Opinion
No. COA02-1209
Filed 19 August 2003 This case not for publication
Appeal by defendant from judgment entered 14 July 1999 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 10 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General Robert R. Gelblum, for the State. Walter T. Johnson, Jr., for defendant-appellant.
Guilford County No. 99 CRS 29338.
Defendant appeals from judgment entered upon conviction by a jury of one count of robbery with a firearm. Based upon a prior record level of II, defendant was sentenced to a minimum of 75 months and a maximum of 99 months in the custody of the Department of Corrections. Due to her trial attorney's failure to inform defendant of her appeal rights, on 6 June 2000, defendant filed a Writ of Certiorari, which this Court granted on 13 July 2000. On appeal, defendant contends that the trial court erred in denying her motion in limine to exclude evidence of defendant's prior use of firearms and the admission of a letter written by defendant in which she admitted to committing the crime.
Factual Background
On 29 January 1999, sometime after 6 p.m., defendant and two males were riding around in a car owned by defendant in Greensboro, North Carolina. They were smoking marijuana-filled cigars. As the three rode through a residential neighborhood, they encountered a car driven by Ivonne Castillo, who was driving toward her home. Defendant stated to the two males that they should follow the car and that she was going to rob the woman in it. The three followed Ms. Castillo to her home. Ms. Castillo arrived at her home and pulled into the driveway, and the defendant instructed her car's driver to pull up behind her and shine the car's high beams so that Ms. Castillo could not see the occupants of defendant's car.
Defendant then got out of the car and approached Ms. Castillo. Defendant placed a small black handgun near Ms. Castillo's waistline and stated, "Lady, don't say anything. Just hand it over." Defendant then grabbed Ms. Castillo's purse and house keys. Ms. Castillo asked defendant to return her house keys, but defendant did not. Defendant then got back in her car and she and her two associates drove away.
On 28 January 1999, the day before the robbery, Walter Dowd, one of the two men who were in the car during the robbery, saw one or two small black handguns on or around the defendant.
On 4 February 1999, defendant and Dowd were stopped by campus police at the University of North Carolina at Wilmington. Dowd, who was driving defendant's car, was arrested for driving with a suspended license and using a false license plate. Defendant was arrested several days later in Greensboro. While incarcerated, Dowd received a letter from defendant in which defendant wrote, "I don't feel remorseful. I'm just mad that I got caught. F--- that b---- who claimed I robbed her."
Before Dowd testified at trial, defendant sought to exclude (1) testimony about defendant's use or possession of firearms on prior occasions and (2) the letter written by defendant and sent to Dowd containing the quotation above, among others about the robbery. The trial court denied both motions. Defendant now appeals, assigning error solely to the denial of the motions in limine.
Analysis
Our Courts have consistently held that "'[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'" State v. Bonnett, 348 N.C. 417, 437, 502 S.E.2d 563, 576 (1998), cert. denied, 525 U.S. 1124, 142 L.Ed.2d 907 (1999) ( quoting State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845, cert. denied, 516 U.S. 884, 133 L.Ed.2d 153 (1995)); see also Martin v. Benson, 348 N.C. 684, 685, 500 S.E.2d 664, 665, reh'g denied, 349 N.C. 242, 515 S.E.2d 706 (1998). Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and "thus an objection to an order granting or denying the motion `is insufficient to preserve for appeal the question of the admissibility of the evidence.'" TT Development Co. v. Southern Nat. Bank of S.C., 125 N.C. App. 600, 602, 481 S.E.2d 347, 348-349, disc. review denied, 346 N.C. 185, 486 S.E.2d 219 (1997) ( quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845).
Here, defendant assigned error to the denial of her motions in limine, and also objected to the admission of the testimony when offered at trial. Thus, the issue surrounding these rulings are properly before us.
Defendant challenges the admissibility of the testimony about the firearms as violating North Carolina Rule of Evidence 404(b). Although defendant does not cite to Rule 403 in her first argument, she contends that the testimony evidence should have been excluded because "its probative value is substantially outweighed by the danger of unfair prejudice." G.S. § 8C-1, Rule 403 (2001). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." G.S. § 8C-1, Rule 401 (2001). Generally, all relevant evidence is admissible. See G.S. 8C-1, Rule 402. Our Supreme Court has stated that "in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible." State v. Bruton, 344 N.C. 381, 386, 474 S.E.2d 336, 340 (1996) (internal quotation marks omitted). North Carolina Rule of Evidence 403 is identical to its federal counterpart which has been interpreted to the extent that the decision to exclude evidence under this rule rests solely in the discretion of the trial court. State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986), citing United States v. MacDonald, 688 F.2d 224 (4th Cir. 1982).
Rule 404(b) provides that:
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.
G.S. § 8C-1, Rule 404(b) (2001). Our Supreme Court has observed that Rule 404(b) is a 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." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Thus, though the evidence may establish other crimes, wrongs or acts by defendant and his propensity to commit them, the evidence is admissible under Rule 404(b) so long as it is also relevant for some purpose other than showing defendant's propensity to commit the crime for which he is being tried. Id. at 279, 389 S.E.2d at 54.
"When prior incidents are offered for a permissible purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect of Rule 403." State v. Ferguson, 145 N.C. App. 302, 305, 549 S.E.2d 889, 892, disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001) (citation omitted). A prior act is sufficiently similar to warrant admissibility under Rule 404(b) if there exist similar facts which would indicate the same person committed both crimes. State v. Sokolowski, 351 N.C. 137, 150, 522 S.E.2d 65, 73 (1999). It is not necessary that the similarities between the two situations "`rise to the level of the unique and bizarre' in order for the evidence to be admitted under Rule 404(b)." State v. Thomas, 350 N.C. 315, 356, 514 S.E.2d 486, 511, cert. denied, 528 U.S. 1006, 145 L.Ed.2d 388, 120 S.Ct. 503 (1999) (citation omitted). "Whether the evidence should be excluded is a decision within the trial court's discretion. Hence, the trial court's decision will not be disturbed, unless it is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Burgess, 134 N.C. App. 632, 635, 518 S.E.2d 209, 211 (1999) (citations and quotation marks omitted).
As to Dowd's testimony concerning the firearms, he testified that the day before the armed robbery, he saw guns similar to the one defendant used to commit the crime at defendant's residence. This evidence was relevant to show that defendant had access to and possession of firearms similar to the one she used to rob Ms. Castillo. This evidence also fits within N.C. Rule of Evidence 404(b)'s list of acceptable grounds for admitting "other acts" evidence as it is arguably evidence of "preparation." Defendant has not explained how this evidence posed a danger of "unfair prejudice," and we perceive none. Thus, we conclude that the trial court did not abuse its discretion by allowing this testimony into evidence.
As to the letter written by defendant to Mr. Dowd in which she stated, inter alia, "I don't feel remorseful. I'm just mad that I got caught. F--- that b---- who claimed I robbed her," we find this argument wholly without merit and overrule it.
Our courts have consistently found that the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice. See State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247 (1999) (testimony about a letter written by defendant to a rape victim's mother was held more probative than prejudicial); State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426, cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998) (letter written by defendant promising no further harm to a woman he ultimately murdered held admissible); State v. Moses, 316 N.C. 356, 341 S.E.2d 551 (1986) (letter written by defendant promising not to bother the victim again held admissible). Here, the letter was directly relevant to the events at issue and any prejudicial effect was not "unfair." Thus, the trial court did not abuse its discretion.
No error.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).