To 404(b) or Not to 404(b)

My ten-year-old daughter asked me a few weeks ago what O.J. Simpson had done. Like the rest of America, she heard news of his parole hearing. What she couldn’t figure out is why people were so interested in when he would be released from jail.  I told her about the hotel room and the sports memorabilia. And then I told her about the murders of Nicole Brown Simpson and Ron Goldman. (Don’t judge me: She has older brothers and she has watched so many episodes of Criminal Minds that the damage is already done.) I told her that a great many people thought O.J. had gotten away with murder; that’s why some thought he should stay in jail. With O.J., as with nearly everyone tried in the court of public opinion, allegations of other bad behavior shape the public’s perception of the person’s current predicament.

Fortunately, our actual courts operate in a more principled manner. When a prosecutor wants to offer evidence of misconduct by a criminal defendant that is not directly connected the crime with which the defendant is charged, the prosecutor must show that he is offering that evidence for some purpose other than to prove the person’s bad character. N.C. R. Evid. 404(b). The possible other purposes may include proving the person’s motive, opportunity to commit the crime, intentionality, preparation, planning, knowledge, identity, or absence of mistake, entrapment or accident – or any other relevant purpose. So long as the evidence of other crimes, wrongs or acts is relevant and is not offered to prove that the person has a propensity to do bad things, it may be admitted at trial.

Why have such a restriction? Some adult probably cautioned you in your youth to avoid behaving badly for fear of getting “a bad reputation.” That same adult may have told you to avoid associating with others with “bad reputations.” The assumption underlying the first piece of advice is that a bad reputation is not easily repaired: When the goodness of a person’s intentions or behavior is in doubt, a bad reputation leads to an unfavorable interpretation. The assumption underlying the second statement is that a person who has behaved badly on one or more previous occasions is likely to do so again. Plenty of folks can cite life experiences that support this latter belief. So why do courts keep out evidence of other bad acts offered to show that a defendant has a propensity to behave badly?

Rule 404(b) rejects this sort of propensity evidence not because it is unreliable but because of the risk (consistent with the first piece of advice above) that it can be misused. A jury hearing evidence that the defendant committed an unsavory act in addition to the crime with which he is charged may do one of two impermissible things: (1) allow the evidence of the other bad act to overly influence its assessment of the defendant’s guilt or innocence on the current charges; or (2) conclude that it is justifiable to condemn the defendant based on his prior behavior, regardless of his culpability on the current charges. See State v. Carpenter, 361 N.C. 382, 387–88 (2007).

When can evidence of other bad acts come in? Because evidence of other bad acts can be so convincing, prosecutors frequently seek to have it admitted. Indeed, the 1991 Advisory Committee Notes for Rule 404 of the Federal Rules of Evidence state that “Rule 404(b) has emerged as one of the most cited Rules in the Rules of Evidence.” Our criminal law faculty frequently field questions about 404(b) evidence, and it is the subject of many earlier blog posts (including entries here, here, here, here, here, here, and here).

A prosecutor who seeks to introduce other-bad-act evidence must clear three hurdles. First, she must offer sufficient evidence that the defendant committed the other bad act. (Jessie Smith wrote about that requirement here.) Second, she must establish a purpose for its admission – other than the defendant’s propensity to commit crime. Third, to be admissible, the defendant’s conduct on the other occasion must be similar to the alleged criminal activity. Other acts or crimes are sufficiently similar to the crime charged “if there are some unusual facts present in both” incidents. State v. Stager, 329 N.C. 278, 304 (1991). The similarities between the two situations do not, however, have to “rise to the level of the unique and bizarre.” State v. Green, 321 N.C. 594, 604 (1988). The other bad act also must be sufficiently recent to be probative. That said, in many circumstances, the remoteness of the act affects the weight of the evidence rather than its admissibility. See, e.g. State v. Hipps, 348 N.C. 377 (1998) (noting that remoteness in time may be significant when evidence of the prior crime is introduced to show that both crimes arose out of a common scheme or plan, but that remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; concluding that 17-year gap between earlier murder and current homicide went to weight not admissibility where earlier murder was offered to prove defendant’s knowledge and intent). Third, the prosecutor must show that the evidence satisfies Rule 403, meaning that its probative value is not substantially outweighed by the danger of unfair prejudice. The trial court must conduct a hearing outside the presence of the jury to determine whether the proffered evidence is admissible.

Legal standards are helpful . . . but how is Rule 404(b) applied?

Several recent opinions from the court of appeals illustrate how the standard is applied.

In the following cases, the appellate court determined that the trial court properly admitted evidence of prior bad acts by the defendant.

  • State v. Fink, 798 S.E.2d 537, 545 (N.C. Ct. App. 2017)

The defendant was charged with larceny by employee for taking money a customer paid to the defendant’s employer, an automotive repair company, for the purchase of car parts to repair her car. The State introduced evidence that the defendant had embezzled from a previous employer four years earlier.  In both cases, the defendant worked for the business from which he took funds, held a managerial position, took cash paid to the business, kept the cash for himself, and manipulated the accounting procedures in an effort to cover his tracks. The court of appeals held that this evidence was relevant to show defendant’s knowledge, plan, or scheme and intent to deprive his employer of its property and thus was properly admitted pursuant to Rule 404(b).

  • State v. Wilson-Angeles, 795 S.E.2d 657 (N.C. Ct. App. 2017)

The defendant was charged with attempted arson for setting a fire outside the door of her neighbor’s apartment by throwing a Molotov cocktail against the door. The alleged crime occurred while the defendant was impaired and shortly after she had a physical altercation with her neighbor. The State introduced evidence that the defendant committed another arson four years earlier in the same town at night in the doorway of a home that was occupied by someone with whom the defendant had an earlier dispute. The defendant was impaired by alcohol at the time of the earlier incident just as she was at the time of the crime. The court of appeals agreed with the trial court that the evidence was probative of the defendant’s intent and was properly admitted pursuant to Rule 404(b). Notwithstanding differences that the defendant identified between the two incidents, the court of appeals concluded the “unusual facts” of each were sufficiently similar to be admissible under Rule 404(b). The court further held that since the prior conduct was introduced to show the defendant’s intent to commit the more recent offense, the four-year gap between the incidents did affect the admissibility of the earlier arson.

  • State v. Gates, 789 S.E.2d 880, 886–87 (N.C. App. 2016)

The defendant was charged with a sex offense and breaking or entering for sexually assaulting a woman in her home in the early morning hours. The State introduced evidence that the defendant had committed a similar assault two months later. Both assaults were committed against a stranger; the defendant demanded that each victim perform oral sex; both happened in the early morning hours; and the assaults occurred within a three-mile radius. The defendant was not a suspect in the first assault until after he was investigated for the later one. The trial court allowed evidence about the subsequent assault to show how law enforcement officers identified the defendant as the first victim’s attacker. On appeal, the defendant argue that his attorney was ineffective for failing to object to the admission of this evidence. The court of appeals rejected the defendant’s argument, reasoning that the evidence was relevant to prove that the defendant was the first victim’s attacker as it explained why law enforcement officers suspected him and how they obtained his DNA, which matched DNA collected following the first victim’s assault.

  • State v. Godbey, 792 S.E.2d 820, 832–33 (N.C. App. 2016), review allowed, 795 S.E.2d 213 (N.C. 2017)

The defendant was charged with committing various sexual offenses against his step-daughter over a period of several years. One of the acts the victim alleged the defendant performed was humping her back until he ejaculated. The State introduced evidence that the defendant performed a similar sexual act with the victim’s mother. The court of appeals determined that the evidence was properly admitted pursuant to Rule 404(b) as it involved a unique sexual act and showed a common modus operandi. The appellate court also determined that the trial court did not abuse its discretion in determining that the evidence was admissible under Rule 403. The evidence was of great probative value, reasoned the court, and was not so sensitive as to inflame the jury.

In the following cases, in contrast, the court of appeals has determined that evidence of other bad acts by the defendant was improperly admitted.

  • State v. Williams, 801 S.E.2d 169 (N.C. App. 2017), temp. stay allowed, __ S.E.2d __ (N.C. 2017)

The defendant was charged with possession of a firearm by a felon after officers found an AK-47 rifle in the back seat of a vehicle he drove and a pistol next to the rear tire on the passenger’s side.  At trial, the State introduced evidence of an incident a year earlier in which officers found a different pistol in another vehicle occupied by the defendant. The court of appeals determined that the trial court erred in admitting the evidence as proof of the defendant’s knowledge. The only way such evidence proves knowledge, the court reasoned, is if one infers that because the defendant previously possessed a gun, he probably did so again. Therefore, the defendant must have known about the rifle in the back seat and the pistol by the rear tire. That kind of character inference is prohibited by Rule 404(b). The court of appeals further held that the trial court abused its discretion by admitting the evidence as proof of the defendant’s opportunity to possess firearms. In the appellate court’s view, the danger of unfair prejudice substantially outweighed any tendency the defendant’s gun possession a year earlier had to show opportunity to commit the current offense.

  • State v. Watts, 783 S.E.2d 266, 273–74 (N.C. App.), writ allowed, 783 S.E.2d 747 (N.C. 2016)

The defendant was charged with attempted first-degree rape and first-degree sexual offense with a child based on his alleged assault of an 11-year-old girl, with whom he had a grandfather-like relationship, during an evening when the girl opted to spend the night at his home. At trial, the State introduced evidence that eight years earlier the defendant had forced his way into the apartment of a 17-year-old girl, whom he knew because she had formerly lived with his sister, held a razor knife to her throat, and raped her. After noting that North Carolina courts had been liberal in admitting evidence of similar sex offenses in trials on sex crime charges, the court of appeals nevertheless held that the trial court erred in admitting this evidence. The appellate court quickly rejected the trial court’s reasoning that evidence of the earlier assault was relevant to show opportunity and then addressed its determination that the evidence was relevant to show that the defendant had a modus operandi. The court of appeals found the similarities between the assaults that the trial court had identified—defendant knew the minors, used force, and threatened to kill each girl and her family—insufficient to satisfy Rule 404(b). These similarities were not unusual to the crimes charged and, moreover, disguised significant differences in the assaults. The girls were six years apart in age, the circumstances in which they wound up alone with the defendant were different, the defendant had a closer relationship with the current victim than the earlier one, and the defendant used a razor in the earlier assault but no weapon in the latter one.

The take-away?  The more closely the prior act resembles the current crime, the more likely it is to be admissible under Rule 404(b), particularly if the details are unusual.

4 thoughts on “To 404(b) or Not to 404(b)”

  1. Does the evidence of the “other bad act” have to have been proven in open court, or can the prosecutor introduce any testimony from a witness of similar bad acts?

    • Any testimony is admissible; whether the defendant was convicted in the 404(b) incident is irrelevant to its admissibility. In fact, testimony of a witness is necessary. There’s caselaw stating that mere proof of a {even similar} conviction is not enough– witness testimony has to establish that the elements of 404(b) are met. This is true whether the 404(b) evidence happened before or after the crime charged in the instant trial. (Imagine a series of robberies with identical MOs. Evidence from the third incident would be admissible to prove a pattern with the first incident.)


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.