Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 11/27/2021
E.g., 11/27/2021

In this child sexual assault case, the trial court did not err by admitting Rule 404(b) evidence regarding a sexual assault perpetrated by the defendant on another child, Katy. The case being tried involved vaginal intercourse and other acts with a child victim. The 404(b) evidence involved in anal intercourse with Katy. The State offered Katy’s testimony to establish that the defendant had a common scheme or plan to commit assaults on young females. The trial court allowed the evidence for that purpose. On appeal, the court rejected the defendant’s argument that the acts were too dissimilar, noting: both the victim and Katy are the same sex; the defendant allegedly had forcible intercourse with both victims; the assaults took place in the early morning; and in both incidents, the defendant was a guest in the homes where the children were staying, he entered their bedrooms after midnight, and later bribed them for their silence. The court went on to hold that the evidence was admissible under Rule 403, rejecting the defendant’s argument that testimony of anal intercourse of a child by an adult improperly inflamed the jury.

 

Reversing State v. Beckelheimer, 211 N.C. App. 362 (Apr. 19, 2011), the court held that the trial judge did not err by admitting 404(b) evidence. The defendant was charged with sexual offense and indecent liberties. At the time of the alleged offense the defendant was 27. The victim was the defendant’s 11-year-old male cousin. The victim testified that after inviting him to the defendant’s bedroom to play video games, the defendant climbed on top of the victim and pretended to be asleep. He placed his hands in the victim’s pants, unzipped the victim’s pants, and performed oral sex on the victim while holding him down. The victim testified that on at least two prior occasions the defendant placed his hands on the victim’s genital area outside of his clothes while pretending to be asleep. At trial, witness Branson testified about sexual activity between himself and the defendant. Branson, then 24 years old, testified that when he was younger than 13 years old, the defendant, who was 4½ years older, performed various sexual acts on him. Branson and the defendant would play video games together and spend time in the defendant’s bedroom. Branson described a series of incidents during which the defendant first touched Branson’s genital area outside of his clothes while pretending to be asleep and then reached inside his pants to touch his genitals and performed oral sex on him. Branson also related an incident in which he performed oral sex on the defendant in an effort to stop the defendant from digital anal penetration. The court found that Branson’s testimony was properly admitted to show modus operandi. The conduct was sufficiently similar to the acts at issue given the victim’s ages, where they occurred, and how they were brought about. The court of appeals improperly focused on the differences between the acts rather than their similarities (among other things, the court of appeals viewed the acts with Branson as consensual and those with the victim as non-consensual and relied on the fact that the defendant was only 4½ years older than Branson but 16 years older than the victim). The court went on to conclude that given the similarities between the incidents, the remoteness in time was not so significant as to render the prior acts irrelevant and that the temporal proximity of the acts was a question of evidentiary weight. Finally, the court held that the trial court did not abuse its discretion by admitting the evidence under Rule 403.

In this Wake County case, the defendant was charged with incest and second-degree forcible rape for an offense committed against his niece. The defendant pled guilty to incest, but had a jury trial on the rape charge. At trial, the State offered testimony from a witness, Brittany Mack, who alleged that she had previously been forcibly raped by the defendant numerous times, including five days prior to the acts giving rise to the defendant’s current charge. The defendant filed a motion in limine seeking to exclude that testimony under Rule 404(b). The trial court heard arguments on that motion but reserved ruling on it until after the victim in the present case testified at trial. After the present victim testified that the defendant had intercourse with her while she was blacked out after drinking alcohol, the trial court ruled that the 404(b) evidence of the defendant’s sexual assault on Brittany Mack would be admissible for the limited purposes of showing the absence of mistake, lack of consent and intent. The trial court also conducted a Rule 403 balancing test and concluded that the proffered evidence was sufficiently similar and close in time to be more probative than prejudicial. After Mack testified, the trial court instructed the jury that her testimony could be considered solely for the purpose of showing an absence of mistake or that the defendant had the intent to commit the crime charged in this case. The defendant was convicted. On appeal, he argued that the trial court erred in allowing testimony regarding the prior alleged rapes because they were not relevant to any material element of the present charge of second-degree forcible rape, and that the trial court abused its discretion in weighing the testimony’s prejudicial effect.

(1) The Court of Appeals concluded that the trial court did not err when it deemed Mack’s testimony relevant under Rule 401. Though the type of force allegedly applied in the prior incident (Mack testified that the defendant “threw her on his bed” and forced her to have sex against her will) was different from the evidence of physical helplessness at issue in the present case, the Court of Appeals noted that physical helplessness still implies force and a lack of consent. Because force and consent are relevant issues in any second-degree forcible rape case, the Court held that the testimony about the prior alleged offense was relevant to prove that the defendant did not mistake the present victim’s actions and inactions as consent.

(2) The Court also concluded that the trial court did not abuse its discretion when weighing the probative value of Mack’s testimony against the danger of unfair prejudice. The trial judge heard testimony on voir dire, instructed the jury on the limited purpose of the testimony, and acknowledged that the prior alleged acts most recently occurred five days prior to the present offense. The Court of Appeals thus found no error and affirmed the defendant’s conviction.

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

 The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed: 

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects. 

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

In this child sexual assault case, the trial court did not err by admitting 404(b) evidence. In 2016, the victim reported to law enforcement that the defendant sexually assaulted her many times when she was a child, including a final incident on or about May 2004 when she was 12 years old. During the ensuing investigation, the victim recorded the defendant making incriminating statements. The defendant was indicted for first-degree sex offense with a child for the 2004 incident. At trial, the victim testified to the May 2004 incident, describing digital penetration. The victim also testified to an incident of digital penetration by the defendant that occurred a month or two prior to the May 2004 incident (“the bed incident”), and to another incident of digital penetration about two years earlier (the “Lick Mountain incident”). The victim also testified about watching pornography with the defendant on multiple occasions prior to the May 2004 incident during which the defendant would put her hand on his penis. Additionally the recorded conversation between the victim and the defendant was introduced at trial. In that recording the defendant asked the victim if she remembered “[t]he first hand [ride] you ever took” and admitted remembering watching pornography with the victim. The defendant was found guilty and he appealed.

          The court found that evidence of the bed incident and the Lick Mountain incident were properly admitted under Rule 404(b). All three incidents involved the same victim, the same type of penetration, and all occurred while the victim was under the defendant’s supervision. Thus the incidents were sufficiently similar to the one in question to show a common scheme or plan to take advantage of the victim by digitally penetrating her while she was under his control.

          The court rejected the defendant’s argument that the Lick Mountain incident was too remote in time to the May 2004 incident. Although that incident occurred 2 or 3 years prior, that period of time did not eliminate the probative value of the incident, particularly in light of its striking similarity to the May 2004 incident.

         The court also rejected the argument that the trial court abused its discretion by allowing evidence of the bed incident and Lick Mountain incidents over a Rule 403 objection.

         With respect to the portion of the recording regarding the “hand ride,” the defendant argued that this evidence was inadmissible because the date of the incident was not provided. The court concluded however that because of the similarity of this incident to the other events, the trial court did not err by admitting the statement on grounds of temporal proximity.

         With respect to the evidence regarding watching pornography together, the court held that even assuming this evidence was erroneously admitted, the defendant failed to establish prejudice in light of the overwhelming evidence of guilt.

In this child abuse case, the trial court did not abuse its discretion by admitting evidence regarding consensual sexual activity between the defendant and his wife. Here, after the child described to the wife a sexual act performed by the defendant, the wife signed a statement indicating that she and the defendant had engaged in the same act. The act in question was to turn her over on her stomach and “hump” and ejaculate on her back. The wife’s testimony was admissible to show common scheme or plan, pattern and/or common modus operandi and was sufficiently similar to the child’s allegation of sexual abuse. The court distinguished this case from one involving “a categorical or easily-defined sexual act” such as anal sex. Here, the case involved “a more unique sexual act.” 

In this felony indecent exposure case where the defendant exposed himself to a 14-year old boy, his mother and grandmother, the trial court did not err by admitting 404(b) evidence from two adult women who testified that the defendant exposed himself in public on other occasions. The court rejected the defendant’s argument that the other acts were insufficiently similar to the charged conduct and only “generic features of the charge of indecent exposure,” noting that the 404(b) testimony revealed that the defendant exposed himself to adult women, who were either alone or in pairs, in or in the vicinity of businesses near the courthouse in downtown Fayetteville, and each instance involved the defendant exposing his genitals with his hand on or under his penis. The court also rejected the defendant’s argument that because the current charge was elevated because the exposure occurred in the presence of a child under 16 and the prior incidents involved adult women, the were not sufficiently similar, noting that the defendant acknowledged in his brief that in this case he did in fact expose himself to an adult woman as well. The court also rejected the defendant’s argument that the evidence should have been excluded under the Rule 403 balancing test.

In this child sexual abuse case, the trial court properly admitted 404(b) evidence from several witnesses. As to two of the witnesses, the defendant argued that the incidents they described were too remote and insufficiently similar. The court concluded that although the sexual abuse of these witnesses occurred 10-20 years prior to trial, the lapses of time between the instances of sexual misconduct involving the witnesses and the victims can be explained by the defendant's incarceration and lack of access to a victim. Furthermore, there are several similarities between what happened to the witnesses and what happened to the victims: each victim was a minor female who was either the daughter or the niece of the defendant's spouse or live-in girlfriend; the abuse frequently occurred at the defendant's residence, at night, and while others slept nearby; and the defendant threatened each victim not to tell anyone. When considered as a whole, the testimony shows that the defendant engaged in a pattern of conduct of sexual abuse over a long period of time and the evidence meets Rule 404(b)’s requirements of similarity and temporal proximity. Testimony by a third witness was properly admitted under Rule 404(b) where it “involved substantially similar acts by defendant against the same victim and within the same time period.” The trial court also performed the proper Rule 403 balancing and gave a proper limiting instruction to the jury.

In a sexual exploitation of a minor case, the trial court did not commit plain error by admitting evidence that the defendant set up a webcam in a teenager’s room; videotaped her dancing in her pajamas; and inappropriately touched her while they rode four-wheelers. Although the court had an issue with the third piece of evidence, it concluded that any error did not rise to the level of plain error.

In a child sex case, the trial court did not err by allowing a child witness, A.L., to testify to sexual intercourse with the defendant. The court found the incidents sufficiently similar, noting among other things, that A.L. was assaulted in the same car as K.C. Although A.L. testified that the sex was consensual, she was fourteen years old at the time and thus could not legally consent to the sexual intercourse. The court found the seven-year gap between the incidents did not make the incident with A.L. too remote.

State v. Walston, 229 N.C. App. 141 (Aug. 30, 2013) rev’d on other grounds, 367 N.C. 721 (Dec 19 2014)

In a child sex case, the trial court did not err by admitting 404(b) evidence of the defendant’s prior sexual conduct. The court found the prior acts sufficiently similar and that the requirement of temporal proximity was met. 

In an involuntary manslaughter case where the victim, who was under 21, died from alcohol poisoning and the defendant was alleged to have aided and abetted the victim in the possession or consumption of alcohol, the trial court did not err by admitting 404(b) evidence that the defendant provided her home as a place for underage individuals, including the victim, to possess and consume alcohol; that the defendant offered the victim and other underage persons alcohol at parties; that the defendant purchased alcohol at a grocery store while accompanied by the victim; and the defendant was cited for aiding and abetting the victim and other underage persons to possess or consume alcohol one week before the victim’s death. The evidence was relevant to prove plan, knowledge, and absence of mistake or accident.

In a child sex case involving a female victim, the trial court did not err by admitting 404(b) evidence in the form of testimony from another female child (E.S.) who recounted the defendant’s sexual activity with her. The evidence was relevant to show plan and intent. Because the defendant’s conduct with E.S. took place within the same time period as the charged offenses and with a young girl of similar age, it tends to make more probable the existence of a plan or intent to engage in sexual activity with young girls. Additionally, the defendant’s plan to engage in sexual activity with young girls was relevant to the charges being tried. Finally, there was no abuse of discretion under the Rule 403 balancing test. On the issue of similarity, the court focused on the fact both E.S. and the victim were the same age and that the defendant was an adult; there was no discussion of the similarity of the actual acts.

In sexual assault case involving a child victim, no error occurred when the trial court admitted 404(b) evidence that the defendant engaged in sexual contact with another child to show common plan or scheme. The court rejected the defendant’s argument that the acts were not sufficiently similar, concluding that both incidents occurred while the victims were in the care of the defendant, their grandfather; the victims were around the same age when the conduct began; for both victims, the conduct occurred more than once; and with both victims, the defendant initiated the conduct by talking to them about whether they were old enough for him to touch their private parts. The court also determined that the acts met the temporal proximity requirement.

In a case in which the defendant was charged with sexual offense, indecent liberties and crime against nature against a ten-year-old female victim, no plain error occurred when the trial court admitted evidence of the defendant’s prior bad acts against two other teenaged females. The evidence was introduced to show common scheme or plan, identity, lack of mistake, motive and intent. The defendant’s acts with respect to the victim and the first female were similar: the defendant had a strong personal relationship with one of their parents, used the threat of parental disbelief and disapproval to coerce submission and silence, initiated sexual conduct after wrestling or roughhousing, digitally penetrated her vagina, and forced her to masturbate him. Only two years separated the incidents and both involved a similar escalation of sexual acts. As to the evidence of the prior bad acts with the second female — that the defendant kissed her when she was thirteen — the court held that admission of that testimony was not plain error. 

In a child sexual abuse case involving a female victim, the trial court did not err by allowing testimony from four individuals (three females and one male) that the defendant sexually abused them when they were children. The events occurred 14, 21, and 27 years prior to the abuse at issue. Citing State v. Jacob, 113 N.C. App. 605 (1994), and State v. Frazier, 121 N.C. App. 1 (1995), the court rejected the defendant’s argument that the evidence lacked sufficient temporal proximity to the events in question. The challenged testimony, showing common plan, established a strikingly similar pattern of sexually abusive behavior by the defendant over a period of 31 years in that: the defendant was married to each of the witnesses' mothers or aunt; the victims were prepubescent; the incidents occurred when the defendant's wife was at work and he was watching the children; and the abuse involved fondling, fellatio, or cunnilingus, mostly taking place in the defendant's wife's bed. Although there was a significant gap in time between the last abuse and the events in question, that gap was the result of defendant's not having access to children related to his wife and thus did not preclude admission under Rule 404(b). Finally, the court held that trial judge did not abuse his discretion by admitting this evidence under Rule 403.

State v. Brown, 365 N.C. 465 (Mar. 9, 2012)

In a per curiam opinion, the court affirmed the decision below in State v. Brown, 211 N.C. App. 427 (May 3, 2011) (in a case in which the defendant was charged with sexually assaulting his minor child, the court rejected the defendant’s argument that the trial court erred by admitting evidence that he possessed pornographic materials (“Family Letters,” a publication purporting to contain letters regarding individuals’ sexual exploits with family members); the defendant argued that the evidence was inadmissible under Rule 404(b) absent a showing that he used the materials during the crimes or showed them to the victim at or near the time of the crimes; the court concluded that the evidence was properly admitted to show motive and intent; as to motive, it stated: “evidence of a defendant’s incestuous pornography collection sheds light on that defendant’s desire to engage in an incestuous relationship, and that desire serves as evidence of that defendant’s motive to commit the underlying act – engaging in sexual intercourse with the victim/defendant’s child – constituting the offense charged”; as to intent, it concluded that the defendant’s desire to engage in incestuous sexual relations may reasonably be inferred from his possession of the incestuous pornography, a fact relevant to the attempted rape charge; the court also found the evidence relevant to show a purpose of arousing or gratifying sexual desire in connection with an indecent liberties charge; finally, the court concluded that the evidence passed the Rule 403 balancing test, noting that it was admitted with a limiting instruction).

In a child sex case, the trial court did not err by admitting adult pornography found in the defendant’s home to establish motive or intent where the defendant showed the victim both child and adult pornography. Furthermore the trial court did not abuse its discretion by admitting this evidence under Rule 403. The trial court limited the number of magazines that were admitted and gave an appropriate limiting instruction. 

(1) In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court did not err by admitting, under Rule 404(b), evidence that the defendant engaged in hazing techniques against his wrestlers. The evidence involved testimony from wrestlers that the defendant choked-out and gave extreme wedgies to his wrestlers, and engaged in a variety of hazing activity, including instructing upperclassmen to apply muscle cream to younger wrestlers’ genitals and buttocks. The evidence was properly admitted to show that the defendant engaged in “grooming behavior” to prepare his victims for sexual activity. The court so concluded even though the hazing techniques were not overtly sexual or pornographic, noting: “when a defendant is charged with a sex crime, 404(b) evidence … does not necessarily need to be limited to other instances of sexual misconduct.” It concluded: “the hazing testimony tended to show that Defendant exerted great physical and psychological power over his students, singled out smaller and younger wrestlers for particularly harsh treatment, and subjected them to degrading and often quasi-sexual situations. Whether sexual in nature or not, and regardless of whether some wrestlers allegedly were not victimized to the same extent as the complainants, the hazing testimony had probative value beyond the question of whether Defendant had a propensity for aberrant behavior (quotations and citations omitted).” (2) The trial court did not abuse its discretion by admitting the hazing testimony under Rule 403, given that the evidence was “highly probative” of the defendant’s intent, plan, or scheme to carry out the charged offenses. The court noted however “that the State eventually could have run afoul of Rule 403 had it continued to spend more time at trial on the hazing testimony or had it elicited a similar amount of 404(b) testimony on ancillary, prejudicial matters that had little or no probative value regarding the Defendant’s guilt” (citing State v. Hembree, 367 N.C. 2 (2015) (new trial where in part because the trial court “allow[ed] the admission of an excessive amount” of 404(b) evidence regarding “a victim for whose murder the accused was not currently being tried”)). However, the court concluded that did not occur here.

In a counterfeit controlled substance case where the defendant was alleged to have sold tramadol hydrochloride, representing it to be Vicodin, evidence that he also possessed Epsom salt in a baggie was properly admitted under Rule 404(b). The salt bore a sufficient similarity to crack cocaine in appearance and packaging that it caused an officer to do a field test to determine if it was cocaine. Under these circumstances, evidence that the defendant possessed the salt was probative of intent, plan, scheme, and modus operandi.

State v. Locklear, 363 N.C. 438 (Aug. 28, 2009)

In this capital murder case, the trial court did not err in admitting evidence that the defendant committed another murder 32 months earlier. Evidence of the prior murder was admitted to show knowledge, plan, opportunity, modus operandi, and motive. The court found the two crimes sufficiently similar and rejected the defendant’s argument that because the trial court declined to join the offenses for trial, they lacked the necessary similarity. The court noted that remoteness is less significant when the prior bad act is used to show intent, motive, knowledge, or lack of accident and that it generally goes to weight not admissibility.

The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed. 

The trial court did not err in admitting evidence of a prior similar crime to prove the defendant’s identity under Rules of Evidence 401, 403, and 404. Evidence was presented at trial showing that the defendant committed crimes similar to those for which he was being tried (although he was not formally charged with these other bad acts). The defendant argued there was insufficient evidence that he committed the alleged acts and that the evidence violated the ban on propensity evidence in Rule 404(b). Rejecting this contention, the court found that the modus operandi of the prior crime was substantially similar to the current case and was admissible to show the defendant’s identity as the perpetrator. Specifically, the incidents shared the following characteristics:

(1) [T]he perpetrator wore a Jason-style white hockey mask with holes in it, similar to the one seized from defendant in Colorado; (2) the targets were all suspected drug dealers or living with suspected drug dealers; (3) the attacks all took place at night in the victims’ homes; (4) defendant had an accomplice; and (5) the incidents had both temporal and geographic proximity, most of them taking place within a month or two of each other, and within the same city.

Additionally, forensics from the incident recounted by the 404(b) witness matched the gun found on the defendant in Colorado. “All of this evidence supports a reasoned conclusion defendant was the perpetrator in this incident, and the common modus operandi helps establish his identity in the crimes he was charged with.” This was relevant evidence, and the court did not abuse its discretion in determining the evidence was more probative than prejudicial.

(1) In this non-capital first-degree murder case where the defendant was convicted of murdering a former girlfriend Sellars, the trial court did not err by admitting 404(b) testimony from the defendant’s former girlfriend Crisp and former wife Lewis about assaults that the defendant committed on them. The evidence was admitted to show motive, intent, modus operandi, and identity. The requirement of similarity was satisfied. Among other things, the trial court’s findings of fact identified “location similarities between the incidents.” The defendant’s assaults of Crisp and Lewis occurred in isolated areas, and Sellars’ remains were found on one of the roads in an isolated area where the defendant assaulted Crisp. With respect to remoteness, the defendant’s assaults on Crisp occurred from 1990-1993; the assaults on Lewis occurred from 1996-1999; and Sellars’ death occurred in 2012, 13 years after the last assault. Subtracting 4 years that the defendant spent in prison, leaves a 9 year gap. The court concluded that assaults on multiple victims over time with relatively short gaps in between show a pattern of behavior, and that the evidence satisfied the temporal proximity requirement of the Rule 404(b) analysis. The court went on to find that the trial court did not abuse its discretion by finding that the 404 evidence satisfied Rule 403.

(2) The trial court did not err by instructing the jury that it could use of evidence of the defendant’s prior assaults on the victim to show identity. Multiple witnesses testified regarding the defendant’s abuse of the victim prior to her murder and the defendant’s prior assaults on her arose in the context of a relationship in which the defendant used violence to control her behavior. This evidence was properly admitted to show identity.

In this case where the defendant was convicted of stalking victim Lorrie, with whom the defendant had a dating relationship, the trial court did not commit plain error by introducing 404(b) evidence from Holly, the defendant’s ex-girlfriend. The defendant argued that the trial court erred in failing to exclude Holly’s testimony that the defendant had assaulted her in the past, that she was afraid of the defendant, and that the defendant told Holly “he would never be arrested again” and “he would not be taken alive.” The court disagreed, finding that Holly’s testimony established that Lorrie was in reasonable fear of the defendant. Holly testified to texting Lorrie about the assault and warning Lorrie to be careful, and that Holly herself was afraid of the defendant. This testimony demonstrates both that Lorrie had a legitimate basis for her fear of the defendant and that her fear was reasonable as required by the stalking statute. Similarly, the court noted, the defendant’s statements to Holly¾that “he would never be arrested again” and “he would not be taken alive”¾were made in reference to the assault and further illustrate a course of conduct that would cause a reasonable person to fear for her safety.

In this case where the defendant was convicted of second-degree murder for killing her boyfriend, the trial court did not err by introducing 404(b) evidence pertaining to an incident between the defendant and another boyfriend, Walker, which occurred 14 months before the events in question. The court found strong similarities between the incidents, noting that both involved the defendant and her current boyfriend; the escalation of an argument that led to the use of force; the defendant’s further escalation of the argument; and the defendant’s deliberate decision to obtain a knife from the kitchen. Given these similarities, the court found that the Walker evidence was probative of the defendant’s motive, intent, and plan. Next, the court found that the prior incident was not too remote.

State v. Foust, 220 N.C. App. 63 (Apr. 17, 2012)

In a rape case, the trial court did not err by admitting evidence that the defendant assaulted a male visiting the victim’s home and called the victim a whore and slut upon arriving at her house and finding a male visitor. Rejecting the defendant’s argument that these incidents bore no similarity to the rape at issue, the court noted that the victim was present for both incidents and that her state of mind was relevant to why she did not immediately report the rape.

In a case in which the defendant was found guilty of felonious child abuse inflicting serious bodily injury and first-degree murder, the trial court did not abuse its discretion by admitting 404(b) evidence showing that the defendant engaged in continual and systematic abuse of her other children to show a common plan, scheme, system or design to inflict cruel suffering for the purpose of punishment, persuasion, and sadistic pleasure; motive; malice; intent; and lack of accident.

In a murder case, evidence of an assault committed by the defendant two days before the murder was admissible to show identity when ballistics evidence showed that the same weapon was used in both the murder and the assault. The court rejected the defendant’s argument that the probative value of the prior assault was diminished because of the dissimilarity of the incidents.

In this Mecklenburg County case, the defendant was convicted of first-degree murder and possession of a firearm by a felon for shooting and killing Oren Reed. Reed’s aunt found his body in a pool of blood inside the backdoor of his home around 5 p.m. on November 21, 2013. The doorframe for the backdoor was splintered, and glass and bullet shells were on the ground. The State introduced evidence at trial that the previous day someone had kicked in the side door to Chris Townsend’s house, breaking the door frame, and had stolen a revolver and bullets. Other evidence showed that the stolen gun, found in defendant’s possession when he was arrested, was used to fire 22 of the 23 spent cartridges at Reed’s residence. An expert testified that two of the bullets recovered from Reed’s body shared similar class and characteristics as bullets fired from this gun. 

(1) On appeal, the defendant argued that the trial court committed plain error by admitting evidence of the break-in at the Townsend residence. The Court of Appeals rejected that argument, reasoning that the evidence was relevant because it tended to show how the defendant gained possession of the murder weapon. The evidence also was admissible under N.C. R. Evid. 404(b) as it showed the natural development of the facts and completed the story of the murder and because there were substantial similarities between the two incidents.

(2) The defendant also argued on appeal that the trial court committed plain error by instructing the jury on the doctrine of recent possession, which allows a jury to infer that the possessor of recently stolen property stole the property. The defendant argued that this inference was not relevant to whether he broke into Reed’s house and killed him and that it likely caused the jury to convict the defendant of felony-murder based on the break-in to Townsend’s home. The Court of Appeals determined that, even presuming the trial court erred in instructing the jury that it could consider the doctrine of recent possession in deciding whether the defendant was guilty of first-degree murder, the defendant failed to show the instruction had a probable impact on the verdict. The Court reasoned that even if the recent possession instruction could have caused the jury to improperly convict the defendant of felony-murder, the instruction did not have a probable impact on first-degree murder verdict because the jury also found the defendant guilty based on malice, premeditation and deliberation.

In this felony breaking and entering, larceny, and felon in possession case, evidence that the defendant committed a similar breaking and entering was properly admitted under Rule 404(b).  In addition, certain statements made by the victim of the similar breaking and entering were admissible as a present sense impression, and there was sufficient evidence of the felon in possession offense.  Regarding the 404(b) issue, the court determined that evidence of the other similar breaking and entering being committed by a person wearing a red and black hoody was properly admitted as circumstantially establishing that the defendant, who was wearing a red and black hoody when arrested on the same day as the break-ins, was the perpetrator in both incidents.  An officer’s testimony about the statements made by the victim of the other break-in were admissible under the present sense impression exception to the hearsay rule because the statements were made within minutes of the victim perceiving the break-in and described or explained the event.  Finally, the evidence of the felon in possession offense was sufficient to withstand a motion to dismiss as it showed that three guns were stolen during the break-in and that the defendant was the perpetrator.

State v. Campbell, 243 N.C. App. 563 (Oct. 20, 2015) rev’d on other grounds, 369 N.C. 599 (Jun 9 2017)

In a case involving a breaking or entering of a church, counsel was not ineffective by failing to challenge the admissibility of evidence that the defendant broke into a home on the night in question. The court noted that because the issue pertains to the admission of evidence no further factual development was required and it could be addressed on appeal. It went on to hold that the evidence was admissible under Rule 404(b) to show that the defendant’s intent in entering the church was to commit a larceny therein and to contradict his testimony that he entered the church for sanctuary. The evidence also was admissible under Rule 403. As to the defendant’s argument that counsel should have requested a limiting instruction that the jury could not consider the evidence to show his character and propensity, the court agreed that a limiting instruction would have mitigated any potential unfair prejudice. But it held: “any resulting unfair prejudice did not substantially outweigh the evidence’s probative value, given the temporal proximity of the breaking or entering offenses and the evidence’s tendency to show that defendant’s intent in entering the church was to commit a larceny therein.” Because the defendant failed to show that admission of the evidence was error he could not prevail on his ineffective assistance claim.

In the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of an argument the defendant had with the victim and of a prior break-in at the victim’s Atlanta apartment for which the defendant was not investigated, charged, or convicted. The victim testified that in June 2008, while at her apartment in Raleigh, the defendant became angry and threw furniture and books, shoved a television, and broke a lamp. A few months later, the victim’s Atlanta apartment was burglarized and ransacked. Her couch was shredded, a lamp was broken, the floor was covered in an oily substance, her personal belongings were strewn about, and her laptop and car title were stolen. Police could not locate any fingerprints or DNA evidence tying the defendant to the crime; no eyewitnesses placed the defendant at the scene. In January 2009, the crime at issue occurred when the victim’s apartment in Raleigh was burglarized and ransacked. Her clothes and other personal belongings were strewn about and covered in liquid, her furniture was cut, her electronics destroyed, the floor was covered in liquid, her pictures were slashed, and a fire was lit in the fireplace, in which pictures of the defendant and the victim, books, shoes, picture frames, and photo albums had been burned. The only stolen item was a set of jewelry given to her by the defendant. As with the earlier break-in, the police could not locate any forensic evidence or eyewitnesses tying the defendant to the crime. The court found it clear from the record that the evidence established “a significant connection between defendant and the three incidents.” The court went on to find that the prior bad acts were properly admitted to show common plan or scheme, identity, and motive.

Evidence of a break-in by the defendant, occurring after the break-in in question, was properly admitted under Rule 404(b). DNA evidence sufficiently linked the defendant to the break-in and the evidence was probative of  intent, identity, modus operandi, and common scheme or plan. 

In a case involving charges arising out of a drug store break-in in which controlled substances were stolen, the trial court did not abuse its discretion by admitting 404(b) testimony from an accomplice that a few days before the break-in at issue, the same perpetrators broke into a different pharmacy but did not obtain any narcotics. The incidents were sufficiently similar, occurred only a few days apart, and involved the same accomplices.

In a murder and armed robbery case, the trial court did not commit plain error by admitting 404(b) evidence that the defendant broke into and stole from two houses near the time of the victim’s death. The evidence was relevant to illustrate the defendant’s motive for stealing from the victim—to support an addiction to prescription pain killers.

In this larceny by employee case, the trial court did not err by admitting 404(b) evidence. The charges arose out of a 2014 incident in which the defendant, a manager of an auto shop, kept for himself cash paid by a customer for auto repairs. At trial, an officer testified that in 2010 he investigated the defendant for embezzlement. The defendant, who was working as a restaurant manager, admitted stealing from the restaurant by voiding out cash transactions and keeping the cash for himself. The court found that evidence showing that the defendant embezzled from a previous employer four years prior was clearly relevant to show intent, plan, or absence of mistake or accident. In both cases, the defendant worked for the business, held a managerial position, took cash paid and intended for the business, kept the cash for himself, and manipulated accounting procedures to cover his tracks. The prior incident was sufficiently similar to the current one and was not too remote in time. Additionally, the trial court gave a proper limiting instruction.

In a case where the defendant was charged with embezzling from a school, trial court did not err by admitting evidence that the defendant misappropriated funds from a church to show absence of mistake, opportunity, motive, intent, and/or common plan or scheme. The record supported the trial court’s conclusion of similarity and temporal proximity.

In a residential robbery case, the trial court did not err by admitting 404(b) evidence of the defendant’s robbery at a Holiday Inn two days after the incident in question. As to similarity, the court noted that both incidents were armed robberies. Also, the perpetrators in both wore black hoodies and dark fabric covering part of their faces, immediately demanded money upon entering the buildings, used a black semi-automatic handgun by “pushing” it to the heads of the victims, restrained the victims in a similar manner, and moved the victims from place to place, searching for money.

In a robbery case involving a purse snatching, a purse-snatching by the defendant 6 weeks prior was properly admitted under Rule 404(b). The court found that the incidents were sufficiently in that they both occurred in Wal-Mart parking lots and involved a purse-snatching from a female victim who was alone. Also, the requirement of temporal proximity was satisfied. 

In a second-degree murder case stemming from a vehicle accident during a high speed chase following a shoplifting incident, details of the shoplifting incident were properly admitted under Rule 404(b). Evidence is admissible under Rule 404(b) when it is part of the chain of circumstances leading to the event at issue or when necessary to provide a complete picture for the jury. Here, the shoplifting incident explained the manner of the defendant’s flight.

(1) In a case in which the defendant faced homicide charges in connection with the death of an officer in a vehicular accident while that officer responded to a call regarding the defendant’s flight from another officer’s lawful stop of the defendant’s vehicle, the trial court did not err by admitting 404(b) evidence that the defendant had been involved in a robbery. In the robbery the defendant and an accomplice fled from the police and the accomplice was shot and killed by police officers. This was admitted to show implied malice in that it showed the defendant’s knowledge that flight from the police was dangerous and could result in death. (2) The trial court did not err by admitting evidence that the defendant and two other occupants of his vehicle stole several pounds of marijuana just before the defendant fled from the officer. The evidence showed the defendant’s motive to flee and his “intent or implied malice.” 

In an armed robbery case, evidence of the defendant’s involvement in another robbery was properly admitted under Rule 404(b). In both instances, the victims were robbed of their credit or debit cards by one or more handgun-wielding individuals with African accents, which were then used by the defendant to purchase gas at the same gas station within a very short period of time. The evidence was admissible to prove a common plan or scheme and identity. The court further held that the trial court did not abuse its discretion by failing to exclude the evidence under Rule 403.

State v. Maready, 362 N.C. 614 (Dec. 12, 2008)

The defendant was convicted of second-degree murder involving impaired driving. No plain error occurred when the trial judge admitted, under Rule 404(b), the defendant’s prior traffic-related convictions that were more than sixteen years old. The court rejected the implication that it previously had adopted a bright line rule that it was plain error to admit traffic-related convictions that occurred more than sixteen years before the date of a second-degree vehicular murder. Of the defendant’s six previous DWI convictions, four occurred in the sixteen years before the events at issue, including one within six months of the event at issue. Those convictions “constitute part of a clear and consistent pattern of criminality highly probative of his mental state.” Although temporal proximity is relevant to the assessments of probative value under 404(b), remoteness generally affects the weight of the evidence, not its admissibility, especially when the prior conduct tends to show state of mind as opposed to common scheme or plan.

In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the trial court did not abuse its discretion by admitting evidence of the defendant’s past driving offenses. The State’s evidence showed that on 23 November 2016, the defendant was stopped for an expired plate and was issued a citation for driving with a suspended license. At the time of the incident in question, the defendant’s license had been suspended since 22 May 2014 for failure to appear for a 2013 infraction of failure to reduce speed. Since the defendant’s driver’s license was originally issued in September 1997, he had multiple driving convictions including: failure to stop for siren or red light, illegal passing, speeding 80 in a 50, and reckless driving in March 1998; speeding 64 in a 55 in September 2000; speeding 64 in a 55 in October 2000; speeding 70 in a 50 in August 2003; driving while license revoked and speeding 54 in a 45 in January 2005; speeding 54 in a 45 in December 2006; failure to reduce speed resulting in accident and injury in February 2007; a South Carolina conviction for speeding 34 in a 25 in March 2011; speeding 44 in a 35 in January 2012; speeding 84 in a 65 in May 2013; and failure to reduce speed in February 2017 (the conviction corresponding to the 2013 charge on which the defendant failed to appear). Six of these prior convictions resulted in suspension of the defendant’s license. On appeal the defendant argued that the trial court erred by admitting his prior driving record without sufficient evidence establishing temporal proximity and factual similarity. The court disagreed. It found that there was no question that his prior driving record was admissible to show malice. It further held that the trial court’s finding of similarity was supported by the fact that the vast majority of prior charges involve the same types of conduct that the defendant was alleged to have committed in the present case—namely speeding, illegal passing, and driving while license revoked. Although the State did not present evidence of the specific circumstances surrounding the prior convictions, the similarity was evident from the nature of the charges.

            The trial court’s finding of temporal proximity was supported by the spread of convictions over the entirety of the defendant’s record, from the year his license was issued up until the year of the accident in question, showing a consistent pattern of conduct including speeding, illegal passing, and driving with a revoked license. The gaps in time between charges, never greater than three or four years, were not significant. Moreover, many of the gaps between charges occurred when the defendant’s license was suspended and he could not legally drive. The trial court properly determined that the time gaps in this pattern of conduct were less significant in light of the likely causes for the gaps, the defendant’s inability to legally drive. Additionally, the trial court properly gave a limiting instruction

            The court further rejected the defendant’s argument that the evidence should have been excluded because of the 10 year time limit under evidence Rule 609. That rule however only applies to evidence used to impeach a witness’s credibility, which is not at issue here.

In a second-degree murder case arising after the defendant drove while impaired and hit and killed two bicyclists, the trial court did not err by admitting Rule 404(b) evidence. Specifically, Thelma Shumaker, a woman defendant dated, testified regarding an incident where the defendant drove while impaired on the same road two months before the collision in question. Shumaker also testified that the defendant habitually drank alcohol, drank alcohol while driving 20 times, and drove while impaired one or two additional times. The trial court found that Shumaker’s testimony regarding the specific incident was admissible to show malice. With regard to Shumaker’s other testimony, the court held that even if the evidence was inadmissible, the defendant could not establish the requisite prejudice, given the other evidence. 

(1) The trial court did not err by admitting evidence that the defendant received two citations for driving without a license, including one only three days before the crash at issue. The fact that the defendant drove after having been repeatedly informed that driving without a license was unlawful was relevant to malice. The court rejected the defendant’s argument that admission of the “bare fact” of the citations violated the Wilkerson rule (bare fact of a conviction may not be admitted under Rule 404(b)). The court noted that Wilkerson recognized that conviction for a traffic-related offense may "show the malice necessary to support a second-degree murder conviction," because it was "the underlying evidence that showed the necessary malice, not the fact that a trial court convicted the defendant." Thus, the court concluded, Wilkerson does not apply. (3) The trial court did not err by admitting an officer’s testimony of the defendant’s conduct after the crash. The evidence suggested that the defendant was continuing to try to escape regardless of the collision and in callous disregard for the condition of his passengers and as such supports a finding of malice.

In this larceny by employee case, the trial court did not err by admitting 404(b) evidence. The charges arose out of a 2014 incident in which the defendant, a manager of an auto shop, kept for himself cash paid by a customer for auto repairs. At trial, an officer testified that in 2010 he investigated the defendant for embezzlement. The defendant, who was working as a restaurant manager, admitted stealing from the restaurant by voiding out cash transactions and keeping the cash for himself. The court found that evidence showing that the defendant embezzled from a previous employer four years prior was clearly relevant to show intent, plan, or absence of mistake or accident. In both cases, the defendant worked for the business, held a managerial position, took cash paid and intended for the business, kept the cash for himself, and manipulated accounting procedures to cover his tracks. The prior incident was sufficiently similar to the current one and was not too remote in time. Additionally, the trial court gave a proper limiting instruction.

In this obtaining property by false pretenses case, the trial court did not err by admitting Rule 404(b) evidence. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or not completing the job. At trial, three other witnesses testified to similar incidents. This evidence was “properly admitted under Rule 404(b) because it demonstrated that defendant specifically targeted his victims pursuant to his plan and intent to deceive, and with knowledge and absence of mistake as to his actions.”

In a case involving convictions for uttering a forged instrument and attempting to obtain property by false pretenses in connection with a fraudulent check, the trial court did not err by admitting evidence of a second fraudulent check. The second check was virtually identical to the first one, except that it was drawn on a different bank. The fact that the defendant possessed the second check undermined the defendant’s explanation for how he came into possession of the first check and proved intent to commit the charged crimes. Also, the evidence passed the Rule 403 balancing test.

In a case in which the defendant was charged with murdering his wife, the trial court did not abuse its discretion by admitting 404(b) evidence pertaining to the defendant’s submission of false information in a loan application. Evidence of the defendant’s financial hardship was relevant to show a financial motive for the killing. 

In a case in which the defendant was charged with obtaining property by false pretenses by lying to church members about his situation, the trial court did not abuse its discretion by admitting 404(b) evidence of the defendant’s similar conduct with regard to other churches, occurring after the incident in question. The evidence was properly admitting to show common scheme or plan and was admissible even though it occurred after the incident in question.

In a case in which the defendant was convicted of perpetrating a hoax on law enforcement officers by use of a false bomb, the trial court did not err by admitting evidence of the defendant’s prior acts against his estranged wife. The defendant’s wife had a domestic violence protective order against him. When she saw the defendant at her house, she called 911. After arresting the defendant, officers found weapons on his person and the device and other weapons in his vehicle. At trial his wife testified to her prior interactions with the defendant, including those where he threatened her. The evidence of the prior incidents showed the defendant's intent to perpetrate a hoax by use of a false bomb in that they showed his ongoing objective of scaring his wife with suggestions that he would physically harm her and others around her. Also, the prior acts were part of the chain of events leading up to the crime and thus completed the story of the crime for the jury. The court rejected the defendant’s argument that the prior acts were not sufficiently similar to the act charged on grounds that similarity was not pertinent to the 404(b) purpose for which the evidence was admitted. The court also concluded that the trial court did not abuse its discretion by admitting the evidence under Rule 403.

In a second-degree rape case, the trial court properly admitted 404(b) evidence of the defendant’s prior sexual conduct with the victim to show common scheme. The conduct leading to the charges occurred in 1985 when the victim was sixteen years old. After ingesting alcohol and other substances, the victim awoke to find the defendant, her uncle, having sex with her. At trial the victim testified that in 1977, the defendant touched her breasts several times; in 1978, he touched her breasts, put her hand on his penis, and made her rub his penis up and down; and in 1980 he twice masturbated in front of her. The court found the prior acts sufficient similar to the rape at issue, noting that they show “a progression from inappropriate touching in 1977 to sexual intercourse in 1985.” Also, the court noted, all of the incidents occurred where the defendant was living at the time. The incidents were not too remote. Although there was a five year gap between the last act and the rape, the defendant did not have access to the victim for three years. The court also found that the evidence was admissible under Rule 403.

In the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of an argument the defendant had with the victim and of a prior break-in at the victim’s Atlanta apartment for which the defendant was not investigated, charged, or convicted. The victim testified that in June 2008, while at her apartment in Raleigh, the defendant became angry and threw furniture and books, shoved a television, and broke a lamp. A few months later, the victim’s Atlanta apartment was burglarized and ransacked. Her couch was shredded, a lamp was broken, the floor was covered in an oily substance, her personal belongings were strewn about, and her laptop and car title were stolen. Police could not locate any fingerprints or DNA evidence tying the defendant to the crime; no eyewitnesses placed the defendant at the scene. In January 2009, the crime at issue occurred when the victim’s apartment in Raleigh was burglarized and ransacked. Her clothes and other personal belongings were strewn about and covered in liquid, her furniture was cut, her electronics destroyed, the floor was covered in liquid, her pictures were slashed, and a fire was lit in the fireplace, in which pictures of the defendant and the victim, books, shoes, picture frames, and photo albums had been burned. The only stolen item was a set of jewelry given to her by the defendant. As with the earlier break-in, the police could not locate any forensic evidence or eyewitnesses tying the defendant to the crime. The court found it clear from the record that the evidence established “a significant connection between defendant and the three incidents.” The court went on to find that the prior bad acts were properly admitted to show common plan or scheme, identity, and motive.

State v. Foust, 220 N.C. App. 63 (Apr. 17, 2012)

In a rape case, the trial court did not err by admitting evidence that the defendant assaulted a male visiting the victim’s home and called the victim a whore and slut upon arriving at her house and finding a male visitor. Rejecting the defendant’s argument that these incidents bore no similarity to the rape at issue, the court noted that the victim was present for both incidents and that her state of mind was relevant to why she did not immediately report the rape.

In a maiming case in which the defendant was accused of attacking the victim with a pickaxe and almost severing his finger, no plain error occurred when the trial judge admitted 404(b) evidence that the defendant had previously attacked the victim with a fork and stabbed his finger. The 404(b) evidence was admitted to show absence of accident or mistake. Although the defendant argued that she never intended to purposefully strike the victim’s finger with the pickaxe, the defendant knew from the fork incident that she could end up stabbing the victim’s hand or fingers if she swung at him with a weapon and he attempted to defend himself. The evidence was thus relevant to whether the defendant intended to disable the victim or whether she accidentally struck his finger and did not intend to maim it. The court also rejected the defendant’s argument that the 404(b) evidence was inadmissible because the State had previously dismissed charges arising from the fork incident, distinguishing cases in which the defendants had been tried and acquitted of the 404(b) conduct.

The trial court properly admitted evidence of the defendant’s prior assault on a murder victim when the evidence showed that the defendant wanted to prevent the victim from testifying against him in the assault trial; the prior bad act showed motive, malice, hatred, ill-will and intent. There was no abuse of discretion in the 403 balancing with respect to this highly probative evidence.

In a trial for assault on a law enforcement officer and resisting and obstructing, the trial court properly admitted evidence relating to the defendant’s earlier domestic disturbance arrest. The same officer involved in the present offenses handled the earlier arrest, and at the time had told the defendant’s mother to call him if there were additional problems. It was the defendant’s mother’s call that brought the officers to the residence on the date in question. Thus, the fact of the earlier arrest helped to provide a complete picture of the events for the jury. The court also held that the trial court did not abuse its discretion in admitting the defendant’s statement to the police after his arrest while he was being transported to the jail. The court found that the defendant’s argumentative statements showed both his intent to assault or resist officers as well as absence of mistake.

The trial court did not commit plain error by admitting certain testimony that may have suggested that the defendant engaged in witness intimidation. Specifically a detective testified that during a photo lineup a victim appeared to not want to identify the suspect. The detective added that the victim “has had personal dealings with a brother of his in the past that had been killed because he had snitched and didn’t want to become part of that as well.” Even if this testimony suggested that the defendant intimidated the victim, it was properly admitted as relevant to explain why the victim did not identify the shooter and did not testify at trial.

The trial court did not commit plain error by admitting certain testimony that may have suggested that the defendant engaged in witness intimidation. Specifically a detective testified that during a photo lineup a victim appeared to not want to identify the suspect. The detective added that the victim “has had personal dealings with a brother of his in the past that had been killed because he had snitched and didn’t want to become part of that as well.” Even if this testimony suggested that the defendant intimidated the victim, it was properly admitted as relevant to explain why the victim did not identify the shooter and did not testify at trial.

In a case where the defendant was convicted of misdemeanor child abuse and contributing to the delinquency of a minor, the court reversed the opinion below, ___ N.C. App. ___, 789 S.E.2d 703 (2016), for the reasons stated in the dissent. The case involved the drowning of a child under the defendant’s supervision in 2013. A majority of the Court of Appeals panel determined that evidence of a prior incident involving the drowning of a child under the defendant’s supervision in 2010 was properly admitted under Rule 404(b). The majority went on to conclude, however, that the State used the 404(b) evidence “far beyond the bounds allowed by the trial court's order” based on extensive references to the evidence, and that this constituted reversible error. The dissenting judge agreed that the 404(b) evidence was properly admitted but disagreed that the State’s use of that evidence warranted reversal. According to the dissent, the defendant’s argument regarding the State’s use of the 404(b) evidence should be treated as a challenge to jury argument in the absence of an objection, a claim assessed under the gross impropriety standard, which the defendant could not meet.

In this possession of a firearm by a felon case, the court reversed in part the decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 169 (2017), for the reasons stated in the dissent. A divided panel of the court of appeals had held that the trial court erred by admitting 404(b) evidence. The current charges were filed after officers found an AK-47 rifle in the back seat of a vehicle and a Highpoint .380 pistol underneath the vehicle, next to the rear tire on the passenger side. At trial, the State offered, and the trial court admitted, evidence of a prior incident in which officers found a Glock 22 pistol in a different vehicle occupied by the defendant. The evidence was admitted to show the defendant’s knowledge and opportunity to commit the crime charged. The defendant offered evidence tending to show that he had no knowledge of the rifle or pistol recovered from the vehicle. The court of appeals held that the trial court erred by admitting the evidence as circumstantial proof of the defendant’s knowledge. It reasoned, in part, that “[a]bsent an immediate character inference, the fact that defendant, one year prior, was found to be in possession of a different firearm, in a different car, at a different location, during a different type of investigation, does not tend to establish that he was aware of the rifle and pistol in this case.” The court of appeals found that the relevance of this evidence was based on an improper character inference. It further held that the trial court abused its discretion by admitting the evidence as circumstantial proof of the defendant’s opportunity to commit the crime charged. The court of appeals noted, in part, that the State offered no explanation at trial or on appeal of the connection between the prior incident, opportunity, and possession. The court of appeals went on to hold that the trial court’s error in admitting the evidence for no proper purpose was prejudicial and warranted a new trial. The dissenting judge believed that because the defendant did not properly preserve his objection, the issue should be reviewed under the plain error standard, and that no plain error occurred. 

In this first-degree murder case, (1) the trial court did not err by admitting under Rule 404(b) evidence of the disappearance of a person the defendant had been previously convicted of murdering, (2) the defendant was not prejudiced by alleged improper remarks by the prosecution during closing argument, and (3) the trial court did not err by denying the defendant’s motion to dismiss the murder charge for insufficient evidence of premeditation and deliberation.

(1) At the defendant’s murder trial for killing victim Tucker, the state introduced evidence concerning law enforcement investigation into the disappearance of victim Rippy, a woman the defendant had been previously convicted of murdering but whose body had never been found.  Tucker’s body was discovered during a search of property associated with the defendant by investigators who were looking for Rippy.  The trial court admitted evidence concerning the investigation of Rippy’s disappearance under Rule 404(b) to show the course of the investigation of Tucker’s death, identity, motive, and modus operandi.  On appeal, the defendant argued under the standard of plain error that the evidence concerning Rippy was not sufficiently similar and was so voluminous as to be more prejudicial than probative under Rule 403.  The court first explained various ways in which the challenged evidence of Rippy’s disappearance was introduced for a proper purpose under Rule 404(b), including that it helped provide a full picture of the course of the investigation of Tucker’s death, related to the credibility of witnesses, and cast certain physical evidence in a probative light.  The evidence concerning Rippy also was sufficiently similar to that concerning Tucker as both victims lived around Wilmington; were of the same sex; disappeared within nine months of each other; had legal, financial, and substance abuse problems; relied on the defendant for transportation; had relationships with the defendant; and were subjects of his sexual attention.  Distinguishing State v. Hembree, 368 N.C. 2 (2015), the court further found that the trial court did not abuse its discretion in admitting the evidence under Rule 403, pointing to the trial court’s deliberate weighing of its probative and prejudicial qualities and appropriate limiting instructions to the jury.

(2) The defendant made several arguments pertaining to alleged trial court errors during the prosecution’s closing arguments. (a) Certain statements about the presence of Tucker’s blood in the defendant’s car were a reasonable inference from evidence introduced at trial, though no DNA samples were recoverable from sections of carpeting that had been shown through testing to contain human blood. (b) Statements that Rippy was deceased did not violate the trial court’s limitation on the state’s use of the defendant’s conviction for her murder and were not made for an improper purpose. (c) The trial court cured improper statements suggesting that defendant bore the burden of proving his own innocence and was responsible for the inclusion of second-degree murder as a lesser-included offense on the verdict sheet, and did not err by denying the defendant’s motion for a mistrial based upon those statements. (d) The trial court did not err by failing to intervene ex mero motu when the prosecution referred to “evil” during closing while displaying a poster that showed the Black defendant alongside the white victims. (e) The alleged improper remarks did not amount to cumulative prejudice.

(3) Viewing the evidence in the light most favorable to the State, there was substantial evidence of premeditation and deliberation to support the conviction of first-degree murder.  The nature of Tucker’s injuries from blunt force trauma suggested that the manner of her killing was brutal and thus indicative of premeditation and deliberation.  Premeditation and deliberation also was suggested by evidence of postmortem concealment and undignified treatment of Tucker’s body, as well as the defendant’s efforts to destroy evidence of the murder.

In this possession of a firearm by a felon case, the trial court did not err when it allowed an officer to testify that during an unrelated incident, the officer saw the defendant exiting a house that the officer was surveilling and to testify that the defendant had a reputation for causing problems in the area. This testimony was offered for a proper purpose: to establish the officer’s familiarity with the defendant’s appearance so that he could identify him as the person depicted in surveillance footage. Additionally, the trial court did not abuse its discretion in finding that the probative value of this testimony outweighed its prejudicial impact under the Rule 403 balancing test. However, the court went on to hold that the officer’s testimony that the surveillance operation in question was in response to “a drug complaint” did not add to the reliability of the officer’s ability to identify the defendant. But because no objection was made to this testimony at trial plain error review applied, and any error that occurred with respect to this testimony did not meet that high threshold.

In this arson case, the trial court properly admitted 404(b) evidence to show the defendant’s intent. The evidence in question pertained to another arson which was sufficiently similar to the incident in question. Both arsons occurred in the same town during nighttime hours and involved the same building location. In both instances the defendant was intoxicated, knew the buildings were occupied, and was angry about a perceived harm perpetrated against her by an occupant of the residence. Although the other incident occurred approximately four years earlier, there was a sufficient temporal proximity to the conduct at issue.

State v. Jacobs, 363 N.C. 815 (Mar. 12, 2010)

In a murder and attempted armed robbery trial, the trial court erred when it excluded the defendant’s proposed testimony that he knew of certain violent acts by the victim and that the victim had spent time in prison. This evidence was relevant to the defendant’s claim of self-defense to the murder charge and to his contention that he did not form the requisite intent for attempted armed robbery because “there is a greater disincentive to rob someone who has been to prison or committed violent acts.” The evidence was admissible under Rule 404(b) because it related to the defendant’s state of mind. The court also held that certified copies of the victim’s convictions were admissible under Rule 404(b) because they served the proper purpose of corroborating the defendant’s testimony that the victim was a violent person who had been incarcerated. State v. Wilkerson, 148 N.C. App. 310, rev’d per curiam, 356 N.C. 418 (2002) (bare fact of the defendant’s conviction, even if offered for a proper Rule 404(b) purpose, must be excluded under Rule 403), did not require exclusion of the certified copies of the victim’s convictions. Unlike evidence of the defendant’s conviction, evidence of certified copies of the victim’s convictions does not encourage the jury to acquit or convict on an improper basis.

The trial court did not abuse its discretion by admitting, to show identification, intent, and modus operandi, a bad act that occurred 2 ½ years after the crime at issue. Bad acts that occur subsequent to the offense being tried are admissible under Rule 404(b). When the evidence is admitted to show intent and modus operandi, remoteness becomes less important.

Evidence of that the defendant drove with a revoked license after his arrest for several crimes, including driving while license revoked, which lead to the prosecution at issue, was admissible under Rule 404(b) to show that he knowingly drove with a revoked license.

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