An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-571


Filed: 1 March 2005


         v.                        Greene County
                                No. 02 CRS 50814

    Appeal by defendant from judgment entered 2 April 2003 by Judge Charles H. Henry in Greene County Superior Court. Heard in the Court of Appeals 3 January 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Elaine R. Pope, for the State.

    Nora Henry Hargrove for defendant-appellant.

    ELMORE, Judge.

    Defendant Alonza Thomas Wade challenges his convictions for felonious possession of stolen goods and having attained the status of habitual felon. As discussed below, we remand this matter for resentencing.
    Defendant was charged with felonious possession of stolen goods and having attained the status of habitual felon. The State's evidence tended to show that, sometime between close of business on 3 June 2002 and the morning of 4 June 2002, someone broke into 427 Auto Service Center (Service Center) by cutting the fence surrounding the car lot. The owners of the Service Center, Joe and Linwood Wright, reported the break-in and theft of tires, rims, and stereo equipment to the Pitt County Sheriff's Department. About 11 days after the break-in, Joe Wright realized that 13 temporary license tags, numbers 11294513 through 11294525, were also missing.
    Sometime after midnight on 2 August 2002, Deputy David Tyndall and his partner, Detective Billy Luter of the Greene County Sheriff's Department, stopped defendant while he was driving his gray Acura automobile. Deputy Tyndall recognized defendant and knew defendant did not have a driver's licence. The deputy removed the temporary tag, number 11294513, from the Acura. After removing the tag, the deputy noticed that the tag had been incorrectly completed to show that it expired in “30 days,” instead of the specific date of expiration. Although Deputy Tyndall did not issue a citation to defendant, the deputy did notify defendant's probation officer, James Byrum, of the stop.
    As a result, on 4 August 2002, Byrum visited defendant's home on Meadow Drive, where the probation officer observed an Acura and an older model GM vehicle with temporary tag numbers 11294519 and 11294521, respectively. Byrum reported his observations to Major John W. Burrus of the Greene County Sheriff's Department, whereupon Major Burrus confirmed that the tags were stolen. Major Burrus requested that Byrum contact a deputy to seize the tags in the event that he observed them at defendant's residence in the future. On 5 August 2002, Byrum returned to defendant's residence, along with Greene County Sheriff's Deputy John Willis, and advised defendant that he knew the tags to be stolen and that he was going to take them. Defendant told Byrum that he got the tags from hisuncle.
    On 28 August 2002, Department of Motor Vehicles License and Theft Inspector Andy Heath and Major Burrus met with defendant to question him about the stolen temporary tags. After being given his Miranda rights, defendant waived his rights and made a statement, in which he admitted to paying Jamal May $5.00 each for two 30 day tags, which he knew to be stolen. At trial, Joe Wright confirmed that he did not provide defendant with the temporary tags.
    Over defendant's objection, the trial court allowed testimony by Major Burrus and Charles Snipes, former owner of the Snipes Ford dealership in Goldsboro, North Carolina, regarding the previous arrest of defendant and Jamal May, in connection with the 2000 larceny and possession of a stolen vehicle from his lot. The trial court allowed this testimony for the limited purpose of showing that defendant knew or should have known the tags were stolen and/or the absence of mistake.
    After being instructed on both misdemeanor and felonious possession of stolen property, the jury found defendant guilty of the felony. Defendant thereafter, pursuant to a plea agreement, admitted to having attained the status of habitual felon. The plea agreement provided that defendant would receive a mitigated range sentence. As agreed by the parties, the State stipulated to the existence of two mitigating factors. The trial court subsequently sentenced defendant as a level IV offender to a mitigated sentence of 96 to 125 months imprisonment. Defendant appeals.    On appeal, defendant first argues that the trial court erred in admitting evidence of the 2000 break-in of Snipes Car Dealership. We disagree.
    N.C.R. Evid. 404(b) governs the admissibility of evidence regarding “other crimes, wrongs, or acts.” State v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991). That is, “the evidence must be offered for a proper purpose, must be relevant, must have probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant, and, if requested, must be coupled with a limiting instruction.” Id. N.C.R. Evid. 404(b) provides that relevant evidence of other crimes, wrongs or acts may be admissible for other purposes, such as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Id. To be relevant in a particular case, evidence of prior bad acts must be sufficiently similar to the crime charged and be temporally proximate to that crime. See State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). This Court has, however, noted “[T]he similarities between the crime charged and the prior acts . . . need not 'rise to the level of the unique or bizarre' in order to be admissible.” State v. Brothers, 151 N.C. App. 71, 76, 564 S.E.2d 603, 607 (2002)(citation omitted). Moreover, “remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991).
    Rule 404(b) has been noted to be a rule of inclusion, and notexclusion. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Notably, Rule 404(b) evidence is further “subject to the weighing of probative value versus unfair prejudice mandated by Rule 403.” State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). To that end, our Supreme Court noted in Coffey, that evidence which is probative of the State's case is necessarily prejudicial to the defendant; “the question is one of degree.” Agee, 326 N.C. at 550, 391 S.E.2d at 176 (citing Coffey, 326 N.C. at 278-79, 389 S.E.2d at 54 (1990)). “Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.” Id.
    In the instant case, defendant contends that the evidence of the 2000 break-in at the Snipes Ford dealership was not sufficiently similar or temporally proximate to the August 2002 break-in at the Service Center to be relevant and admissible under Rule 404(b). Defendant references our Supreme Court's decision in Al-Bayyinah, 356 N.C. at 150, 567 S.E.2d at 120, in support of his argument in this regard. In Al-Bayyinah, the Supreme Court concluded that 404(b) evidence of previous robberies was not sufficiently similar to the crimes charged in that particular case, so as to have been properly admitted to show defendant's identity. The Court found that the details of the prior robberies-- i.e., the robber wore dark clothing, hid his face, carried a weapon, demanded money and fled when he obtained the money-- were generic to the act of robbery, and did not necessarily show any similarity to the crimes charged. In light of the improper pretrial identificationprocedures and the factual dissimilarity between the prior robberies and the crimes charged, the Supreme Court held that the trial court erred in admitting the subject Rule 404(b) evidence.
    Al-Bayyinnah is readily distinguishable from the case at bar. While the 404(b) evidence was admitted in Al-Bayyinnah to show identity, the 404(b) evidence in this case was admitted to show knowledge or absence of mistake. Further, the 404(b) evidence here tended to show that defendant was arrested and, after specifically implicating himself and Jamal May in the 2000 break-in at the Snipes Ford dealership, pled guilty to possessing stolen property, which had been taken during that break-in. The facts also tend to show that the 2000 break-in was accomplished, after business hours, by driving a vehicle through the fence surrounding the dealership. The thieves escaped with a customer's Ford Explorer, wheels and tires from a Harley-Davidson truck; and stereos and other items were stolen from other customers' vehicles. In the 2002 break-in, thieves broke into the Service Center car lot, after business hours, by cutting the fence surrounding the lot. The thieves stole tires, rims, and stereo equipment from cars on the lot.
    Unlike the facts in Al-Bayyinah, the 2000 and 2002 break-ins are sufficiently similar and temporally proximate to be relevant. As noted by this Court previously, the similarities between the prior bad acts and the crime charged need not rise to the level of “unique” or “bizarre” to be admissible. See Brothers, 151 N.C. App. at 76, 564 S.E.2d at 607. We further determine that the two-year interval between the prior break-in and the present offense is notso remote in time to preclude its admissibility. The interval between the prior bad act and the crime charged goes to the weight of the evidence here, and does not preclude its admissibility. See Stager, 329 N.C. at 307, 406 S.E.2d at 893.
    Since the evidence here was relevant, and tended to show that defendant knew or should have known that the tags bought from Jamal May, a previous co-defendant in a theft of automobile-related items from a car dealership, were stolen, we conclude that the evidence was properly admitted under Rule 404(b). Further, though the evidence may have been necessarily prejudicial, we conclude that it was not unduly so, so as to be excluded under the Rule 403 balancing test. Accordingly, the trial court did not abuse its discretion in admitting the subject evidence.
    Defendant next argues that the trial court erred in calculating his prior record level. Specifically, defendant contends that the trial court used the same convictions in calculating his prior record level as was utilized for indicting him as an habitual felon. Defendant, therefore, requests that his case be remanded for resentencing.
    It is well-settled that a defendant's prior conviction cannot be used both to calculate his record level pursuant to G.S. 15A- 1340.14, and to establish his status as an habitual felon pursuant to G.S. 14-7.1. N.C. Gen. Stat. § 14-7.6 (2003). However, there is nothing prohibiting the trial court “from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same weekto determine prior record level.” State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996), quoted in State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693 (2001).
    A thorough review of the record does, indeed, show that the trial court improperly used defendant's convictions in 99 CRS 07000 (possession of stolen goods) and 00 CRS 050457 (possession of stolen goods) to calculate his prior record points and to indict him as an habitual felon-- which calls into question four of the prior record points assigned by the trial court. Significantly, the remaining eight points are not challenged by defendant and appear to have been properly assigned.
    As to the use of the conviction in 00 CRS 050457, we note that the defendant was convicted of three separate counts of felony possession of stolen goods on the same date: 00 CRS 050457 (date of offense: 3 October 2000); 00 CRS 050468 (date of offense: 29 September 2000); and 00 CRS 050469 (date of offense: 1 September 2000). Though the trial court could have utilized one of the two remaining felony possession of stolen goods convictions in calculating defendant's prior record level, the trial court specifically listed 00 CRS 050457 on the prior record worksheet, in violation of N.C. Gen. Stat. § 14-7.6. Further, it appears that the trial court erred in using defendant's conviction in 99 CRS 07000 to calculate his prior record points and again to charge him as an habitual felon. Since it is not clear on this record whether defendant's prior record level was properly calculated to be Level IV, this matter must be remanded for resentencing.
    Having so concluded, we hold that defendant received a fair trial. The matter must, however, be remanded for resentencing.
    No error in defendant's trial; vacated and remanded for resentencing.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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