Opinion
No. 07-1337.
Filed 15 July 2008.
Forsyth County Nos. 06 CRS 064031, 07 CRS 005025.
Appeal by defendant from judgment entered 11 July 2007 by Judge Andy Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 16 April 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Terence D. Friedman, for the State. Michael J. Reece for defendant-appellant.
Jerry Dean Bryant ("defendant") appeals from a judgment entered pursuant to a jury verdict of guilty of felony breaking or entering a motor vehicle and resisting a public officer, as well as achieving habitual felon status. After careful consideration, we find no error.
I.
The evidence presented at trial tended to show the following: On 14 December 2006, Officer D.J. Marshall of the Winston-Salem Police Department responded to a suspicious vehicle call on Shattalon Drive. There, he found a car running with its lights on parked in the driveway. Officer Marshall pulled in behind the car and activated his blue lights and siren. As Officer Marshall stepped out of his car, defendant exited the vehicle and started walking toward the house next to the driveway. Officer Marshall called him back and began to ask questions regarding the vehicle; according to Officer Marshall, the first thing defendant said was "he was just in the vehicle to get warm." Defendant admitted it was not his vehicle.
Officer Marshall asked defendant to return to his own vehicle and then returned to his patrol car to check the vehicle's plates; finding them to be stolen, Officer Marshall then called for back-up. Exiting his car, he then approached the vehicle with defendant inside and asked defendant to step out. Officer Marshall placed defendant under arrest and asked him to put his hands behind his back, but defendant locked his elbows so that his arms would not extend and refused several requests by Officer Marshall to place his hands behind his back. Finally, Officer Marshall was able to physically maneuver defendant to the ground and handcuff him, after which he transported defendant to the detention center; there, he was charged with possession of a stolen motor vehicle and resisting a public officer.
Prior to trial, the superior court held a hearing as to the admission of certain evidence regarding defendant's prior bad acts which the State wanted to present at trial. The evidence at issue concerned two of defendant's prior arrests for stealing items from cars. The court held that the evidence from one but not the other of the two prior arrests would be admissible at trial. Defendant was convicted by a jury verdict of guilty on both counts on 10 July 2007. He was assigned a prior record level of VI and sentenced to a term of 125 to 159 months' imprisonment. Defendant appeals.
Defendant was also found guilty of being a habitual felon. He appealed this conviction, but made no arguments to it in his brief. We therefore deem his appeal on that point abandoned. See N.C.R. App. P. 28(b)(6).
II.
The evidence at issue concerns an incident wherein defendant was arrested on 8 July 2000. Before the trial began, the court allowed a voir dire with respect to Corporal Todd Christopher Hart, the arresting officer at that incident. During that hearing, many details regarding the 8 July incident were brought out, but the court and parties agreed that Officer Hart would be allowed to testify as to only certain details of the arrest.
Just before Corporal Hart was called to testify, the court read to the jury a written stipulation, agreed to by both parties, that read as follows:
Officer Hart was involved in a lawful investigation of automobile break-ins in July, 2000. During the course of that investigation Officer Hart interviewed the Defendant Jerry Dean Bryant. The results of that interview are being offered solely for the purpose of showing that the Defendant had a motive for the commission of the crime charged in this case; that the Defendant had the intent, which is a necessary element of the crime charged in this case; and that there existed in the mind of the Defendant a plan, scheme, system or design involving the crime charged in this case. If you believe this evidence you may consider it but only for the limited purposes for which it is being received.
After a few preliminary questions, Officer Hart testified as follows: In the course of his work as a police officer, he investigated "some car break-ins" around 8 July 2000 and interviewed defendant in the course of that investigation. Officer Hart read from the report he prepared at that time the record of his interview with defendant, which consisted of the following questions and answers:
I talked about a — two cars being broken into, and said, he entered a Ford Explorer and took some items from the vehicle, but did not break glass to get in the vehicle.
I asked him where the items — where is [ sic] the items from the vehicle?
And he said, he wasn't sure.
I asked, did you damage the vehicle when you entered the Subaru on 6-29-2000?
He stated, no.
I asked, where were the items from that vehicle?
He stated, he wasn't too sure.
And then I wrote, why did you break into vehicles?
He stated, I was walking down the street, and I was trying the door handles.
And I wrote, were the vehicles near each other?
And he stated, yes.
The State asked whether this was the full extent of Officer Hart's interview with defendant, and Officer Hart replied that it was. The rest of Officer Hart's testimony consisted of the introduction of a written statement from that investigation, and, on cross-examination, a question confirming the interview date was 9 July and that defendant wrote and signed a statement at that time. Defendant's statement was admitted into evidence. This was all the evidence introduced at trial regarding the earlier incident.
Defendant argues that the court erred by admitting this evidence. This argument is without merit.
First, defendant argues that admission of this evidence was not authorized under Rule 404(b). This rule of evidence states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2007). Here, as stated by the court during voir dire and noted in the stipulation recited above, the court held that the evidence at issue was admissible for the purposes of motive, intent, and plan.
In State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), our Supreme Court described Rule 404(b) as a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.
Id. at 278-79, 389 S.E.2d at 54 (emphasis omitted). Further, "the rule of inclusion described in Coffey is constrained by the requirements of similarity and temporal proximity." This Court has stated that "remoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility."
State v. Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105, 110 (2007) (citations omitted).
Defendant argues that the crime with which he was charged in this case was not sufficiently similar to the actions behind his previous arrest to be admissible under Rule 404(b).
In making this argument, defendant relies heavily on State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002). While that opinion does note the requirements of similarity and temporal proximity, immediately thereafter it states that "[e]vidence of a prior bad act generally is admissible under Rule 404(b) if it constitutes `substantial evidence tending to support a reasonable finding by the jury that the defendant committed the similar act.'" Id. at 155, 567 S.E.2d at 123 (citation omitted; emphasis omitted). Further, our Supreme Court has specifically held that "evidence of prior crimes that tends to establish a particular mental state" — such as intent — "may be admitted into evidence" under Rule 404(b). State v. Morgan, 359 N.C. 131, 159, 604 S.E.2d 886, 903 (2004).
We note, however, that similarity and temporal proximity do exist here: The crimes were six years apart, but during those six years, defendant was convicted of at least seven other offenses (as evidenced by his prior record level worksheet) that would have resulted in his imprisonment. This Court has explicitly stated that "`[i]t is proper to exclude time defendant spent in prison when determining whether prior acts are too remote.'" State v. Lloyd, 354 N.C. 76, 91, 552 S.E.2d 596, 610 (2001) (citation omitted). Further, unlike the defendant in Al-Bayyinah, defendant here admitted to and was convicted of the July 2000 crime. Al-Bayyinah, 356 N.C. at 155, 567 S.E.2d at 123.
As the court stated in the stipulation read before Officer Hart's testimony, intent was an element of the crime with which defendant was charged. At least twice during the trial, defendant's attorney raised questions as to defendant's intent to have broken into and entered the car. Defendant's attorney argued that the more likely explanation was that someone else stole the car and defendant, having happened upon it later, was simply sitting in it to stay warm. Defendant's statement made in relation to the 8 July incident that he had been testing car doors in order to enter and steal from cars bears directly on his intent in his occupation of the vehicle in this case. As such, it was not error to admit this evidence.
"`[W]here at least one of the [other] purposes for which the prior act evidence was admitted was [proper,]' there is no prejudicial error." Morgan, 359 N.C. at 158, 604 S.E.2d at 903 (citation omitted; alterations in original). Thus, because the evidence was properly admitted for purposes of intent, we need not address the other bases mentioned by the trial court.
Defendant next argues that this evidence should have been excluded under Rule 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially out weighed by the danger of unfair prejudice[.]" N.C. Gen. Stat. 8C-1, Rule 403 (2007).
Whether to exclude evidence pursuant to Rule 403 is a matter left to the sound discretion of the trial court. A ruling by the trial court will be reversed for an abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.
State v. Jones, 347 N.C. 193, 213, 491 S.E.2d 641, 653 (1997). For the reasons stated above, admission of this evidence was not an abuse of discretion, and as such, this argument is without merit.
III.
Because defendant has not shown that the trial court erred in admitting evidence of his prior crime, we find no error.
No error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).