An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-392


Filed: 15 March 2005


v .                         Richmond County
                            Nos. 03 CRS 50814,
                                03 CRS 1571

    Appeal by defendant from judgment entered 12 September 2003 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 17 November 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.

    L. Jayne Stowers, for defendant-appellant.

    CALABRIA, Judge.

    John Philmore Carpenter appeals from judgment entered on a jury verdict finding him guilty of felonious breaking or entering. Defendant was sentenced as a prior record level IV habitual felon to 133 to 169 months in the North Carolina Department of Correction. We find no error.
    The evidence at trial shows that, on or about 22 December 2002, Philip Hinson (“Hinson”) purchased a twenty-inch Husqvarna chain saw for $60.00 from Dewayne Benoist (“Benoist”), Hinson's sister's boyfriend. Approximately one month later, defendant and Benoist went to Hinson's home to steal the chain saw for the purpose of selling it to someone else to obtain money for cocaine. The chain saw was located in a storage building used as a shop areanext to Hinson's home, and Benoist and defendant accomplished the theft by cutting the lock securing the storage building with bolt cutters. Benoist's testimony regarding what they did with the chain saw after they left Hinson's home conflicted, and the chain saw was never recovered.
    Prior to trial and again at trial, defendant moved for discovery of any information regarding whether any adverse witnesses had pending criminal cases which might result in a motive to “curry favor with the State by providing desired testimony.” At trial, Benoist testified for the State regarding defendant's involvement in the theft of the chain saw. Benoist testified, over objection, as to previous crimes he and defendant committed together, and the trial court admitted the testimony after a voir dire hearing as evidence of a common scheme or plan and motive under N.C. Gen. Stat. § 8C-1, Rule 404(b). Benoist admitted to some, but not all, of his previous convictions during the State's direct examination and further testified he had no promises of leniency from the State with respect to pending charges against him before the Superior Court. The jury returned a verdict finding defendant guilty of felonious breaking or entering, and judgment was entered thereon. Defendant appeals.
    On appeal, defendant asserts a new trial is warranted because (I) the State failed to reveal an understanding or agreement of leniency between the State and Benoist, (II) the trial court erroneously admitted evidence of four other crimes, and (III) the trial court erroneously admitted hearsay testimony.I. Leniency
    In his first assignment of error, defendant, citing inter alia United States v. Bagley, 473 U.S. 667, 87 L.Ed.2d 481 (1985), asserts a witness' credibility is affected and due process requires a new trial “where the prosecution's chief witnesses had deals which were not disclosed to the defense and the witnesses lied about having deals.” Defendant contends that it is “obvious” and “apparent” from the record that Benoist had some understanding with the State about leniency. The only support for defendant's assertion is that the subsequent plea bargain for Benoist included the dismissal of ten felony and four misdemeanor counts against him. The State rejoins that this case is controlled by our Supreme Court's holding in State v. Lowery, 318 N.C. 54, 347 S.E.2d 729 (1986), rejecting a similar claim by a defendant for two independent reasons: (1) “the record clearly reveal[ed] a plea bargain between the State and [a witness, but] there [was] no evidence that the agreement [was] made at the time [the witness] testified . . . at the defendant's trial” and (2) “defendant's counsel was aware sufficiently in advance of trial that the witness was going to testify for the State under a hope of leniency to have brought out in cross-examination the circumstances under which the testimony was being offered.” Id., 318 N.C. at 65, 347 S.E.2d 737. We agree with the State.
    Regarding the first reason, the only evidence defendant has proffered is the subsequent plea bargain deal Benoist received after his testimony. Based on this, defendant assumes there was apromise of leniency for Benoist's cooperation and asserts the failure to reveal this alleged promise warrants a new trial. However, Benoist expressly denied any promise of leniency or understanding was made with respect to his pending cases during discussions with the district attorney or investigating detectives. Defendant's pure supposition, based upon the terms of the subsequent plea bargain between Benoist and the State, simply is not enough under Lowery without some evidence that Benoist testified at defendant's trial pursuant to some agreement. Parenthetically, we note defendant directs the attention of this Court to Benoist's incorrect testimony that he had not met with prosecutors or law enforcement regarding the case sub judice; however, defendant concedes the State immediately corrected Benoist's testimony, and the fact that such a meeting occurred, standing alone, is not sufficient evidence that any agreement or understanding was reached. This assignment of error is overruled.
II. Rule 404(b) Evidence
    In his second assignment of error, defendant asserts the trial court erred in permitting Benoist to testify as to break-ins by defendant and himself other than the one for which defendant was being tried. North Carolina General Statutes § 8C-1, Rule 404(b) (2003) disallows using “[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show that he acted in conformity therewith.” See also State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis altered))(noting that Rule 404(b) requires exclusion of relevant evidence of other crimes, wrongs or acts by a defendant “'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'”). However, such evidence may be used “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). Thus, Rule 404(b)'s “rule of inclusion,” although “constrained by the requirements of similarity and temporal proximity[,]” see Al-Bayyinah, 356 N.C. at 154, 567 S.E.2d at 123, does not generally operate to exclude “[e]vidence of a prior bad act . . . if it constitutes 'substantial evidence tending to support a reasonable finding by the jury that the defendant committed the similar act.'” Id., 356 N.C. at 155, 567 S.E.2d at 123 (quoting State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876, 890 (1991) (quotation marks omitted)).
    Comparing the four other incidents to the case at bar, all the incidents happened within the relatively short time frame of 25 November 2002 to 14 February 2003. In each case, defendant and Benoist stole the items either at night or in the late afternoon. Items stolen in each theft could be easily disposed of for money and were associated with construction sites, including saws, carpenter tools, and a generator. Moreover, the places which were broken into were construction sites or areas where things associated with construction would be stored, including two trailers on wheels, a storage building, and a house underconstruction. In all but one of the incidents, defendant and Benoist used bolt cutters to cut the lock securing a latch on the door to the area into which they were breaking. At the remaining site, the house under construction, the evidence indicates defendant and Benoist used a screwdriver on a door lock to gain entry; thus, bolt cutters would be neither useful nor necessary. In all but one case, defendant and Benoist stole the items in order to get money for drugs. Even in the remaining incident, Benoist testified they stole the property to sell it, but added that it “didn't go down that way[.] [Defendant] took the generator, and he used it to get a car.”   (See footnote 1)  The specificity and nature of the similarities to which Benoist testified vitiates the contention that these acts would be generic to any breaking or entering, and, surveying the overwhelming similarities, we perceive no abuse of discretion by the trial court. Defendant's reliance on differences in how the stolen items were disposed of and slight variances between each incident cannot obviate the basic and striking commonalities between them. We likewise summarily dismiss defendant's purported reliance on the distinction between the house under construction as real property and the trailers and storage building as personal property. This assignment of error is overruled.
III. Hearsay    In his final assignment of error, defendant asserts the trial court erred in overruling his non-specific objection to Detective Bender's inclusion, as part of one of his answers to a question asked in cross-examination, that defendant was “identified in [Detective Bender's] other three cases.” Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). “However, out of court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.” State v. Thomas, 350 N.C. 315, 339, 514 S.E.2d 486, 501 (1999). “[S]tatements of one person to another to explain subsequent actions taken by the person to whom the statement was made are admissible as nonhearsay evidence.” Id.
    In the instant case, Detective Bender testified on direct examination that he had investigated three break-ins in the Pinehurst area where tools were stolen. Detective Bender subsequently recovered some of the stolen tools and first spoke with Benoist on 19 February. At that time, Benoist denied any knowledge of the three Pinehurst break-ins. However, on 8 April when Detective Bender served him with three arrest warrants for the Pinehurst break-ins, Benoist gave a written statement implicating himself and defendant. Detective Bender then testified concerning the reported dates of the offenses and stated the warrants served on 8 April were taken out on 7 April.     On cross-examination, defendant asked Detective Bender if Benoist took responsibility for the Pinehurst break-ins on 7 April and interrupted Detective Bender's answer (concerning when he procured Benoist's statement) to ask whether it was 8 April, the day the warrant was served, or the previous day. When Detective Bender affirmed that Benoist took responsibility for the crimes on 8 April, defendant questioned him regarding whether there were multiple statements made and whether “everything [was] done on the same day[.]” At that point, Detective Bender began, without objection, to recapitulate his course of action from the beginning with respect to Benoist as follows:
        I think what happened is on February 17 [Benoist] committed a break-in in Pinehurst. On the 19th of February I arrested Benoist. He talked to me about that break-in on the 17th of February. I asked him about the other break-ins that occurred in Pinehurst, and he said he had no knowledge of it. Then when we found the items recovered and the defendants were identified in my other three cases --[.]

At that point, defendant objected, and the trial court overruled the objection, noting that defendant “asked him to explain. He can explain.” In continuing, Detective Bender noted the identification from the other three cases “led [him] to the defendant and Dwayne Benoist who was charged on [8 April] when the Warrants were served.”
    We agree with the trial court that, due to the evident confusion regarding the dates and times of Detective Bender's interaction with Benoist and defendant's questions with regards to that series of events, Detective Bender was entitled to explain thecourse and reasoning of his actions. Detective Bender's testimony was not offered for the truth of whether defendant was identified in other cases for which he was not presently on trial but rather for the purpose of explaining the course of events leading up to and including the drawing of the warrants on 7 April, the serving of the warrants and the arrest of Benoist on 8 April, and Benoist's inconsistent statements with respect to his involvement in and responsibility for the Pinehurst break-ins. As such, the testimony was offered for a nonhearsay purpose, and defendant's assignment of error is overruled.
    No error.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
     The record indicates some of the money from another of the break-ins was used to purchase both drugs and Christmas gifts.

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