An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
STATE OF NORTH CAROLINA
No. 04 CRS 063710
WALTER RAY RUSH
Appeal by defendant from judgment entered 14 October 2005 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 8 June 2006.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
James M. Bell, for defendant-appellant.
Walter Ray Rush (defendant) appeals from judgment entered
after a jury found him to be guilty of possession of a stolen motor
vehicle. We find no prejudicial error.
A. State's Evidence
Anthony Collins (Collins) owned a 1989 pearl white Nissan
300-ZX automobile. Collins kept a key to the vehicle inside the
ashtray. The car's driver's side door was broken and would not
open. The only way to enter and exit the vehicle was through the
passenger's side door or through the T-top.
Collins' vehicle was parked at his apartment complex on the
afternoon of 7 November 2004. Collins testified the vehicle wasprobably not locked. Collins prepared to go to work the next
morning and discovered his vehicle missing. Collins called his
wife to determine whether she had moved the vehicle. After she
responded that she had not moved the vehicle, Collins called the
police and reported the vehicle stolen.
Winston-Salem police officer E.N. Johnson (Officer Johnson)
was on patrol during the night of 11 November 2004. At
approximately 11:00 p.m., Officer Johnson observed a pearl white
1989 Nissan 300-ZX enter a gas station located on North Patterson
Avenue and pull up to the pump. Officer Johnson checked the
license tag number and determined the vehicle was stolen.
Officer Johnson called for back-up and parked his patrol car
on the side of the gas station out of view from the front door and
approached defendant as he walked out of the gas station.
Defendant immediately turned around and ran back inside the
building and pushed the door shut. Officer Johnson and the other
officers entered the gas station and took defendant into custody.
Defendant was advised he was under arrest for possession of a
Defendant told Officer Johnson he was a passenger in a black
van parked outside by a gas pump. Defendant gave Officer Johnson
his name and a couple of different birth dates. Defendant stated
his residence was located on Creekway drive, approximately 0.8
miles from Collins' apartment.
Officer Johnson spoke to the store clerk who stated defendant
had paid for a beer with a five dollar bill and requested thechange be used to purchase gas. Officer Johnson observed: (1) the
Nissan's gas cap was open; (2) a single key was inserted into the
ignition; and, (3) the driver's side door would not open.
Officer Johnson transported defendant to the Magistrate's
Office and Miranda warnings were read to him. Defendant gave
Officer Johnson conflicting accounts how he had arrived at the gas
station. Defendant first stated the driver of the black van had
dropped him off. He then stated he was not the only occupant of
the Nissan. Defendant then denied that he was a passenger in the
Nissan at any time.
Collins went to the gas station that night after his vehicle
was recovered. His vehicle was undamaged and the spare key
remained in the ignition. Collins testified that he had never seen
defendant before the theft and never gave him permission to drive
B. Defendant's Evidence
Defendant testified that he rode to the gas station in a black
van with a man named Johnell. Defendant testified his brother knew
Johnell, and that his brother had also ridden in the black van to
the gas station. Defendant went into the store to buy a beer. As
he exited the store, defendant saw that the black van had left. He
opened the door and was approached by about seven officers, and
was arrested inside the gas station.
Defendant testified that he could not find Johnell.
Defendant's brother did not testify for defendant at trial.
Defendant admitted he had pleaded guilty to possession of a stolenmotor vehicle in 2000. He also admitted to prior convictions for
assault on a government official, possession with intent to sell
and deliver cocaine, and two counts of common law robbery.
On 14 October 2005, the jury found defendant to be guilty of
possession of a stolen motor vehicle. Defendant pled guilty to
having attained status as a habitual felon. Defendant was
sentenced to an active term as a prior record level V within the
presumptive range to a minimum of 130 months and a maximum of 165
months. Defendant appeals.
Defendant argues the trial abused its discretion in: (1)
denying defendant's motion to strike certain testimony of Officer
Johnson after the State failed to make Officer Johnson's field
notes available to defendant during discovery; (2) allowing
evidence of defendant's possession of a stolen motor vehicle
conviction in violation of North Carolina Rules of Evidence 404(b)
and 403; (3) denying defendant's motion for limiting instructions
during cross-examination of defendant; and, (4) overruling
defendant's objection to a jury instruction on flight.
III. Motion to Strike Officer Johnson's Testimony
Defendant argues the trial court's denial of his motion to
strike testimony of Officer Johnson after the State failed to make
Officer Johnson's field notes available to defendant during
discovery was reversible error. We disagree.
During cross-examination, Officer Johnson testified that he
took field notes of his conversation with defendant afterdefendant's arrest, but he did not have those field notes with him
in court. Officer Johnson used the field notes to write his report
before the end of his shift and brought that report to court.
During a bench conference, defense counsel moved to strike
statements attributed to defendant and argued the State's failure
to produce the field notes was a discovery violation. The trial
court denied defendant's motion.
Defendant argues Officer Johnson's field notes were required
to be given to defendant in discovery pursuant to N.C. Gen. Stat.
§ 15A-903(a)(1) (2005), which provides:
(a) Upon motion of the defendant, the court
must order the State to:
(1) Make available to the defendant the
complete files of all law enforcement and
prosecutorial agencies involved in the
investigation of the crimes committed or the
prosecution of the defendant. The term file
includes the . . .investigating officers'
notes . . . .
If the court finds a party failed to comply with discovery, the
court may [p]rohibit the party from introducing evidence not
disclosed. N.C. Gen. Stat. § 15A-910(a)(3) (2005). The
imposition of sanctions for failure to comply with discovery rules
rests entirely within the discretion of the trial judge. The
exercise of that discretion, absent abuse, is not reviewable on
appeal. State v. Thomas, 291 N.C. 687, 692, 231 S.E.2d 585, 588
(1977). Abuse of discretion results where the court's ruling is
manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision. State v. Hennis,
323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). In determining whether to sanction the State, the trial court
considered the fact that Officer Johnson used his field notes to
prepare the formal report referred to during his testimony. The
field notes and the formal report were both prepared on the date of
defendant's arrest. Officer Johnson searched his patrol car for
the field notes after he was released from the witness stand, but
could not locate them. Presuming Officer Johnson's field notes
were discoverable under N.C. Gen. Stat. § 15A-903(a)(1), defendant
failed to show the trial court's decision not to sanction the State
is manifestly unsupported by reason or is so arbitrary that it
could not have been the result of a reasoned decision. Id. This
assignment of error is overruled.
IV. Rule 404(b) Evidence
Defendant argues the trial court abused its discretion in
allowing evidence of defendant's prior possession of a stolen motor
vehicle offense in violation of North Carolina Rules of Evidence
404(b) and 403. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005); N.C.
Gen. Stat. § 8C-1, Rule 403 (2005). We disagree.
The trial court allowed Detective Lyman Clark (Detective
Clark) to testify regarding defendant's December 2000 arrest for
possession of a stolen motor vehicle. Detective Clark testified
that he was called to a gas station on Martin Luther King Drive in
Winston-Salem pursuant to a complaint about people gathering in the
vicinity. Detective Clark saw a gold Infiniti drive into the gas
station. Detective Clark checked the Infiniti's tags and
discovered the vehicle was stolen. Detective Clark's back-uparrived and the officers approached defendant, who fled from the
scene. Defendant was apprehended and was in possession of the key
to the stolen vehicle. Defendant was convicted of possession of a
stolen motor vehicle.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) 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.
In State v. Coffey, our Supreme Court stated that Rule 404(b) is
a clear general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a
defendant, 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.
326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990), cert. denied, 421
S.E.2d 360 (1992). Relevant evidence is evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence. N.C. Gen. Stat. § 8C-1,
Rule 401 (2005).
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
State v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d 206, 209
(2005) (quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118,
In State v. Sokolowski, our Supreme Court held:
[Evidence of a prior crime] may be offered to
show defendant's identity as the perpetrator
when the modus operandi is similar enough to
make it likely that the same person committed
both crimes. A prior act or crime is
sufficiently similar to warrant admissibility
under Rule 404(b) if there are some unusual
facts present in both crimes or particularly
similar acts which would indicate that the
same person committed both crimes. It is not
necessary that the similarities between the
two situations rise to the level of the unique
351 N.C. 137, 150, 522 S.E.2d 65, 73 (1999) (internal citations and
quotation marks omitted).
Here, the evidence of defendants' prior possession of a stolen
motor vehicle offense is admissible to show defendant's identity as
the perpetrator and his modus operandi. Id. Notable similarities
and temporal proximity exist between the offense being appealed and
the prior incident. Stevenson, 169 N.C. App. at 798, 611 S.E.2d
at 208. The following similarities exist between the two offenses:
(1) both offenses involved a stolen automobile; (2) defendant had
access to the car key in both instances; (3) no damage was done to
either car; (4) in both instances, defendant fled when approached
by law enforcement; (5) there was no evidence that either car had
been broken into; and (6) defendant was apprehended with the stolen
vehicle at a gas station on both occasions. The trial court
properly held that these similarities go beyond merely genericdescriptions of a stolen motor vehicle and are relevant to the
issue of identity and modus operandi.
We must now determine whether the two offenses are too remote
in time. Id. at 800, 611 S.E.2d at 209. Approximately three years
and eleven months elapsed between the two offenses. The trial
court noted that defendant was in custody for a substantial period
of time between the two offenses, and was only free from custody
for approximately sixteen months during that time period.
In State v. Wilson, 106 N.C. App. 342, 349, 416 S.E.2d 603,
607 (1992), the prior offense occurred thirteen years prior to the
defendant's trial for the offense appealed from. The defendant
spent approximately eight years in prison between the two offenses.
Id. This Court allowed evidence of the defendant's prior offense
to be admitted under Rule 404(b). Id. Here, defendant's 2000
possession of a stolen motor vehicle offense is not too remote in
time to prejudice defendant. Stevenson, 169 N.C. App. at 800, 611
S.E.2d at 209.
The trial court did not abuse its discretion in admitting
evidence of defendant's prior possession of a stolen motor vehicle
offense under Rule 404(b), and determining this evidence was more
probative than prejudicial under Rule 403. This assignment of
error is overruled.
V. Limiting Instruction Regarding Defendant's Prior Offenses
Defendant argues the trial court erred in failing to give a
limiting instruction to the jury regarding defendant's prior
convictions. We disagree. Immediately following the State's cross-examination of
defendant where the State elicited the existence of defendant's
prior convictions, the trial court declined defense counsel's
request for a limiting instruction. The jury left the courtroom
after defendant's cross-examination. The trial court stated it had
not given a limiting instruction because it would have broken the
chain of questioning. The court indicated it would consider the
matter at the charge conference. The trial court gave the
following limiting instruction to the jury:
When evidence has been received that shows at
an earlier time that the Defendant was
convicted of criminal charges, you may
consider this evidence for one purpose only.
If, considering the nature of the crimes, you
believe that this bears upon the witness's
truthfulness, then you may consider it
together with all of the other facts and
circumstances bearing upon the Defendant's
truthfulness in deciding whether or not you
will believe or disbelieve his testimony at
this trial. It is not evidence of defendant's
guilt in this case. You may not convict him
on the present charge because of something
that he might have done in the past.
In State v. Williams, 341 N.C. 1, 11, 459 S.E.2d 208, 214
(1995), cert. denied, 516 U.S. 1128, 133 L. Ed. 2d 870 (1996), the
State introduced evidence of a witness' prior inconsistent
statement. The defendant argued on appeal that the trial court
erred in failing to give a limiting instruction regarding the
inconsistent statement at the time it was introduced, and by
instead giving the limiting instruction in the court's final charge
to the jury. Id. Our Supreme Court rejected this argument and held, Although
the correct procedure would have been for the court to give the
requested instruction at the time the request was made and in
conjunction with the admission of the statement, because the trial
court gave a correct limiting instruction in its charge, the error
was not prejudicial. Id. at 11, 459 S.E.2d at 215. As in
Williams, the trial court did not commit prejudicial error in
giving a limiting instruction in its charge to the jury rather than
at the time defendant's prior convictions were introduced. This
assignment of error is overruled.
VI. Jury Instruction on Flight
Defendant argues the trial court abused its discretion by
overruling defendant's objection to a jury instruction on flight.
The trial court instructed the jury on flight as follows:
Now the State contends and the Defendant
denies that the Defendant fled. Evidence of
flight may be considered by you together with
all of the other facts and circumstances in
this case in determining whether or not the
combined circumstances amount to an admission
or show a consciousness of guilt. However,
proof of this circumstance is not sufficient
in and of itself to establish the Defendant's
This Court has stated when it is appropriate for the trial court to
give an instruction on flight:
An instruction on flight is appropriate where
there is some evidence in the record
reasonably supporting the theory that
defendant fled after commission of the
crime[.] The relevant inquiry concerns
whether there is evidence that defendant left
the scene of the [crime] and took steps toavoid apprehension. If we find some evidence
in the record reasonably supporting the theory
that defendant fled after commission of the
crime charged, the instruction is properly
given. The fact that there may be other
reasonable explanations for defendant's
conduct does not render the instruction
State v. Ethridge, 168 N.C. App. 359, 362-63, 607 S.E.2d 325, 327-
28 (2005), aff'd per curiam, __ N.C. App. __, 625 S.E.2d 777
Here, evidence supports the instruction that defendant fled to
avoid apprehension. Id. Officer Johnson testified that he was
dressed in full uniform when he approached defendant. Officer
Johnson and another officer approached defendant as he walked out
of the gas station. Officer Johnson testified that defendant
turned around and immediately ran back inside of the business,
pushed the door shut so as not to allow us entrance. The officers
were able to open the door and defendant ran towards the right.
Defendant was taken into custody in the store's snack area.
In State v. Abraham, the evidence showed that both of the
defendants were seen by law enforcement walking away from the
murder scene shortly after the shooting occurred. 338 N.C. 315,
362, 451 S.E.2d 131, 156 (1994). As law enforcement approached
defendants, they detoured across a parking lot. Id. Upon the
officer's inquiry, defendants denied hearing any shooting and
continued to walk away. One defendant was arrested three weeks
later. Id. Our Supreme Court held this evidence was sufficient
to support an instruction on flight. Id. Here, Officer Johnson's testimony that defendant immediately
ran back into the store after he was approached by uniformed law
enforcement officers, pushed the door shut, and ran towards the
right after law enforcement officers entered the store is
sufficient to support a jury instruction on flight. Defendant has
failed to show any above abuse in the trial court's discretion.
This assignment of error is overruled.
The trial court did not abuse its discretion in denying
defendant's motion to strike Officer Johnson's testimony when it
was discovered that Officer Johnson's field notes were not provided
to defendant during discovery. The trial court did not abuse its
discretion in allowing evidence of defendant's prior possession of
a stolen motor vehicle conviction to be admitted under Rules 404(b)
The trial court committed no prejudicial error in denying
defendant's motion for a limiting instruction during cross-
examination of defendant, when the trial court gave the limiting
instruction during the jury charge. The trial court did not abuse
its discretion in overruling defendant's objection to a jury
instruction on flight. Defendant received a fair trial free from
prejudicial errors he assigned and argued.
No prejudicial error.
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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