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Rule 404(b): Proper Purpose Other than Propensity

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Rule 404(b) is a rule of inclusion subject to one exception: the evidence must be excluded if its only probative value is to show that the defendant had the propensity or disposition to commit the charged offense. Evidence of other crimes, wrongs, or acts is admissible, however, for other purposes. In this post, my third on 404(b) evidence, I’ll explore the proper purposes of this evidence.

Motive. 404(b) evidence may be admitted to prove motive. N.C.R.Evid. 404(b). Thus, for example, 404(b) evidence showing that the defendant submitted false information in a loan application was admissible to show a financial motive for a murder. State v. Britt, __ N.C. App. __, 718 S.E.2d 725, 730-31 (2011).

Opportunity. 404(b) evidence is admissible to show the defendant’s opportunity to commit the crime charged. N.C.R.Evid. 404(b); see, e.g., State v. McAbee, 120 N.C. App. 674, 680-81 (1995) (in a homicide case evidence that the defendant was unemployed was admissible to show opportunity; being unemployed put him frequently at home with the child victim).

Intent. 404(b) evidence may be admitted to show intent. N.C.R.Evid. 404(b). Thus, for example, evidence that the defendant possessed incestuous pornography was admissible to show the defendant’s intent to engage in sexual acts with his own child. State v. Brown,__ N.C. App. __, 710 S.E.2d 265, 270 (2011).

Plan. 404(b) evidence may be admitted to show plan. N.C.R.Evid. 404(b). Thus, for example, 404(b) evidence that the defendant broke into a pharmacy but failed to procure narcotics was admissible to show a plan to obtain controlled substances through the drug store break-in at issue, State v. Woodard, 210 N.C. App. 725, 728-29 (2011).

Preparation. 404(b) evidence may be admitted to show preparation. N.C.R.Evid. 404(b); see, e.g., Williams, 318 N.C. at 631-32 (court properly admitted 404(b) evidence that the defendant took his daughter to an x-rated movie and told her to look at scenes depicting graphic sexual acts; the evidence showed preparation for rape and incest).

Knowledge. 404(b) evidence is admissible to show that the defendant acted knowingly, N.C.R.Evid. 404(b), such as when the defendant is charged with knowingly possessing a controlled substance. See, e.g., State v. Weldon, 314 N.C. 401, 404-407 (1985) (evidence that controlled substances were on the defendant’s premises on other occasions properly admitted to show her guilty knowledge that heroin was present at the time in question).

Identity. 404(b) evidence may be admitted to identify the defendant as the perpetrator of the crime at issue. N.C.R.Evid. 404(b). For example, evidence that the defendant committed another act very similar to the one charged may be probative of identity.

Not all 404(b) evidence offered to show identity will involve evidence of an act committed by the defendant similar to the one at issue. Evidence that the defendant used a weapon connected to the present offense during another incident also is probative of identity. See, e.g., State v. Garner, 331 N.C. 491, 509 (1992) (in a robbery and murder case, the trial court properly admitted 404(b) evidence that the defendant attempted to murder a taxicab driver three weeks after the incident in question where the same gun was used on both occasions).

Lack of Accident or Mistake. 404(b) evidence is admissible to show lack of accident or mistake. N.C.R.Evid. 404(b). Where a defendant claims accident, evidence of a prior act with a “concurrence of common features” to the charged offenses, tends to negate the claim of accident. State v. Lloyd, 354 N.C. 76, 90 (2001) (in a murder case in which the defendant claimed that a shooting was accidental, evidence of a prior assault by the defendant in which he shot the victim showed lack of accident).

Lack of Entrapment. 404(b) evidence is admissible to challenge the defense of entrapment. N.C.R.Evid. 404(b); see, e.g., State v. Goldman, 97 N.C. App. 589, 593-95 (1990) (in a drug case, 404(b) evidence of the defendant’s prior drug use and possession was properly admitted to show predisposition).

Other Permissible Purposes. Rule 404(b)’s listing of permissible purposes is not exclusive. Other proper purposes are listed below.

Common Plan or Scheme. Courts sometimes admit 404(b) evidence to show the defendant’s common plan or scheme to engage in the charged conduct. See, e.g, State v. Twitty, __ N.C. App. __, 710 S.E.2d 421, 424-25 (2011) (where the defendant was charged with obtaining property by false pretenses after he lied to church members to gain sympathy and collect funds, no abuse of discretion to admit 404(b) evidence that the defendant engaged in the same behavior at other churches to show common plan or scheme).

Chain of Events/Context Evidence. 404(b) evidence is admissible to establish the chain of circumstances or context of the charged crime. State v. White, 340 N.C. 264, 284 (1995). Such evidence is admissible if it “serves to enhance the natural development of the facts or is necessary to complete the story of the charged crime for the jury.” Id. (404(b) evidence admissible for this purpose). For example, in State v. Rollins, __ N.C. App. __, 725 S.E.2d 456, 460-61 (2012), a second-degree murder case stemming from a vehicle accident during a high speed chase following a shoplifting incident, details of the shoplifting incident were properly admitted to explain the reason for the defendant’s flight.

Malice. Evidence of a defendant’s prior motor vehicle-related convictions is admissible to show malice in a second-degree murder case based on a vehicular homicide. State v. Maready, 362 N.C. 614, 620 (2008).

If the evidence is offered for a proper purpose, the trial court then must assess similarity and temporal proximity. I’ll address those issues in my next posts.

3 comments on “Rule 404(b): Proper Purpose Other than Propensity

  1. Of course, the evidence would still need to be relevant under 401 and 402 and subject to the balancing test of 403, correct?

    Rule 403
    Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

  2. In answer to your question, absolutely. As I’ll discuss in future posts, even if offered for a proper purpose Rule 404(b) evidence must meet the tests of similarity and temporal proximity as well as Rule 403 balancing. Relevancy of course must always be established. For a comprehensive discussion of the topic, see my bulletin here: http://shopping.netsuite.com/s.nl/c.433425/it.I/id.545/.f

  3. […] evidence, and it is the subject of many earlier blog posts (including entries here, here, here, here, here, here, and […]

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