Case Summaries – N.C. Court of Appeals (March 21, 2023)

This post summarizes the published criminal opinion from the North Carolina Court of Appeals released on March 21, 2023. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Prior breaking and entering incident was sufficiently similar, held probative value for defendant’s intent, and was not too remote in time for admission under Rule 404(b); video surveillance tape was properly authenticated by investigating officer’s testimony.

State v. Jones, COA22-151, ___ N.C. App. ___ (March 21, 2023). In this New Hanover County case, defendant appealed his convictions for possession of burglary tools and attempted breaking and entering, arguing error in admitting evidence of a 2018 breaking and entering incident. The Court of Appeals found no error.

In November of 2020, defendant entered the backyard of a Wilmington home and attempted to open the door of a storage shed. The homeowner’s security camera alerted the homeowner, who then called 911. Defendant was later found by police in a neighbor’s yard with bolt cutters and a box cutter with a screwdriver head. During the trial, the prosecution introduced evidence of a 2018 incident where defendant pleaded guilty to breaking and entering a residential shed using a small knife. Despite defendant’s objections, the trial court admitted evidence of defendant’s guilty plea to the 2018 incident, as well as testimony from the investigating officer and surveillance video from the 2018 incident.

On appeal, defendant first argued error by the trial court in admitting the testimony and video evidence of the 2018 incident. The Court of Appeals disagreed, finding that the testimony and evidence were relevant and admissible under Rule 404(b) and not unfairly prejudicial under Rule 403. The court first examined defendant’s argument that the 2018 incident was not sufficiently similar to the 2020 incident to justify admitting the evidence. Using State v. Martin, 191 N.C. App. 462 (2008) as a guiding example, the court noted that here the similarities of breaking into a shed, after midnight, using similar tools, clearly met the Rule 404(b) requirement of similarity. Slip Op. at 12-13. The court also found the other two elements of Rule 404(b) were satisfied by the 2018 incident, as the prior incident had probative value for defendant’s intent to break into the shed, and the gap in time between the two incidents was not unusually long based on applicable precedent. After establishing admissibility under Rule 404(b), the court performed the Rule 403 analysis, finding no abuse of discretion in the trial court’s weighing of the danger of unfair prejudice verses probative value, and noting that the trial court carefully handled the process.

Defendant’s second argument on appeal was that the 2018 video surveillance evidence was not properly authenticated. The court again disagreed, noting that under Rule of Evidence 901, tapes from surveillance cameras can be authenticated as “the accurate product of an automated process” as long as “[e]vidence that the recording process is reliable and that the video introduced at trial is the same video that was produced by the recording process” is admitted to support the video. Id. at 21, quoting State v. Snead, 368 N.C. 811, 814 (2016). Here the court found that the investigating officer’s testimony in support of the video satisfied the requirements for authentication. Additionally, the court noted that even if the video was not properly authenticated, defendant could not show prejudice due to the large amount of evidence supporting his conviction.