An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-11


Filed: 06 September 2005


         v.                        Mecklenburg County
                                No. 03 CRS 210579-81

    Appeal by defendant from judgments entered 25 August 2004 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 08 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John C. Evans, for the State.

    Bryan E. Gates for defendant-appellant.

    STEELMAN, Judge.

    On 17 March 2003, defendant was indicted on charges of sale of cocaine, delivery of cocaine, and possession with intent to sell or deliver cocaine. At trial, the State introduced evidence tending to show the following: Detective Grimsley was parked in an Auto Zone parking lot at approximately 7:05 p.m. on 6 February 2003. He was working undercover to purchase cocaine from an individual who would be accompanying a confidential informant.
    The confidential informant and defendant drove into the parking lot approximately five minutes later. Defendant got out of the vehicle, walked over to Detective Grimsley's unmarked vehicle, and got into the front passenger seat. He told Detective Grimsleythat he had an ounce of marijuana and a quarter of an ounce of crack cocaine, and asked Detective Grimsley what he wanted. Detective Grimsley said he wanted an eighth of an ounce of crack cocaine. Defendant then used his teeth to break the rock of crack cocaine in half. Detective Grimsley gave defendant $160.00 and defendant handed him one of the pieces. He observed defendant from a distance of one to one-and-a-half feet during the transaction, which took less than two minutes. Detective Grimsley testified that he could see defendant's facial features in the ambient lights from the street.
    Defendant got out of the vehicle upon completing the transaction and returned to the front passenger seat of the vehicle driven by the confidential informant. As Detective Grimsley drove out of the parking lot, he radioed nearby officers that the drug purchase had occurred and defendant was in the front passenger seat of the vehicle that was following him. He gave a brief physical description of defendant and the vehicle he was riding in.
    Detective Grimsley testified the intention was to stop the confidential informant's vehicle for identification purposes. The uniformed officers were to obtain defendant's name and then release him so that Detective Grimsley could make future drug purchases from him. Detective Grimsley saw the uniformed officers stop the confidential informant's vehicle, and then pulled into an adjoining parking lot. He observed that defendant got out of the vehicle and then fled on foot from the uniformed officers. Detective Grimsley saw the uniformed officers pursue defendant.     Officer J.B. Helms testified that he and Officer Carlos Lopez, Jr. stopped the confidential informant's vehicle. When Officer Helms requested identification, defendant produced a North Carolina identification card with his name and address. After defendant exited the vehicle, Officer Lopez searched defendant's pockets and found nothing. When Officer Helms asked defendant to take off his boot, however, defendant began running. Both officers chased defendant for approximately a minute and a half. Near the end of the chase, Officer Helms saw defendant bend down, reach into his boot, and throw something. After apprehending defendant, Officer Helms returned to the area where he saw defendant throw the item and recovered a bag of marijuana.
    In response to a motion by defendant at the start of trial, the trial court conducted a voir dire before allowing Officer Brian Scharf to testify about a prior incident involving defendant. Officer Scharf identified defendant as an individual whom he had observed at approximately 8:00 p.m. on 5 February 2002 at a location approximately one-quarter to one-half mile from the Auto Zone parking lot. Defendant was standing with several other individuals between two houses. When defendant saw Officer Scharf's patrol vehicle pulling up, he began to walk away. As Officer Scharf exited his vehicle, defendant immediately took off his jacket and began running away. Officers were unable to catch him, but they did search the jacket. They discovered nine grams of marijuana and fifty-four rocks of crack cocaine.
    Following the voir dire of Officer Scharf, the trial courtoverruled defendant's objection that his testimony was inadmissible under Rule 404(b) of the Rules of Evidence. After Officer Scharf testified to the jury about the 5 February 2002 incident, the trial court gave the jury a limiting instruction that it could only consider the evidence for the purposes of showing identity, intent, and plan or scheme.
    At the close of the State's evidence, defendant moved to dismiss the charges for insufficiency of the evidence. The trial court denied the motion. Defendant presented no evidence and renewed his motion to dismiss, which the trial court denied. The jury found defendant guilty on all charges. The trial court sentenced defendant to consecutive terms of eight to ten months for possession with intent to sell or deliver cocaine and sixteen to twenty months imprisonment for the charge of sale of cocaine. The trial court arrested judgment on the charge of delivery of cocaine. Defendant appeals.
    Defendant contends the trial court committed reversible error by allowing Officer Scharf's testimony about the prior incident that occurred on 5 February 2002. Defendant asserts such testimony was inadmissible under Rule 404(b) of the Rules of Evidence. We disagree.
    Rule 404(b) governs the admissibility of evidence concerning defendant's prior acts of misconduct. Rule 404(b) provides:
        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) (2004). Rule 404(b) is a rule of inclusion not exclusion. State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001). Accordingly, such evidence will be “admissible so long as it is relevant to any fact or issue other than the character of the accused[,]” and the other crimes or wrongs are connected by both temporal proximity and circumstance. Id. (citations and internal quotation marks omitted). “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.” State v. Stevenson, ___ N.C. App. ___, ___, 611 S.E.2d 206, 209 (2005). “The similarities need not be 'unique and bizarre.'” Id. (citations omitted).
    Here, the Officer Scharf's testimony concerning the 5 February 2002 incident was admissible to prove a number of the listed purposes, namely defendant's identity, intent, plan, or common scheme. Here, notable similarities exist between the offense that is the subject of this appeal and the prior incident involving Officer Scharf. First, both incidents occurred at or near the Auto Zone. Second, both instances involved marijuana and crack cocaine. Third, in each instance as defendant fled from the police he threw away his drugs. See Stevenson, ___ N.C. App. at ___, 611 S.E.2d at 210 (citing similar incidents).
    While the prior incident occurred about a year before the onefrom which defendant appeals, remoteness in time is less significant when the prior conduct is used to show identity, intent, or common plan or scheme, as is the case here. Id. at ___, 611 S.E.2d at 210. Thus, the trial court did not err in determining the evidence was admissible under Rule 404 (b). This argument is without merit.
    For the foregoing reasons, we find defendant received a fair trial, free from error.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***