Opinion
No. COA03-2
Filed 3 February 2004 This case not for publication
Appeal by defendant from judgment dated 30 August 2002 by Judge Judson D. DeRamus, Jr., in Superior Court, Forsyth County. Heard in the Court of Appeals 16 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General Margaret P. Eagles, for the State. Michael J. Reece for defendant-appellant.
Forsyth County, No. 01 CRS 62233 39721.
Larry Douglas Watlington (defendant) was convicted on 30 August 2002 of felony possession of cocaine in violation of N.C. Gen. Stat. § 90-95 and of attaining the status of habitual felon. The trial court found defendant to have a prior record level VI and sentenced defendant to a minimum term of 168 months and a maximum term of 211 months imprisonment. Defendant appeals.
The evidence at trial tended to show that on 29 November 2001, Winston-Salem Police Officers Michael Pattisall and A.J. Santos were on foot patrol in an area that included Happy Hill Garden, a public housing complex. Officer Pattisall observed defendant and another man walking towards him. Officer Pattisall recognized defendant as an individual previously banned from HappyHill Garden by the Winston-Salem Housing Authority. When defendant saw Officer Pattisall, he turned and began walking away, but then defendant observed Officer Santos and turned back towards Officer Pattisall. Officer Pattisall saw defendant throw a small object to the ground. As Officer Pattisall arrested defendant, Officer Santos retrieved the item that defendant had thrown to the ground. During his arrest, defendant stated to Officer Pattisall, "you didn't see me throw anything, one of your boys might have, but you didn't see me throw nothing." The object was a cellophane cigarette pack wrapper containing a white residue, which was later determined to be cocaine. Officer Santos testified that transporting crack in a cellophane wrapper was unusual.
Over defendant's objection, Officer T.J. Convery of the Winston-Salem Police Department testified about a prior incident involving defendant's possession of cocaine. Officer Convery testified that on 27 September 1999, he was patrolling an area less than one mile from the Happy Hill Garden area when he was waved down by defendant. Defendant requested a ride to an elementary school several miles away. Defendant was allowed into the back seat of the patrol car after Officer Convery frisked him for weapons and checked to ensure there was nothing in the back seat. During the ride, Officer Convery noticed defendant was "acting suspicious" and trying to move something behind his back. Upon arrival at the school, Officer Convery used his flashlight to look into the rear of the vehicle. He observed a crack pipe and immediately arrested defendant. Officer Convery then found a smallpiece of folded cellophane on the back seat of the vehicle. The cellophane was from a cigarette pack and it contained a white substance which field tested positive for cocaine. Upon searching defendant, Officer Convery found a second piece of cellophane also containing white residue which field tested positive for cocaine. Officer Convery testified this was the first time he had seen cocaine stored in cellophane.
We first note defendant has failed to present an argument in support of assignments of error two, four, and five through thirteen, and they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
Defendant first argues the trial court erred by admitting the testimony of Officer Convery regarding the September 1999 incident when defendant was arrested for possession of cocaine. Defendant contends admission of this evidence was in violation of Rule 404(b) of the North Carolina Rules of Evidence, which provides in part:
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) (2003).
Rule 404(b) is a rule of inclusion of relevant evidence of prior bad acts unless the only reason the evidence is offered is to show a defendant's propensity or disposition to commit a crime of the nature of the act charged. 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). Regarding common scheme or plan, our Supreme Court has explained this exception in the following manner: "Evidence of other offenses is admissible if it tends to show the existence of a plan or design to commit the offense charged, or to accomplish a goal of which the offense charged is a part or toward which it is a step." State v. Barfield, 298 N.C. 306, 329, 259 S.E.2d 510, 529 (1979), cert. denied, 448 U.S. 907, 65 L.Ed.2d 1137 (1980), overruled on other grounds, State v. Johnson, 317 N.C. 193, 203-04, 344 S.E.2d 775, 782 (1986). Further, our Supreme Court has stated that "evidence that defendant committed similar acts which are not too remote in time may be admitted to show that these acts and those for which the defendant is being tried all arose out of a common scheme or plan on the part of the defendant." State v. Rosier, 322 N.C. 826, 828, 370 S.E.2d 359, 360-61 (1988). "A mere similarity in results is not a sufficient basis upon which to receive evidence of other offenses. Instead, there must be such a concurrence of common features that the assorted offenses are naturally explained as being caused by a general plan." Barfield, 298 N.C. at 329, 259 S.E.2d at 530. "There must be some unusual facts present in both crimes or especially similar acts which would indicate that the same individual perpetrated both crimes." State v. Barts, 316 N.C. 666, 685-86, 343 S.E.2d 828, 841 (1986).
In the case before us, Officers Pattisall and Santos found a cellophane cigarette pack wrapper containing cocaine residue which defendant had thrown to the ground as the officers were approaching him. Similarly, two years earlier Officer Convery arresteddefendant for possession of cocaine, which defendant had stored in two cigarette pack cellophane wrappers. Both Officers Santos and Convery testified to the uniqueness of transporting cocaine in this manner. When asked how many times he had come into contact with this use of cellophane cigarette pack wrappers through his work, Officer Santos replied, "honestly, probably this one, first one that I have ever seen packaged like that." Further, when Officer Convery was asked whether he had ever seen crack packaged in cellophane, he stated, "I believe this was the first time." This testimony establishes the unusual facts contemplated by Barts. In addition to the similar storage method of the same drug, both incidents occurred less than a mile from one another.
Regarding Officer Convery's testimony, defendant also argues the prior incident was too remote in time to constitute a common scheme or plan.
The use of evidence as permitted under Rule 404(b) is guided by two constraints: similarity and temporal proximity. . . . When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor.
State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), sentence vacated and remanded on other grounds, 494 U.S. 1023, 108 L.Ed.2d 604 (1990). Here, although the incidents occurred two years apart, in light of prior cases, this time gap is not too great to render the evidence inadmissible. Barfield, 298 N.C. at 329, 259 S.E.2d at 529 (death four years prior admitted in murder trial under common scheme or plan). Therefore, the similaritiesbetween the events and the acceptable time difference between the occurrences made Officer Convery's testimony admissible under the common plan exception in Rule 404(b) of the North Carolina Rules of Evidence. Accordingly, this assignment of error is overruled.
Defendant also argues the trial court erred by failing to instruct the jury to limit its use of evidence of prior bad acts admitted, pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b). Since defendant failed to object at trial, we review defendant's argument under a plain error review. N.C.R. App. P. 10(c)(4); State v. Rourke, 143 N.C. App. 672, 675, 548 S.E.2d 188, 190, cert. denied, 354 N.C. 226, 553 S.E.2d 396 (2001). Plain error is one "`so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002), cert. denied, ___ U.S. ___, 156 L.Ed.2d 640 (2003) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L.Ed.2d 912 (1988)).
In this case, there was compelling evidence that defendant possessed cocaine on 29 November 2001. Officer Pattisall testified that he saw defendant throw an object on the ground as he approached defendant and the object was later determined to be a cellophane cigarette pack wrapper containing cocaine residue. Therefore, even if the trial court's failure to give a limiting instruction was error, the omission was not so fundamental that it would have resulted in the jury reaching a different verdict. Accordingly, the trial court did not commit plain error when it did not give the jury a limiting instruction pertaining to the prior cocaine possession evidence.
No error.
Judges HUDSON and CALABRIA concur.