Rule 404 and Evidence of Prior Incarceration

In a recent decision, the Court of Appeals granted a new trial on the ground that improper and prejudicial character evidence regarding a prior incarceration of the defendant was admitted at trial. The case presents a reminder about the distinction between North Carolina Rules of Evidence 404(a) and 404(b) and sheds light on the admissibility of evidence of a defendant’s incarceration.

Facts. In State v. Rios, ___ N.C. App. ___ (Dec. 20, 2016), law enforcement obtained a warrant to search the residence of the defendant, where he lived with the homeowner and another roommate. The search revealed nearly sixty pounds of marijuana and a host of other evidence of drug distribution activity. The police found about seven pounds of marijuana in the defendant’s bedroom, most of which was in a large box. Fifty more pounds were found in the garage. A latent fingerprint found on drug-packaging material in the homeowner’s room was matched to the defendant.

The defendant’s girlfriend, Ms. Hodges, testified on his behalf at trial, offering several reasons why the drugs did not belong to him. She testified that the two had met in high school around 2004 and began dating in 2012 while she was in graduate school in Chapel Hill. She had not seen the defendant use or possess marijuana but had seen the roommates do so. Among other things, she testified that other people used the defendant’s bedroom at the defendant’s residence in Greensboro when he visited her on weekends in Chapel Hill and that between his work, attendance at Guilford Technical Community College, and visits to Chapel Hill, he spent a substantial amount of time away from his house. She also asserted that the door to the defendant’s bedroom did not lock, she had never seen the large box, and the defendant could not lift such a box due to a recent surgery (in her words, after the surgery “he couldn’t even pull up his pants”). The defendant did not testify.

On cross-examination, the State established that after high school and before the two began dating, there was a lengthy period in which they had not been in touch. Over objection, the State further elicited from her that during a three and a half to four year period, the defendant was incarcerated. Other than alluding to the length of the defendant’s sentence, none of the facts and circumstances of the incarceration or the underlying conviction were brought out. The jury convicted the defendant of two counts of trafficking in marijuana and related charges.

Arguments on Appeal. On appeal, the defendant argued that the evidence of his time in prison was inadmissible character, or propensity, evidence under Rule of Evidence 404(b)—in other words, that his character, as shown by his incarceration, was elicited to show that he committed the drug offenses in this case. The evidence about the “bare fact” of incarceration, he argued, was analogous to the situation in State v. Wilkerson, 356 N.C. 418 (2002), rev’g per curiam for reasons stated in dissenting opinion, 148 N.C. App. 310 (2002). Wilkerson held that “bare” evidence of a conviction is not admissible under Rule 404(b). As practitioners well know, Rule 404(b) prohibits evidence of prior bad acts, including crimes, to show a person’s propensity to commit the current offense, but the evidence is often admissible for other purposes, such as to show a person’s motive or plan. Wilkerson held that the bare fact of conviction “would rarely, if ever, be probative or any legitimate Rule 404(b) purpose.” 148 N.C. App. at 320. Rather, it is the facts and circumstances of a prior bad act or crime that may be probative of a proper purpose under Rule 404(b). Stand-alone evidence of the defendant’s prior incarceration, the argument went, was just as improper and prejudicial as the stand-alone conviction evidence in Wilkerson.

The State pointed to State v. Goins, 232 N.C. App. 451 (2014), which held that evidence of incarceration, by itself, is simply not evidence of other crimes or wrongs and thus does not violate Rule 404(b). The Goins court noted, “Defendant offers no case holding that discussing merely the fact of recent incarceration amounts to other crimes, wrongs, or acts. Furthermore, our research reveals no case holding that recent incarceration, in and of itself, amounts to evidence of other crimes, wrongs, or acts.” Id. at 459. Further, the State argued, because Hodges presented evidence of the good character of the defendant, the prosecution was free to present the evidence of his incarceration as rebuttal character evidence under Rule 404(a).

Court’s Opinion. The court in Rios recognized the impact of Goins, but all three judges agreed that the admission of evidence of incarceration was improper (they split 2-1 on whether it was prejudicial). The court reconciled Goins and Rios by finding that while Rule 404(b) didn’t apply, the evidence of incarceration still amounted to improper propensity evidence under Rule 404(a). “To the extent that Rule 404(b) contemplates the facts and circumstances underlying a conviction, then, admittedly, it would not include the bare fact of a prior incarceration. Even so, like evidence of a conviction, evidence of incarceration is still character evidence under 404(a). As such, it ’is not admissible for the purpose of proving that [a person] acted in conformity therewith on a particular occasion’ unless it fits within an enumerated exception.” Slip Op. at 10 (emphasis in original) (internal citations omitted). The Court found that no exceptions applied.

Rule 404(a) allows the accused in a criminal case to present evidence of a pertinent trait of his character, such as being law abiding. If the defendant does so, the State then may offer rebuttal evidence, including evidence of specific acts. The court found that the testimony of the defendant’s girlfriend, Hodges, did not put his character in issue and therefore the exception for rebuttal evidence did not permit the State to raise his incarceration under Rule 404(a). According to the Court, Hodges’ testimony was offered to establish that the drugs were not his and likely belonged to his roommates, but it did not amount to evidence of good character. The State was free to point out the gap in time when Hodges and the defendant were not in contact and argue against her knowledge of the defendant’s activities, but the inquiry into his exact whereabouts to reveal his incarceration crossed the line into improper propensity evidence. Having found that Hodges did not open the door, the court concluded that this evidence was offered to show only that the defendant acted in conformity with his bad character in violation of Rule 404(a). “It is readily apparent that the State elicited the testimony to show the defendant’s propensity to commit the crime for which he was on trial.” Slip Op. at 9.

The State also claimed the evidence was otherwise relevant, as the nature of the relationship between the defendant and Hodges had been raised by the defense and exploring it had probative value. The court acknowledged that this could be. See generally State v. Lofton, 214 N.C. App. 562 (2011) (unpublished) (not plain error to admit evidence of incarceration under Rules 401 and 403 where “contextually necessary” in circumstances of case); State v. Dewalt, 237 N.C. App. 400 (2014) (unpublished) (evidence about defendant’s status in prison in prosecution of inmate burning his cell essential to circumstances of the crime and not a violation under Rules 401, 403, or 404(b)). However, given that the witness acknowledged the period of time when they were not in touch, the inquiry into her knowledge of his exact location had only “minimal” probative value. The court found that any probative value was outweighed by the risk of prejudice to the defendant and the trial court abused its discretion by failing to exclude this evidence under Rule 403. Slip Op. at 11.

Takeaway. What is not necessarily evidence of other crimes, wrongs, or bad acts under Rule 404(b) may still be inadmissible evidence of character pursuant to Rule 404(a). Like incarceration, evidence of other traits or characteristics, such as gang-affiliation, tendency for violence, drug abuse, and others will often be objectionable as propensity evidence. Rios is a reminder of the fundamental limitation on the use of such character evidence. In any given case, the defendant may open the door to rebuttal character evidence by the State under Rule 404(a), the State may have a proper purpose under Rule 404(b), or the evidence may be essential to the claim or context of the case. Then, such evidence may be admissible, subject to relevance and prejudice limits. The exceptions to the general prohibition can be broad, particularly under Rule 404(b). See State v. Coffey, 326 N.C. 268 (1990) (finding Rule 404(b) to be a rule of inclusion). However, where none of the exceptions apply, evidence of the character of the defendant (including prior incarceration) to show that he or she committed the crime is improper and properly excluded.