STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 03 CRS 210579-81
ELLIOT DARNELL MATHIS
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.
NO ERROR.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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