A defendant who claims self-defense may offer evidence of the victim’s prior violent conduct, if known to the defendant, to demonstrate the reasonableness of the defendant’s fear of the victim. Under Rule 404(b), however, evidence of other crimes, wrongs, or acts, is generally constrained by the requirements of similarity and temporal proximity between the past and present conduct. In State v. Hague, No. 225A24 (N.C. May 22, 2026), the North Carolina Supreme Court recently said the requirements for similarity and temporal proximity are not applicable to Rule 404(b) evidence offered to show a defendant’s reasonable apprehension. This post considers the opinion in Hague.
Character Evidence in Self-Defense Cases
When a defendant claims self-defense, the victim’s character may be admissible for two reasons: (1) to show the victim was the aggressor, or (2) to show the defendant’s fear was reasonable. State v. Laws, 345 N.C. 585, 596 (1997); State v. Watson, 338 N.C. 168, 187 (1994). The former usage is specifically authorized by the North Carolina Rules of Evidence, the latter only implicitly.
Evidence Rule 404(a)(2) “permits evidence of the character of the victim tending to show that the victim was the first aggressor.” State v. Hager, 320 N.C. 77, 85 (1987). To prove the victim was the aggressor, the defendant may offer evidence of the victim’s violent character whether known to the defendant or not at the time of the confrontation. Watson, 338 N.C. at 188. This evidence may take the form of testimony as to reputation or in the form of an opinion. N.C. R. Evid. 405(a); State v. Shoemaker, 80 N.C. App. 95, 101 (1986). But character is not an element of self-defense, and the victim’s violent character may not be proved by evidence of specific instances of conduct unknown to the defendant at the time of the confrontation. State v. Bass, 371 N.C. 535, 544 (2018).
Alternatively, a defendant may offer evidence of the victim’s character to show the reasonableness of his belief in the need to use force. State v. Winfrey, 298 N.C. 260, 262 (1979). But Rule 404(a)(2) does not govern its admission. Watson, 338 N.C. at 187. The purpose of such evidence is not to prove the victim’s conduct, but to prove the defendant’s state of mind. Id. (quoting 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence, § 90). “The rationale of this rule is that a jury should, as far as is possible, be placed in defendant’s situation and possess the same knowledge of danger and the same necessity for action, in order to decide if defendant acted under reasonable apprehension of danger to his person or his life.” State v. Johnson, 270 N.C. 215, 219 (1967).
To prove the defendant’s state of mind, the defendant may offer evidence of the victim’s violent character if known by the defendant at the time of the confrontation. See Watson, 338 N.C. at 187. Indeed, the conduct becomes relevant only if the defendant knew about it. See State v. Shoemaker, 80 N.C. App. at 101. When evidence of a victim’s character is offered for this purpose, the evidence may take the form of specific instances of conduct. See State v. Jacobs, 363 N.C. 815, 824 (2010); cf. State v. Dewberry, 166 N.C. App. 177, 184 (2004) (specific instances relevant only if known).
Similarity and Temporal Proximity
The North Carolina Rules of Evidence were codified in 1984. That codification included Rule 404(b), which provides that evidence of other crimes, wrongs, or acts is not admissible to prove a person’s character in order to show action in conformity therewith (i.e., propensity), but it may be admissible for other purposes. N.C. R. Evid. 404(b). Evidence offered for purposes other than to show propensity includes evidence relevant to the defendant’s state of mind. State v. Jacobs, 363 N.C. 815, 823 (2010). The 1984 codification also included Rule 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or considerations of undue delay. N.C. R. Evid. 403.
The caselaw that developed around Rule 404(b), however, created additional restrictions. “The use of evidence as permitted under Rule 404(b),” the North Carolina Supreme Court said in 1989, “is guided by two constraints: similarity and temporal proximity.” State v. Artis, 325 N.C. 278, 299 (1989), death penalty vacated, 494 U.S. 1023 (1990). Again, “[e]vidence of other wrongs is admissible under Rule 404(b) depending on the similarity and temporal proximity of those wrongs to the crime charged.” State v. Hardy, 339 N.C. 207, 234 (1994). Under modern caselaw, a trial court’s ruling under Rule 404(b) – including its determination of similarity and temporal proximity – is reviewed de novo. State v. Beckelheimer, 366 N.C. 127, 133 (2012). Its ruling under Rule 403 is reviewed for abuse of discretion. Id.; see also State v. Carpenter, 361 N.C. 382, 388-89 (2007).
Still, other caselaw seems to limit the Rule 404(b) inquiry to whether the evidence was offered to show something other than propensity. See Jacobs, 363 N.C. at 824; State v. Gibson, 333 N.C. 29, 42 (1992) (same). To be sure, similarity and temporal proximity are relevant to whether the danger of unfair prejudice outweighs the probative value of the evidence. Kenneth S. Broun, et al., McCormick on Evidence 768 (6th ed. 2006). Indeed, early cases that articulated these requirements found support not in Rule 404(b) but in Rule 403. See State v. Boyd, 321 N.C. 574, 577 (1988); State v. Cotton, 318 N.C. 663, 665 (1987); State v. Scott, 318 N.C. 237, 248 (1986). Perhaps similarity and temporal proximity might be best described as Rule 403 concerns particularly appliable to Rule 404(b) evidence. See State v. Morgan, 359 N.C. 131, 158 (2004).
State v. Hague
Thomas Cass, forty-six, and his friends enjoyed hunting for doves in a cornfield in Iredell County. The defendant, seventy-one, lived nearby, where he operated a horse rescue farm. The defendant and Cass were acquainted with each another. The defendant knew Cass was a felon, that Cass would hunt with a shotgun, and that Cass occasionally carried a pistol. Hague, Slip Op. pp. 2-3, 5.
On September 7, 2020, Cass and his friends were hunting in the cornfield when the defendant approached. He spoke with some of the party, who told him they had permission to hunt there. He then walked toward Cass. Cass raised his hands and pushed the defendant, knocking him down. According to the defendant, Cass said, “I’m done,” and reached into his pocket. Believing Cass was reaching for a gun, the defendant pulled his own gun and shot Cass. Hague, Slip Op. p. 4-5.
Cass died as a result of the gunshot wound, and the defendant was indicted for murder. At trial, the defendant argued self-defense, claiming he reasonably believed Cass intended to shoot him first. The trial court excluded evidence that the defendant knew about Cass’s prior felony conviction. The defendant was convicted of murder and appealed. The Court of Appeals ordered a new trial. State v. Hague, 295 N.C. App. 380 (2024) (summarized here). Hague, Slip Op. p. 7.
Upon review, the Supreme Court addressed the admissibility of Cass’s prior convictions. Character evidence is admissible under Rule 404(b), it said, unless it is offered only to show propensity to commit similar actions. Evidence relevant to the defendant’s state of mind, it said, is not prohibited. Hague, Slip Op. p. 9-10. Here, for the jury fully to understand the defendant’s state of mind when he encountered Cass, “it was necessary for the jury to know” what he knew about Cass’s prior convictions. The trial court erred, therefore, by excluding the evidence under Rule 404(b). Id. at 12.
In a footnote, the Supreme Court limited the requirements of similarity and temporal proximity. “When a defendant’s prior acts are subject to Rule 404(b),” it said, we require “similarity and temporal proximity between the prior act and the charged crime.” Hague, Slip Op. p. 9 n.1. Here, however, the requirements are not applicable, it said, “because the inquiry is not about whether Mr. Cass’s previous crimes were similar to his actions on the day of the shooting,” but whether the defendant’s state of mind was reasonable in light of his knowledge of Cass’s prior conviction. Id.
In dissent, Justice Berger said the footnote shows why the majority’s analysis is wrong. Hague, Slip Op. pp. 24-25. Temporal proximity and substantial similarity, he said, are basic to any Rule 404(b) inquiry. Id. at 25. Justice Berger agreed with the majority that these requirements are not applicable here, “but not for the reasons they think.” Id. Under Justice Berger’s analysis, evidence of the victim’s character offered by the defendant is admissible only through Rule 404(a), limited by the methods sanctioned by Rule 405. Id. at 22-23. Rule 404(b), he said, is simply not applicable to evidence of the victim’s character offered to prove the defendant’s state of mind. Id. at 24-25.
Conclusion
The rules seek to limit the use of character evidence at trial not because it is irrelevant, but because its obvious relevance is potentially pernicious. Hence, for reasons of policy, “its admission is kept within strict limits.” 1 Kenneth S. Broun, et al. Brandis & Broun on North Carolina Evidence § 86, at 280 (8th ed. 2018). The requirement that the proponent of prior-bad-acts evidence demonstrate similarity and temporal proximity between past and present acts should be understood in this light.
But allowing a defendant who claims self-defense to offer evidence of a victim’s character in order to place the jury as far as possible in the defendant’s position satisfies the terms of Rule 404(b). Such evidence is not offered for the purpose of asking the jury to infer the victim’s future conduct from past behavior, but to assess the reasonableness of the defendant’s having done so. If this makes it evidence of propensity but one degree removed, still evidence of a victim’s character does not implicate the same concerns that warrant limitations on evidence of a defendant’s character.
At the end of the day, the majority and the dissent in Hague agree that the requirements of similarity and temporal proximity do not apply to evidence of the victim’s character offered by the defendant to show his state of mind, though they disagree as to the rationale. As noted above, earlier cases sensibly located these requirements not in Rule 404(b) but in Rule 403. True, recent cases have relocated them to Rule 404(b). But Hague illustrates that they may not be pertinent in every case.
