Opinion
No. COA08-1142.
Filed June 2, 2009.
Forsyth County No. 06CRS61315.
Appeal by defendant from judgment entered 1 May 2008 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 18 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General V. Lori Fuller, for the State. Michael E. Casterline, for defendant-appellant.
Artemus Shamont Brown ("defendant") appeals from judgment entered upon his conviction for robbery with a dangerous weapon. Defendant contends the trial court erred in admitting evidence of a similar crime or bad act pursuant to North Carolina Rule of Evidence 404(b). We find no error.
On 13 November 2006, defendant was indicted for robbery with a dangerous weapon. Prior to trial, the State moved to admit evidence regarding a second robbery allegedly committed by defendant pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b). The trial court heard arguments from both sides, including defendant's objection to introduction of the evidence, and decided to allow the evidence for the purpose of showing planning and preparation of the offense charged.
The State's evidence at trial tends to show that on the evening of 29 June 2006, Robert Durham was working at a Wilco-Hess station from 2:00 p.m. until 11:00 p.m. At six o'clock, his coworker left and he was left alone working the store. Around 10:00 p.m., Mr. Durham went into a back room to get doughnut boxes as part of his usual closing duties. When he came out with the boxes, he saw a man standing behind the counter. Mr. Durham asked the man, "What are you doing back there?" The man had on a mask, a hooded sweatshirt, and a black overcoat, and he was carrying a tire iron. Mr. Durham described the man as tall and slim, and estimated that he was about 6'4" or 6'5". The man approached Mr. Durham, raised the tire iron, and said, "Let's go back to the registers." Mr. Durham opened the registers, and the man took money from the drawer, as well as a money box from a cabinet under the register. Mr. Durham also saw another man in the store, and that man was wearing a mask, hood, and gloves. This second man came out of the back room where stock was kept, and he took some cigars from a shelf. Mr. Durham was asked to leave the store, and he did. Once he was outside, he saw the men coming out of the store. He then returned to the store and called the police. A videotape of the incident taken from the store's security camera was introduced into evidence and played for the jury.
James Jordan also testified for the State. He grew up with defendant and was good friends with him. He stated that he and defendant planned and carried out the robbery of the Wilco-Hess store together. On the night of 29 June 2006, he and defendant drove a Ford Contour to the store. Initially he didn't see anyone inside, and he parked the car at the back of the store in order to hide it. They were going to try to get money and get out before the store clerk reappeared. Mr. Jordan covered his face with a shirt, and took a crow bar and a black duffel bag from the car, and gave them to defendant. Inside the store, Mr. Jordan walked the aisles and took food and cigars. He saw the store clerk come out of the back, and saw him walk over to where defendant was and open the cash register. After about five or ten minutes, he and defendant left the store with the bag full of money, and drove the car to Mr. Jordan's apartment to count and divide the money between them.
Mr. Jordan also described a second robbery occurring about a month later in which he and defendant robbed A to Z Jewelry store. On 2 August 2006, Mr. Jordan's girlfriend, Lucille Simmons, and defendant picked up Mr. Jordan from his workplace in the same Ford Contour, and drove to the jewelry store, intending to rob it. The door to the store was locked, so Lucille approached the door and a sales clerk opened the store. Not long after that, Mr. Jordan and defendant entered the store with the same black duffle bag used in the Wilco-Hess robbery. Mr. Jordan put on a hat and sunglasses to disguise himself. He used a hammer from the store to break the glass case and he and defendant took jewelry from the case and put it in the bag. They also took a tape from the security camera in the store. After the robbery, they went back to Mr. Jordan's apartment to divide the money and jewelry between the three of them.
Defendant did not present any evidence. The trial court instructed the jury on common law robbery and robbery with a dangerous weapon, and gave a limited instruction with regard to the testimony about the August 2006 jewelry store robbery. The jury returned a verdict of guilty of robbery with a dangerous weapon. The trial court entered judgment, determined defendant to be a prior record level IV offender, and sentenced defendant to an active term of a minimum of 115 months to a maximum of 147 months. From the judgment entered, defendant appeals.
Defendant argues the trial court erred in admitting evidence under Rule 404(b) that defendant committed a similar robbery, offered by the State to show defendant's identity and the existence of a common plan and preparation of the offense charged. Defendant contends there were insufficient similarities between the two crimes to justify admission of the second one and that any similarities are superficial and not distinctive enough to distinguish between any number of small-store robberies which might occur in a similar fashion. He also argues that the evidence was highly prejudicial given the lack of evidence regarding defendant's identity as the perpetrator of the Wilco-Hess robbery. We do not agree.
Rule 404(b) of the North Carolina Rules of Evidence provides:
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). 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) (citing 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. Gen. Stat. § 8C-1, Rule 403 (2007). The decision of a trial court to admit or exclude evidence of prior bad acts will not be overturned absent an abuse of discretion. State v. Carrilo, 149 N.C. App. 543, 551, 562 S.E.2d 47, 52 (2002) (citations omitted). 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 reasoned decision." State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
We first 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 trial court found the following similarities between the two incidents: (1) the crimes occurred in close proximity to each other, within three miles; (2) the crimes occurred close in time to each other, within approximately a month; (3) both crimes involved the participation of defendant and James Jordan; (4) in both cases goods and money were stolen; (5) the same or similar black duffle bag was used in both crimes to carry away the money and goods; (6) defendant and Mr. Jordan used the same car and in the same manner in both instances; and (7) they went back to Mr. Jordan's apartment in both cases to divide the money and goods.
We find the similarities are sufficient to show a common plan in how the two robberies were executed. Our state law does not require similarities between separate crimes or wrongful acts to be "`unique and bizarre'" in order to be admissible under Rule 404(b). State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991) (citation omitted). Instead, "the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and the later acts." Id. (emphasis in original). Here, enough similarities exist such as to support a reasonable inference that defendant committed both crimes as part of a common plan or scheme. Therefore, we conclude the trial court did not abuse its discretion in deciding to admit the evidence of the jewelry store robbery.
Further, we note that the trial court gave a limiting instruction to the jury, that the jury could only consider the evidence of the jewelry store robbery as evidence of the identity of the person who committed the Wilco-Hess robbery, and as evidence that defendant had a plan or scheme in mind with regard to the Wilco-Hess robbery. Such an instruction works to minimize 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)(2008).
No error.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).