Opinion
No. COA08-886.
Filed 19 May 2009.
Cleveland County Nos. 06CRS54383, 06CRS5934, 07CRS 1186.
Appeal by defendant from judgments entered 28 January 2008 by Judge Jesse B. Caldwell in Cleveland County Superior Court. Heard in the Court of Appeals 5 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State. Mary March Exum, for defendant-appellant.
Santonio Lanquet Brooks ("defendant") appeals from judgments entered upon his convictions for discharging a weapon into occupied property, possession of a firearm by a felon, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant challenges the admission of evidence of similar bad acts under N.C.R. Evid. 404(b), arguing that the evidence impermissibly intimated he is a person of bad character who was predisposed to commit the crimes at issue. After careful review, we find no error.
At trial, the evidence tends to show that in the early morning of 8 July 2006, Felicia Roseboro and her boyfriend, Melvin Whitworth, were headed to a house on Walnut Street for a party. Ms. Roseboro drove her car and parked on the left side of the road next to the sidewalk at a stop sign. Mr. Whitworth got out of the car and stepped onto the sidewalk. A taxi pulled up next to them and two men got out, one named Perry Lamont Ussery and one called Chuck. They went toward the house, but someone pushed Mr. Ussery back down the steps. When he was back on the sidewalk, four men ran toward Mr. Ussery shooting. Mr. Ussery ducked beside Ms. Roseboro's car, and she began backing up the car. Bullets hit her car, coming in through the windshield and passenger side. Ms. Roseboro called the police. She could identify three of the four men, including defendant, and said they all had guns. She saw Mr. Ussery run through bushes and between two houses.
Later that day, defendant told Ms. Roseboro he was sorry about her car and offered to pay for the windshield. Ms. Roseboro gave a statement to Detective Camp the morning of the next day, stating that defendant had a long silver gun. Detective Camp also observed the damage done to the car from the bullets that came through the windshield and the side panel. He stated he thought one bullet had been recovered from the car. Ms. Roseboro also gave a statement to Officer Barbie Ledford in which she identified three men who shot at her car, including defendant. Ms. Roseboro stated that the three shooters hid their guns behind a house and retrieved them after the police left. Officer Ledford observed that Ms. Roseboro's car had bullet holes in it.
Mr. Ussery testified and related that on the night in question he went to the Walnut Street house described by Ms.Roseboro. Defendant was standing in the front yard with two of his friends. Mr. Ussery and defendant exchanged words outside of the house. They were not getting along because Mr. Ussery and one of defendant's friends had gotten into a fight about two weeks prior to the night in question. Mr. Ussery testified that he went into the house to talk to some people, and when he came out, defendant and three others started shooting at him with handguns. He estimated hearing about fifteen or sixteen gunshots. Mr. Ussery was shot in the leg, and ran in front of Ms. Roseboro's car trying to get away from the shooting. She was backing the car up trying to get away from the shooting. Mr. Ussery ran away from the scene and called his sister to pick him up and take him to the hospital, where his injury was treated. He gave a statement to Officer Treadwell at the hospital about the incident and identified three of the people who had shot at him, including defendant. Officer Treadwell related that Mr. Ussery had an open gunshot wound to the lower leg, and the bullet had broken the bone.
Mr. Ussery was also permitted to testify, over defendant's objection, regarding an incident in early September, about two months after the shooting incident on 8 July. Mr. Ussery was in a Jeep with his stepson and the boy's mother, when he pulled up next to a friend. Mr. Ussery and the friend were talking, each in their vehicles, when defendant came out in the middle of the road and began shooting at the Jeep and the car with a handgun. Mr. Ussery estimated defendant shot about a dozen times. The Jeep was hit about four times, and Mr. Ussery was shot in the back. He went to the police, but did not require medical attention for the injury.
Officer Mark Wampler testified that he was sent to the Walnut Street house on the afternoon of 8 July 2006 to collect shell casings from the front yard of the house. He found casings from four different guns as well as one bullet. Officer Stephen Seate testified that he recovered a loaded nine-millimeter semi-automatic handgun from the closet of an apartment where defendant was found. Three other adults, besides defendant, were present in the apartment when the gun was found. The gun and the shell casings collected from the scene of the 8 July shooting on Walnut Street were sent to an SBI lab for analysis. SBI Agent Joseph Upton testified that after analyzing the casings and the gun, he concluded that the cases were fired from that gun. No bullets were sent to Agent Upton for analysis.
Defendant did not present any evidence. The jury returned verdicts of guilty of assault with a deadly weapon with intent to kill inflicting serious injury, discharging a weapon into occupied property, and possession of a firearm by a felon. The trial court sentenced defendant to the following consecutive sentences: (1) 27 to 33 months for discharging a weapon into occupied property; (2) 34 to 50 months for possession of firearm by a felon; and (3) 93 to 121 months for assault. From the judgments entered, defendant appeals.
Defendant argues the trial court erred in admitting evidence under Rule 404(b) that defendant committed a subsequent act, offered by the State to show that defendant intended to kill the victim. Defendant contends the admission of the evidence did nothing but impugn his character and that no proper purpose existed for admission of the evidence. We do not agree with defendant's arguments.
N.C.R. Evid. 404(b) provides in pertinent 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.
Our courts have construed Rule 404(b) as a rule of inclusion allowing evidence to be admitted unless "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). Where evidence of another bad act "is relevant to an issue other than the defendant's propensity to commit the charged offense, `the ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.'" State v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d 206, 209 (2005) (quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)). Even if evidence has been deemed admissible under Rule 404(b), the trial court "must still decide whether there exists a danger that unfair prejudice substantially outweighs the probative value of the evidence." Id.; N.C.R. Evid. 403. The decision of a trial court to admit or exclude evidence of prior bad acts will not be overturned absent an abuse of discretion. See State v. Carrilo, 149 N.C. App. 543, 551, 562 S.E.2d 47, 52 (2002). Abuse of discretion may be shown where a trial court's ruling is "manifestly unsupported by reason and could not have been the result of a reasoned decision." State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
We note that evidence of subsequent crimes, wrongs, or acts, similar to evidence of prior crimes, wrongs, or acts, is admissible under Rule 404(b) if they are not too remote in time or dissimilar from the incident giving rise to the charges. See State v. Hutchinson, 139 N.C. App. 132, 136, 532 S.E.2d 569, 572 (2000); see also State v. Biggs, 224 N.C. 722, 726, 32 S.E.2d 352, 355 (1944). Here, the State proffered evidence from the September 2006 incident as tending to show defendant's intent to kill Mr. Ussery in the incident occurring on 8 July 2006. Evidence was presented that defendant and Mr. Ussery were not getting along prior to the July incident for which defendant was charged. Evidence of the September incident to which defendant objected similarly supports an inference that defendant intended to kill or at least harm Mr. Ussery. The two incidents tend to show an ongoing dispute between two people, as posited by the State. We find that the two month gap in time is not so large that evidence of the September incident should have been excluded. Thus, the two incidents are sufficiently proximate in time under N.C.R. Evid. 404(b).
We also find the two incidents share enough similarities to render the September incident useful to show defendant's intent with regard to the July shooting. In both cases, Mr. Ussery was the victim, defendant was the attacker, the weapon used each time was a handgun, and both incidents occurred outside on the street with defendant approaching Mr. Ussery. Given the proximity in time and the similarity between the two incidents, we find the trial court did not abuse its discretion in admitting the evidence of the September 2006 incident pursuant to N.C.R. Evid. 404(b).
Moreover, we do not find the probative value of the subsequent act was substantially outweighed by the danger of prejudice to the defendant. The trial court gave a limiting instruction to the jury, as follows:
Members of the jury, evidence has been received tending to show that the defendant fired a weapon at Perry Ussery on or about September 7, 2006. We're not talking about the alleged date of the offenses for which he is charged, but at a later date. Members of the jury, this evidence was received solely for the purpose of showing that the defendant had a motive for the commission of the crime charged in this case and/or that the defendant had the intent, which is a necessary element of the crime charged in this case. Members of the jury, you are not to consider this evidence for any other purpose except that limited purpose.
Such an instruction guards against the possibility of prejudice. See Stevenson, 169 N.C. App. at 802, 611 S.E.2d at 210. Defendant's assignment of error on this issue is therefore overruled.
The remainder of defendant's assignments of error, not brought forth or argued in the brief, are deemed abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).