Over the weekend, the judge presiding over Bill Cosby’s sexual assault trial declared a mistrial after the jury was unable to reach a unanimous verdict. I hadn’t followed the case very closely and my knee-jerk reaction was, “wait, fifty women have accused this guy of sexual assault and he didn’t get convicted?” As I thought more about it, I began to wonder how many accusers — other than Andrea Constand, the alleged victim in the case — were allowed to testify against Cosby. It turns out that it was only one. Continue reading
Tag Archives: 404(b)
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. Continue reading →
About a year ago, I wrote about State v. Hembree, 368 N.C. 2 (2015), a case in which the state supreme court reversed a murder conviction based on the State’s excessive use of Rule 404(b) evidence. This month, a divided court of appeals decided a case in the same vein. The case is State v. Reed. Continue reading →
As I noted in my last post on Rule 404(b) evidence, even when the evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my final post on Rule 404(b) evidence, I’ll explore the requirement of temporal proximity.
Temporal proximity is part of the analysis because, as a general rule, the probative value of the other crime, wrong, or act diminishes as the event becomes more remote. See, e.g., State v. Barnett, __ N.C. App. __, 734 S.E.2d 130, 134 (2012). There are no bright line rules regarding temporal proximity for purposes of Rule 404(b) admissibility. State v. Maready, 362 N.C. 614, 623-24 (2008). Compare, e.g., State v. Jones, 322 N.C. 585, 587–91 (1988) (in a child sex case, a seven-year gap between the last act on the witness and the first act on the victim made the event too remote to show common plan or scheme), with State v. Carter, 338 N.C. 569, 588–89 (1994) (in a murder case, an eight-year gap between a prior assault and the homicide at issue did not make the incident too remote for purposes of establishing identity). The North Carolina Supreme Court has instructed that remoteness must be considered in light of the specific facts of each case. State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 160 (2012).
The proffered purpose of the 404(b) evidence affects the temporal proximity analysis. Beckelheimer, 726 S.E.2d at 160. For example, remoteness in time may be significant when the 404(b) evidence is introduced to show that the crime arose out of a common scheme or plan. State v. Lloyd, 354 N.C. 76, 91 (2001); State v. Carter, 338 N.C. 569, 588 (1994); State v. Mobley, 200 N.C. App. 570, 577 (2009). On the other hand it may be less significant when the evidence is proffered to show
- modus operandi, Beckelheimer, 726 S.E.2d at 160;
- state of mind, such as malice, State v. Maready, 362 N.C. 614, 624 (2008);
- motive, State v. Locklear, 363 N.C. 438, 448 (2009); State v. Haskins, 104 N.C. App. 675, 682 (1991); or
- lack of accident, Locklear, 363 N.C. at 448.
In these instances, remoteness goes to the weight of the evidence rather than to its admissibility. Beckelheimer, 726 S.E.2d at 160; Locklear, 363 N.C. at 448; Maready, 362 N.C. at 624.
When the 404(b) acts occurred some time ago but show a pattern of similar activity over time, courts have found that the passage of time can actually reinforce rather than undercut the value of the evidence. State v. Shamsid–Deen, 324 N.C. 437, 445 (1989) (prior sexual acts occurring over a 20–year period were not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually; “[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than to disprove the existence of a plan”); State v. Khouri, __ N.C. App. __, 716 S.E.2d 1, 8-9 (2011) (in a child sex case, 404(b) evidence that the defendant sexually assaulted another child from 2001 to until she turned eighteen in 2007 was admissible where the defendant’s sexual assault on the child victim at issue began in 2007; once the defendant discontinued his acts on the first girl, he initiated contact with the victim). This rule applies with special force in second-degree murder cases where the 404(b) evidence is a pattern of prior motor vehicle offenses being offered to show malice. State v. Maready, 362 N.C. 614, 622-24 (2008) (no plain error occurred when the trial judge admitted 404(b) evidence of the defendant’s six prior DWI convictions where four occurred in the sixteen years before the events at issue, including one within six months of the event at issue; the convictions “constitute part of a clear and consistent pattern of criminality that is highly probative of his mental state”). However, that does not mean that any combination of prior motor vehicle offenses will be admissible as part of a pattern of behavior to show malice for purposes of second-degree murder. See, e.g., State v. Davis, 208 N.C. App. 26, 43-46 (2010) (the trial court committed prejudicial error by admitting evidence of three of the defendant’s four prior DWI convictions to show malice; three of her convictions occurred eighteen or nineteen years prior to the accident at issue and one occurred two years prior; given the gap between the older convictions and the more recent one, there was not a clear and consistent pattern of criminality and the older convictions were too remote to be admissible).
The age of a conviction may be discounted for periods when the defendant’s activity was interrupted by, for example, a prison sentence or lack of access to victims. See, e.g., State v. Barnett, __ N.C. App. __, 734 S.E.2d 130, 134 (2012) (five year gap between incidents of rape was explained by the defendant’s lack of access to the victim for three years); State v. Brooks, 138 N.C. App. 185, 200 (2000) (17 year gap between incidents of assaults on his wives was explained by the defendant’s incarceration and lack of marital discord); State v. Frazier, 121 N.C. App. 1, 11 (1995) (gaps between the defendant’s acts of sexual abuse on children were explained by the defendant’s lack of access to victims). However, in order for a period of time to be excluded from the analysis, the proponent must introduce competent evidence of the period of the interruption. State v. Gray, 210 N.C. App. 493, 509 (2011) (declining to toll the time period during the defendant’s incarceration because the State failed to offer competent evidence as to the length of his incarceration); State v. Delsanto, 172 N.C. App. 42, 51-52 (2006) (State failed to establish interruption).
Even when Rule 404(b) evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my fourth post on Rule 404(b) evidence, I’ll explore the requirement of similarity.
As a general rule, 404(b) evidence must be sufficiently similar to the act in question. The evidence is sufficiently similar if there are unusual facts present in both incidents. Beckelheimer, 726 S.E.2d at 159. However, the similarities need not “rise to the level of the unique and bizarre.” Id. (quotation omitted). Nor must the incidents be identical. Id. at 160. As the North Carolina Supreme Court has stated: “near identical circumstances are not required; rather, the incidents need only share some unusual facts that go to a purpose other than propensity.” Id. (quotation and citation omitted); see also State v. Khouri, __ N.C. App. __, 716 S.E.2d 1, 8 (2011) (in a child sex case, rejecting the defendant’s argument that the defendant’s sex acts with another child were different from those charged because one occurred in private and the other occurred in public).
By the same token, for most 404(b) purposes, some degree of similarity is required; when the requisite similarity is lacking, the evidence is inadmissible. See State v. Davis, __ N.C. App. __, 731 S.E.2d 236, 239-42 (2012) (in a child sex case in which the defendant was charged with assaulting his six-year-old son, the trial court committed reversible error by admitting evidence of the defendant’s writings in a composition book about forcible, non-consensual anal sex with an adult female acquaintance; the events described in the book were not sufficiently similar to the case at bar given that “the only overlapping fact was anal intercourse”; the actual force described in the book was “not analogous to the constructive force theory that applies with sexual conduct between a parent and child”; aside from anal intercourse, “the acts bore no resemblance to each other, involving different genders, radically different ages, different relationships between the parties, and different types of force”); State v. Flood, __ N.C. App. __, 726 S.E.2d 908, 913-14 (2012) (in a case involving a 2007 drug-related murder, the trial court committed reversible error by admitting evidence that the defendant was involved in a 1994 homicide in which he broke into an apartment, found his girlfriend in bed with the victim, and shot the victim to show identity; the acts where not sufficiently similar); State v. Gray, 210 N.C. App. 493, 510-13 (2011) (in a child sex case involving a five-year-old female victim and allegations of digital penetration, the trial court committed prejudicial error by admitting evidence that the defendant had anal intercourse with a four-year-old male 18 years earlier; although the incidents both involved very young children and occurred at a caretaker’s house where the defendant was a visitor, the nature of the assaults was very different).
When the prior acts are very old, the requirement of similarity may be heightened. See, e.g., State v. Webb, 197 N.C. App. 619, 623 (2009) (in a child sexual abuse case, evidence that the defendant abused two witnesses 21 and 31 years ago was improperly admitted requiring a new trial; in light the fact that the prior incidents were decades old, more was required in terms of similarity than that “the victims were young girls in the defendant’s care, the incidents happened in [the defendant’s] home, and [the defendant] told the [victims] not to report his behavior”).
By contrast, in certain circumstances, the requirement of similarity may not apply, such as when the 404(b) evidence establishes
- identity by connecting the defendant to the weapon used in the current offense, State v. Dean, 196 N.C. App. 180, 191-92 (2009) (in a murder case, evidence of an assault committed by the defendant two days before the murder at issue was admissible to show identity when ballistics evidence established that the same weapon was used in both incidents; the court rejected the defendant’s argument that the incidents were dissimilar);
- motive, State v. Haskins, 104 N.C. App. 675, 682-83 (1991); and
- chain of events leading up to the incident in question, State v. Golden, __ N.C. App. __, 735 S.E.2d 425, 429-32 (2012) (in perpetrating a hoax by use of a false bomb case, the trial court did not err by admitting evidence of the defendant’s acts against his estranged wife where those incidents were part of the chain of events leading up to the crime and thus completed the story of the crime for the jury; the court rejected the defendant’s argument that the prior acts were not sufficiently similar to the act charged on grounds that similarity was “not pertinent to the purpose for which the evidence was admitted”).
Finally, “[a]lthough the decision to join offenses for trial often involves considerations similar to those reviewed when determining whether to admit evidence of a prior offense under Rule 404(b), the decision to join or not to join offenses does not determine admissibility of evidence under Rule 404(b).” State v. Locklear, 363 N.C. 438, 446 (2009).
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.
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.
Evidence Rule 404(b) allows for the admission of evidence of other crimes, wrongs, or acts for purposes other than propensity, such as proving motive, opportunity, intent, preparation or plan. In a series of posts, I’ll explore common issues that arise regarding Rule 404(b). First up is the bare fact of conviction rule.
As a general rule, the bare fact of a defendant’s conviction is not admissible under Rule 404(b). The North Carolina Supreme Court established the bare fact of conviction rule in State v. Wilkerson, 356 N.C. 418 (2002), where it reversed the decision below (State v. Wilkerson, 148 N.C. App. 310 (2002)) for the reasons stated in Judge Wynn’s dissent. See also State v. McCoy, 174 N.C. App. 105, 110-111 (2005) (reversing because of Wilkerson error); State v. Scott, 167 N.C. App. 783, 785-86 (2005) (same). In his Wilkerson dissent (subsequently adopted by the Supreme Court), Judge Wynn reasoned that 404(b) evidence is admissible only for certain purposes. Wilkerson, 148 N.C. App. at 319. The bare fact of conviction, he reasoned, “would rarely, if ever, be probative of any legitimate Rule 404(b) purpose.” Id. Rather, it is the facts and circumstances of the offense that have probative value. Id. Additionally, he concluded, even if the bare fact of conviction had any probative value for Rule 404(b) purposes that value is substantially outweighed by prejudice, requiring exclusion under Rule 403. Id.
The Wilkerson rule prohibiting the admissibility of the bare fact of conviction under Rule 404(b) is in contrast to admissibility under Rule 609, which allows for impeachment with evidence of a conviction. Wilkerson, 148 N.C. App. at 319. For purposes of Rule 609 impeachment, the only admissible evidence is the record of conviction (bare fact of conviction). Id. at 320-23. Thus, when the defendant testifies at trial, both the facts and circumstances of the conviction may be admissible (under Rule 404(b)) and the fact of conviction may be admissible (under Rule 609).
As is often the case, however, where there is a general rule, there are exceptions. With regard to the bare fact of conviction rule, there are four:
1. Categorical Exception in Second-Degree Murder Cases. In his dissent in Wilkerson, Judge Wynn noted that “our courts have recognized a categorical exception” that allows admission of prior traffic-related convictions to prove malice in second-degree murder cases. Wilkerson, 148 N.C. App. at 328; see also State v. Rollins, __ N.C. App. __, 725 S.E.2d 456, 462 (2012) (citations were relevant to establish malice for purposes of second-degree murder).
2. Narrow Exception for Sexual Assault Cases. In his dissent in Wilkerson, Judge Wynn noted that case law supported a narrow exception to the bare fact of conviction rule allowing evidence of a prior sexual assault conviction to be admitted under Rule 404(b) to show the defendant’s intent to rape the victim in a case where the victim escaped before the offense was completed. Wilkerson, 148 N.C. App. at 325 & 328. Later case law confirms the limited applicability of this exception. State v. Bowman, 188 N.C. App. 635, 643-44 (2008) (error to admit bare fact of conviction in a sex case).
3. Narrow Exception for Motive or Intent. In his dissent in Wilkerson, Judge Wynn noted:
Arguably, under very narrow circumstances, bare evidence of a prior conviction could be probative of an enumerated purpose under 404(b); for instance, the bare fact that defendant was convicted of an offense could be probative of a defendant’s motive or intent in committing a subsequent crime of assaulting a witness that helped procure the earlier conviction. Even then, the trial court would be required to assess the prejudice of allowing the bare evidence of the prior conviction under Rule 403.
Wilkerson, 148 N.C. App. at 327 n. 2.
4. Exception for Victim’s Prior Convictions. The bare fact of conviction rule does not apply to evidence of the victim’s convictions. State v. Jacobs, 363 N.C. 815, 824-25 (2010) (Wilkerson did not require exclusion of the certified copies of the victim’s convictions; unlike evidence of the defendant’s conviction, evidence of certified copies of the victim’s convictions does not encourage the jury to acquit or convict on an improper basis).
So there you have it: the general rule and the four exceptions. Questions? Fire away!
I have been asked several times whether the state may admit, under N.C. R. Evid. 404(b), evidence of noncriminal conduct. The answer is yes, assuming of course that the evidence is offered for a proper purpose under the Rule and meets the other requirements for admissibility.
Examples. This issue can arise in many kinds of cases. When a defendant is charged with selling illegal steroids, the state may wish to admit evidence of prior sales of legal muscle-builders to show a common scheme or plan. Or, when a defendant is charged with possession of child pornography, the state may seek to introduce evidence of the defendant’s possession of sexually suggestive, but not pornographic, images of children in order to show the defendant’s motives.
Analysis. By its terms, Rule 404(b) applies to “acts” as well as to “crimes” and “wrongs.” Therefore, as the court explained in State v. Wilson, 108 N.C. App. 117 (N.C. App. 1992), Rule 404(b) “evidence is not limited to evidence of other criminal or unlawful acts on the part of the defendant, but also includes any extrinsic conduct or misconduct by the defendant which is relevant to an issue in the case other than to show that the defendant has the propensity for the type of conduct with which he is charged.” So the fact that the conduct at issue was lawful does not, in itself, provide a basis for objecting to its admissibility under Rule 404(b).
Other jurisdictions. Out of state cases uniformly agree with the conclusion reached in Wilson. United States v. Scott, 677 F.3d 72 (2d Cir. 2012) (noting the every federal circuit court “to consider the issue has concluded that Rule 404(b) extends to non-criminal acts or wrongs,” collecting cases, and joining the consensus); United States v. Long, 328 F.3d 655 (D.C. Cir. 2003) (defendant engaged in sexual activity with, and took explicit pictures of, underage teen boys; he was charged with related crimes; the government’s evidence included testimony from overage teen boys with whom the defendant had engaged in similar conduct; the testimony was properly admitted under Rule 404(b) to show, inter alia, intent, pattern, and modus operandi); Meece v. Commonwealth, 348 S.W.3d 627(Ky. 2011) (observing that Rule 404(b) evidence “is not limited to other acts that are criminal or unlawful” and citing precedent).
Commentators. Commentators also concur. See, e.g., 2 Weinstein’s Federal Evidence § 404.20[2][a] (2d ed. 2003) (“Rule 404(b)’s terminology ‘other crimes, wrongs, or acts’ includes conduct that is neither criminal nor unlawful if it is relevant to a consequential fact”); State v. Stout, 237 P.3d 37 (Mont. 2010) (collecting the uniform views of commentators, including Imwinkelried, Mueller & Kirkpatrick, Wright & Graham, and Weinstein).
The court of appeals decided State v. Howard earlier this week. The opinion addresses several issues, but I want to focus on what is sometimes called the connected crimes doctrine, which allows the state to introduce evidence of uncharged crimes closely related to a charged offense notwithstanding Rule 404(b)’s limitations on evidence of uncharged bad acts.
The defendant in Howard was charged with, and convicted of, robbing a woman at gunpoint as she entered her hotel room in Archdale. The crime took place at 12:50 a.m. The defendant took her laptop computer, her camcorder, and her wallet. At trial, the state also introduced evidence showing that the defendant broke into Daddy Rabbit’s gun store in Lexington at 4:30 a.m. on the same day, taking a laptop computer and a rifle. A citizen saw the defendant commit the break-in, followed him as he drove away, and called the police. Based on the information provided by the citizen, the police apprehended the defendant shortly thereafter, in possession of the items taken in both incidents.
Although the defendant was not charged with the Daddy Rabbit’s break-in, he did not object to the admission of the Daddy Rabbit’s evidence at trial, so the court of appeals reviewed for plain error. It found none, quoting State v. Agee, 326 N.C. 542 (1990), as follows:
[A]dmission of evidence of a criminal defendant’s prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, has been approved in many other jurisdictions following adoption of the Rules of Evidence. This exception is known variously as the “same transaction” rule, the “complete story” exception, and the “course of conduct” exception. Such evidence is admissible if it forms part of the history of the event or serves to enhance the natural development of the facts. We similarly hold that the “chain of circumstances” rationale established in our pre-Rules cases survives the adoption of the Rules of Evidence.
Similar support for the admissibility of connected crimes comes from State v. White, 340 N.C. 264 (1995) (holding that evidence is admissible if it “establishes the chain of circumstances or context of the charged crime . . . enhance[s] the natural development of the facts[,] or is necessary to complete the story of the charged crime for the jury”). See also Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 95 (7th ed. 2011) (“Where two offenses are so closely connected that neither can be adequately proved without proving the other, evidence of both is admissible on a trial for committing either one.”).
Brandis & Broun calls this the connected crimes doctrine, and I like that terminology, though Agee makes clear that there are other names for the same rule. Whether the doctrine is an exception to Rule 404(b) or whether showing the context and circumstances of the crime is a proper purpose under Rule 404(b) is of only academic import.
Sometimes the connected crimes doctrine comes up when two offenses take place almost simultaneously. For example, when a defendant uses drugs, then commits a crime while intoxicated, it is certainly proper for the state to introduce evidence of the drug use even if the defendant isn’t charged with a drug offense. Sometimes, as in Howard, there is a greater gap in time between the uncharged crime and the charged offense. In such a case, the applicability of the doctrine may be more debatable. For example, one might argue that the Daddy Rabbit’s break-in was not closely connected to the robbery because it was a different type of crime, and took place four hours later and eleven miles away. But Howard is a good example of an uncharged crime that is admissible because it is factually intertwined with the defendant’s detection and arrest, even if not closely connected with the charged crime itself. Explaining how, why, and when the defendant was arrested was important given the incriminating evidence found during the arrest, and explaining that necessitated referring to the events at Daddy Rabbit’s.
But enough about connected crimes. One other interesting thing about Howard is that the jury deliberated for only seven minutes before convicting the defendant. I’ve never heard of a faster jury verdict. Have you?