404(b) Evidence and the Bare Fact of a Prior Conviction

As readers of this blog know, Rule 404(b) provides that although evidence of other crimes, wrongs, or acts is not admissible to prove propensity, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. N.C. R. Evid. 404(b). Even when offered for a proper purpose Rule 404(b) evidence must satisfy tests for similarity and timeliness. And of course, Rule 404(b) evidence is subject to Rule 403 balancing. As our courts have said, the ultimate test for admissibility of such evidence is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under Rule 403. State v. Boyd, 321 N.C. 574 (1988). While many cases hold that 404(b) prior bad acts evidence passes muster under Rule 403 balancing, that is not universally true. Perhaps the most significant cases in this regard are those holding that 404(b) evidence of the bare fact of a prior conviction does not survive the Rule 403 balancing test.

The seminal case on point is State v. Wilkerson, 356 N.C. 418 (2002), in which the court, per curiam, adopted Judge Wynn’s dissenting opinion below. Judge Wynn reasoned that “the bare fact of a defendant’s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose.” State v. Wilkerson, 148 N.C. App. 310 (2002) (Wynn, J., dissenting). Contrasting Rule 404(b) to Rule 609, which allows admission of the bare fact of conviction to impeach a defendant who has testified, Wynn explained that for 404(b) purposes “it is the facts and circumstances underlying such a conviction which hold probative value.” Wilkerson, 148 N.C. App. 310; see also State v. Mewborn, 178 N.C. App. 281 (2006) (distinguishing Wilkerson and holding that the bare fact of conviction was admissible under Rule 609 to impeach the defendant, who had testified). Wynn concluded: “[E]ven if a conviction, in and of itself, held a scintilla of probative value for Rule 404(b) purposes, inherent prejudicial effect of such a conviction would substantially outweigh its probativity, mandating its exclusion under Rule 403.” Wilkerson, 148 N.C. App. 310; see also State v. Badgett, 361 N.C. 234 (2007) (following Wilkerson); State v. McCoy, 174 N.C. App. 105 (2005) (same); State v. Scott, 167 N.C. App. 783 (2005) (same); State v. Hairston, 156 N.C. App. 202 (2003) (same). The rule applies even when the bare fact of conviction is offered after evidence has been presented establishing the facts and circumstances of the prior conviction. McCoy, 174 N.C. App. 105. However, Judge Wynn excepted from the rule “cases where our courts have recognized a categorical exception to the general rule (e.g., admitting prior sexual offenses in select sex offense cases, and admitting prior traffic-related convictions to prove malice in second-degree murder cases).” Wilkerson, 148 N.C. App. 310. Later cases have held that an admission of guilt in a transcript of plea is not a bare fact of conviction, State v. Brockett, 185 N.C. App. 18 (2007), and that the Wilkerson rule applies to prior bad acts of the victim. State v. Jacobs, __ N.C. App. __, 673 S.E.2d 724 (2009).

Thus defense lawyers should be alert to attempts by the State to introduce the bare fact of conviction under Rule 404(b). Should the State wish to introduce such evidence, it must fall within a “categorical exception” to the Wilkerson rule or be used for impeachment of a testifying witness under Rule 609.