On appeal, Defendant contends that the trial court erred in
admitting testimony by Officer Delray Anthony regarding two
incidents of Defendant's prior criminal activities. First, Officer
Anthony testified that on 28 August 1996, he saw Defendant on
premises of the Winston-Salem Housing Authority; Defendant ran, waschased, and was apprehended; Defendant was found to have
approximately thirty rocks of crack cocaine on his person. Second,
Officer Anthony testified that on 23 July 1997, he observed
Defendant on premises of the Winston-Salem Housing Authority, where
he had been banned. When Officer Anthony approached Defendant,
Defendant ran and threw something in a trash can; Defendant was
apprehended, and in Defendant's path, a bag containing rocks of
crack cocaine and a handgun were found.
Defendant argues that the prior incidents were irrelevant and
not sufficiently similar to the present offense to show intent,
knowledge, or a common plan under North Carolina General Statute
section 8C-1, Rule 404(b).
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) (2003). Rule 404(b) 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)
. 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'spropensity to commit a crime such as the crime charged,” the
evidence is admissible under Rule 404(b).
State v Stager, 329 N.C.
278, 303-04, 406 S.E.2d 876, 890 (1991) (citations omitted). In
drug cases, evidence of other drug violations is often admissible
under Rule 404(b).
State v. Montford, 137 N.C. App. 495, 501, 529
S.E.2d 247, 252,
cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).
Where evidence of prior conduct is relevant to an issue other
than the defendant's propensity to commit the charged offense, “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.”
Boyd, 321 N.C. at
577, 364 S.E.2d at 119;
see also, e.g., State v. Bidgood, 144 N.C.
App. 267, 271, 550 S.E.2d 198, 201
(“The use of evidence under Rule
404(b) is guided by two [further] constraints: similarity and
temporal proximity.” (quotation omitted)),
cert. denied, 354 N.C.
222, 554 S.E.2d 647 (2001). The determination of similarity and
remoteness is made on a case-by-case basis, and the required degree
of similarity is that which results in the jury's “
reasonable
inference” that the defendant committed both the prior and present
acts.
Stager, 329 N.C. at 304, 406 S.E.2d at 891. The
similarities need not be “unique and bizarre.”
Id. (quotation
omitted). Finally, once a trial court has determined the evidence
is admissible under Rule 404(b), the court must still decide
whether there exists a danger that unfair prejudice substantially
outweighs the probative value of the evidence. N.C. Gen. Stat. §8C-1, Rule 403 (2003). “That determination is within the sound
discretion of the trial court, whose ruling will be reversed on
appeal only when it is shown that the ruling was so arbitrary that
it could not have resulted from a reasoned decision.”
Bidgood, 144
N.C. App. at 272, 550 S.E.2d at 202.
Here
, notable similarities exist between the offense being
appealed and the prior incidents about which Officer Anthony
testified. First, the incidents all occurred on premises of the
Winston-Salem Housing Authority, from which Defendant was banned.
Second, the incidents all involved crack cocaine. Third, in each
instance Officer Anthony approached Defendant. Fourth, in each
instance Defendant attempted to flee when approached by the police.
These similarities allowed the jury to make a “
reasonable
inference” that Defendant committed both the prior and present
acts.
Stager, 329 N.C. at 304, 406 S.E.2d at 891.
With regard to temporal proximity, the 1996 and 1997 incidents
took place six and five years, respectively, prior to the offense
charged here. The record indicates that Defendant spent part of
the time between the 1996 and 1997 incidents and the 2002 incident
in prison. “It is proper to exclude time defendant spent in prison
when determining whether prior acts are too remote.”
State v.
Berry, 143 N.C. App. 187, 198, 546 S.E.2d 145, 154,
disc. review
denied, 353 N.C. 729, 551 S.E.2d 439 (2001);
see also, e.g., State
v. Lloyd, 354 N.C. 76, 91, 552 S.E.2d 596, 610 (2001) (quoting
Berry in finding it “proper to exclude time defendant spent in
prison when determining whether prior acts are too remote[]”). Moreover, 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 knowledge or intent.
“'[R]emoteness in time is less significant when the prior conduct
is used to show intent, motive, knowledge, or lack of accident;
remoteness in time generally affects only the weight to be given
such evidence, not its admissibility.'”
Lloyd, 354 N.C. at 91, 552
S.E.2d at 610 (quoting
Stager, 329 N.C. at 307, 406 S.E.2d at 893).
Here, while the 1996 and 1997 incidents were admitted to show a
common plan or scheme, for which purpose their remoteness may be
problematic, they were also admitted to show intent and knowledge.
The 1996 and 1997 incidents were thus not too remote to be
admissible.
Defendant also asserts that, even if Officer Anthony's
testimony was admissible under Rule 404(b), the evidence should
have been excluded under Rule 403 of the North Carolina Rules of
Evidence. Rule 403 provides that “evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403 (2003). The
exclusion of evidence under Rule 403 is a matter generally left to
the sound discretion of the trial court,
State v. Mason, 315 N.C.
724, 731, 340 S.E.2d 430, 435 (1986), which we leave undisturbed
unless the trial court's ruling “is manifestly unsupported by
reason or is so arbitrary it could not have been the result of a
reasoned decision[,]”
State v. Syriani, 333 N.C. 350, 379, 428
S.E.2d 118, 133,
cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341(1993).
Here, the trial court did not abuse its discretion by
admitting evidence of Defendant's prior criminal activities
otherwise admissible under Rule 404(b). Rather, the trial court
guarded against the possibility of prejudice by instructing the
jury to consider Officer Anthony's testimony only for the limited
purposes of knowledge, intent, and common plan.
State v. Hyatt,
355 N.C. 642, 662, 566 S.E.2d 61, 75 (2002) (prior misconduct not
unduly prejudicial under Rule 403 where trial court gave limiting
instruction regarding permissible uses of 404(b) evidence).
Lastly regarding this assignment of error, Defendant contends
that, because the 1996 incident was committed prior to Defendant's
eighteenth birthday, evidence regarding that incident was not
admissible under Rule 404(b). “In order to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make[.]” N.C. R.
App. P. 10(b)(1). “Since defendant[] failed to raise this issue
before the trial court our review is limited to plain error.
The
plain error rule only applies in truly exceptional cases.
To
constitute plain error the appellate court must be convinced that
absent the error, the jury probably would have reached a different
verdict.”
(See footnote 1)
State v. Walker, 167 N.C. App. 110, 117 605 S.E.2d 647,
653 (2004) (citing
State v. Odom, 307 N.C. 655, 661, 300 S.E.2d375, 378-79 (1983) (internal citations omitted));
State v. Riddle,
316 N.C. 152, 161, 340 S.E.2d 75, 80 (1986) (same).
Here, we are not convinced that, absent the admission of the
1996 incident, Defendant would not have been convicted in this
case. As stated above, Defendant attempted to flee when approached
by the police. Once apprehended, he was found to have a bag of
marijuana, a bag with cocaine residue, and a large amount of cash
on his person. Moreover, the police testified that they saw
Defendant rip open a bag while he was running. The police then
found crack cocaine on the ground in Defendant's path.
Additionally, Defendant confessed that the marijuana and plastic
bag found on his person were his (though he denied that the
materials found on the ground belonged to him).
In sum, we find no prejudicial error regarding the admission
of Officer Anthony's testimony and overrule Defendant's assignment
of error.
Defendant did not argue his remaining assignments of error.
They are therefore deemed abandoned. N.C. R. App. P. 28(b).
(See footnote 2)
For the foregoing reasons, we affirm Defendant's convictions.
Affirmed.
Judges HUDSON and STEELMAN concur.
Footnote: 1