patrolling an area less
than one mile from the Happy Hill Garden area when he was waved
down by defendant. Defendant requested a ride to an elementary
school several miles away. Defendant was allowed into the back
seat of the patrol car after Officer Convery frisked him for
weapons and checked to ensure there was nothing in the back seat.
During the ride, Officer Convery noticed defendant was "acting
suspicious" and trying to move something behind his back. Upon
arrival at the school, Officer Convery used his flashlight to look
into the rear of the vehicle. He observed a crack pipe and
immediately arrested defendant. Officer Convery then found a smallpiece of folded cellophane on the back seat of the vehicle. The
cellophane was from a cigarette pack and it contained a white
substance which field tested positive for cocaine. Upon searching
defendant, Officer Convery found a second piece of cellophane also
containing white residue which field tested positive for cocaine.
Officer Convery testified this was the first time he had seen
cocaine stored in cellophane.
We first note defendant has failed to present an argument in
support of assignments of error two, four, and five through
thirteen, and they are deemed abandoned pursuant to N.C.R. App. P.
28(b)(6).
Defendant first argues the trial court erred by admitting the
testimony of Officer Convery regarding the September 1999 incident
when defendant was arrested for possession of cocaine. Defendant
contends admission of this evidence was in violation of Rule 404(b)
of the North Carolina Rules of Evidence, which provides in part:
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) (2003).
Rule 404(b) is a rule of inclusion of relevant evidence of
prior bad acts unless the only reason the evidence is offered is to
show a defendant's propensity or disposition to commit a crime of
the nature of the act charged. State v. Ferguson, 145 N.C. App.
302, 305, 549 S.E.2d 889, 892, disc. review denied , 354 N.C. 223,554 S.E.2d 650 (2001). Regarding common scheme or plan, our
Supreme Court has explained this exception in the following manner:
"Evidence of other offenses is admissible if it tends to show the
existence of a plan or design to commit the offense charged, or to
accomplish a goal of which the offense charged is a part or toward
which it is a step." State v. Barfield, 298 N.C. 306, 329, 259
S.E.2d 510, 529 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d
1137 (1980), overruled on other grounds, State v. Johnson, 317 N.C.
193, 203-04, 344 S.E.2d 775, 782 (1986). Further, our Supreme
Court has stated that "evidence that defendant committed similar
acts which are not too remote in time may be admitted to show that
these acts and those for which the defendant is being tried all
arose out of a common scheme or plan on the part of the defendant."
State v. Rosier, 322 N.C. 826, 828, 370 S.E.2d 359, 360-61 (1988).
"A mere similarity in results is not a sufficient basis upon which
to receive evidence of other offenses. Instead, there must be such
a concurrence of common features that the assorted offenses are
naturally explained as being caused by a general plan." Barfield,
298 N.C. at 329, 259 S.E.2d at 530. "There must be some unusual
facts present in both crimes or especially similar acts which would
indicate that the same individual perpetrated both crimes." State
v. Barts, 316 N.C. 666, 685-86, 343 S.E.2d 828, 841 (1986).
In the case before us, Officers Pattisall and Santos found a
cellophane cigarette pack wrapper containing cocaine residue which
defendant had thrown to the ground as the officers were approaching
him. Similarly, two years earlier Officer Convery arresteddefendant for possession of cocaine, which defendant had stored in
two cigarette pack cellophane wrappers. Both Officers Santos and
Convery testified to the uniqueness of transporting cocaine in this
manner. When asked how many times he had come into contact with
this use of cellophane cigarette pack wrappers through his work,
Officer Santos replied, "honestly, probably this one, first one
that I have ever seen packaged like that." Further, when Officer
Convery was asked whether he had ever seen crack packaged in
cellophane, he stated, "I believe this was the first time." This
testimony establishes the unusual facts contemplated by Barts. In
addition to the similar storage method of the same drug, both
incidents occurred less than a mile from one another.
Regarding Officer Convery's testimony, defendant also argues
the prior incident was too remote in time to constitute a common
scheme or plan.
The use of evidence as permitted under
Rule 404(b) is guided by two constraints:
similarity and temporal proximity. . . . When
otherwise similar offenses are distanced by
significant stretches of time, commonalities
become less striking, and the probative value
of the analogy attaches less to the acts than
to the character of the actor.
State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989),
sentence vacated and remanded on other grounds, 494 U.S. 1023, 108
L. Ed. 2d 604 (1990). Here, although the incidents occurred two
years apart, in light of prior cases, this time gap is not too
great to render the evidence inadmissible. Barfield, 298 N.C. at
329, 259 S.E.2d at 529 (death four years prior admitted in murder
trial under common scheme or plan). Therefore, the similaritiesbetween the events and the acceptable time difference between the
occurrences made Officer Convery's testimony admissible under the
common plan exception in Rule 404(b) of the North Carolina Rules of
Evidence. Accordingly, this assignment of error is overruled.
Defendant also argues the trial court erred by failing to
instruct the jury to limit its use of evidence of prior bad acts
admitted, pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b). Since
defendant failed to object at trial, we review defendant's argument
under a plain error review. N.C.R. App. P. 10(c)(4); State v.
Rourke, 143 N.C. App. 672, 675, 548 S.E.2d 188, 190, cert. denied,
354 N.C. 226, 553 S.E.2d 396 (2001). Plain error is one "'so
fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than it
otherwise would have reached.'" State v. Carroll, 356 N.C. 526,
539, 573 S.E.2d 899, 908 (2002), cert. denied, ___ U.S. ___, 156 L.
Ed. 2d 640 (2003) (quoting State v. Bagley, 321 N.C. 201, 213, 362
S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d
912 (1988)).
In this case, there was compelling evidence that defendant
possessed cocaine on 29 November 2001. Officer Pattisall testified
that he saw defendant throw an object on the ground as he
approached defendant and the object was later determined to be a
cellophane cigarette pack wrapper containing cocaine residue.
Therefore, even if the trial court's failure to give a limiting
instruction was error, the omission was not so fundamental that it
would have resulted in the jury reaching a different verdict. Accordingly, the trial court did not commit plain error when it did
not give the jury a limiting instruction pertaining to the prior
cocaine possession evidence.
No error.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
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