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Rule 404(b): Did He Really Do It?

In this second post on Rule 404(b) evidence [editor’s note: the first post in this occasional series is here], I’ll address a point that sometimes gets overlooked in the admissibility analysis: In order for Rule 404(b) evidence to be relevant, there must be sufficient evidence that the defendant committed the other act in question. State v. Haskins, 104 N.C. App. 675, 679 (1991). Only once that preliminary threshold is satisfied, does the standard Rule 404(b) analysis of similarity and temporal proximity apply. Id. at 679-80 (“the trial court is required to make an initial determination pursuant to Rule 104(b) of whether there is sufficient evidence that the defendant in fact committed the extrinsic act”). At the outset I note that Rule 404(b) isn’t limited to evidence offered against the defendant. N.C.R.Evid. 404(b). However, since that’s how the issue most commonly arises, I’ll use the term “defendant” in this post when describing Rule 404(b) scenarios.

When the defendant has been convicted of the prior conduct, the requirement that the evidence sufficiently establishes that the defendant committed the act presents no special issues. Similarly, this requirement is easily satisfied when a witness credibly testifies that the defendant committed the other act. Haskins, 104 N.C. App. at 681 (the 404(b) evidence was of an attempted robbery; the victim positively identified the defendant as the perpetrator and testified at trial to that effect). However, if the defendant has been tried and acquitted of the conduct, evidence of the other act is inadmissible. State v. Ward, 199 N.C. App. 1, 7-20 (2009) (the trial court erred by admitting 404(b) evidence of earlier charges when they were dismissed for insufficient evidence; the probative value of the evidence depended on the defendant’s having committed those offenses; so ruling under a Rule 403 balancing). A dismissal by the prosecution, however, does not have the same preclusive effect. State v. Flaugher __ N.C. App. __, 713 S.E.2d 576, 583-84 (2011) (prosecutorial dismissal did not preclude admission of 404(b) evidence).

Where the incident did not result in a conviction against the defendant and where no witnesses credibly testify that the defendant committed the act in question, the relevancy inquiry is more complex. With respect to the quantum of evidence required to establish relevancy, it is sometimes said that the proponent must present “sufficient evidence” to establish that the defendant committed the act in question. State v. Peterson, 361 N.C. 587, 601 (2007) (in a case in which the defendant was tried for murdering his wife, the trial court properly admitted 404(b) evidence regarding another woman’s death where there was “sufficient circumstantial evidence that defendant was involved in [the other woman’s] death—such as defendant being the last known person to see [her] alive; defendant being with [her] the night of her death; and there being  no sign of forced entry and nothing missing from the residence, which indicated that [she] likely knew her assailant”); State v. Matthews, __ N.C. App. __, 720 S.E.2d 829, 834-36 (2012) (evidence of another break-in by the defendant was properly admitted where DNA evidence was “sufficient” to link the defendant to the crime); Haskins, 104 N.C. App. at 679-80 (citing Rule 104(b) and stating that the trial judge must determine that there is “sufficient evidence that the defendant in fact committed the extrinsic act”); see generally N.C.R.Evid. 104(b) (when relevancy is conditioned on the fulfillment of fact, there must be “evidence sufficient to support a finding of the fulfillment of the condition”). However, when articulating the required quantum of evidence, the courts sometimes use the terms “sufficient” and “substantial” interchangeably. See, e.g., Haskins, 104 N.C. App. at 679-80; Peterson, 361 N.C. at 601 (quoting State v. Stager, 329 N.C. 278, 303 (1991)) (“substantial evidence tending to support a reasonable finding by the jury that the defendant committed [the other crimes, wrongs, or acts]”).

Whatever the standard, the evidence offered to meet it need not be direct evidence; circumstantial evidence is sufficient. Peterson, 361 N.C. at 600 (quoting State v. Jeter, 326 N.C. 457, 459 (1990) (the Rule “includes no requisite that the evidence tending to prove defendant’s identity as the perpetrator of another crime be direct evidence”; holding that sufficient circumstantial evidence linked the defendant to the prior act); State v. Moore, 335 N.C. 567, 594 (1994) (same). However, when the evidence that the defendant committed the prior act is sufficient but weak, this will be relevant to the trial court’s Rule 403 balancing. Id.

Although cases can be found in which the 404(b) evidence was held to be inadmissible because there was insufficient evidence connecting the defendant to the act in question, State v. English, 95 N.C. App. 611, 614 (1989) (prejudicial error occurred when there was no “demonstrable nexus between the defendant and the act sought to be introduced against him”), other decisions are relatively permissive as to this requirement. See Peterson, 361 N.C. at 600-03; Adams, 727 S.E.2d 577 (in the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of a prior break-in at the victim’s Atlanta apartment for which the defendant was not investigated, charged, or convicted; the police could not locate any fingerprints or DNA evidence tying the defendant to the crime and no eyewitnesses placed the defendant at the scene).

If the evidence is sufficient to establish that the defendant committed the other act, the trial court must determine if the evidence is offered for a proper purpose. My next post will address that issue.