State v Rush, (06-41) 06/20/2006

    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 stolen vehicle.
    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 his car.

    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 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.

    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 403.”
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, 119 (1988)).
    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 and bizarre.

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.

    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.

    Defendant argues the trial court abused its discretion by overruling defendant's objection to a jury instruction on flight. We disagree.
    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 guilt.

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 improper.

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 (2006).
    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.