Medina v. Town and Country Ford, Inc.

355 S.E.2d 831, 85 N.C. App. 650, 1987 N.C. App. LEXIS 2652
CourtCourt of Appeals of North Carolina
DecidedMay 19, 1987
Docket8626SC1103
StatusPublished
Cited by7 cases

This text of 355 S.E.2d 831 (Medina v. Town and Country Ford, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Medina v. Town and Country Ford, Inc., 355 S.E.2d 831, 85 N.C. App. 650, 1987 N.C. App. LEXIS 2652 (N.C. Ct. App. 1987).

Opinions

WELLS, Judge.

Defendant contends the court erred in admitting the testimony of Ms. Sheree King “as to (a) a prior transaction she had with Town and Country Ford; and (b) as to her knowledge of an investigation and hearing conducted by the North Carolina Department of Motor Vehicles of . . . Town and Country Ford arising out of Ms. King’s transaction.” We disagree.

After conducting a voir dire examination of Ms. King, the court admitted her testimony for the limited purpose of showing intent, plan, knowledge or absence of mistake and not as substantive evidence. The court further instructed the jury to consider her testimony for this limited purpose only.

Ms. King testified about a transaction she had with defendant in August 1981, approximately fourteen months prior to the events involving plaintiff. In this transaction, Ms. King purchased a car from defendant. After agreeing to the sales price, Ms. King made a $3,000 cash downpayment on the car, signed a buyer’s order and invoice and executed other sales-related documents. She [655]*655then left the dealership with the car. Shortly thereafter on the same day, Ms. King received a telephone call from the dealership telling her to return the car as it had already been sold to another customer. Ms. King refused to return the car. The morning after the sale, Ms. King discovered that the car was missing. When she called the police to report the car as being stolen she was advised that it had been repossessed for nonpayment by defendant at 6:00 a.m. that morning. Ms. King never re-obtained the car. On 18 August, Ms. King received a check for $2,851.10 representing the balance of her downpayment less a recovery fee of $148.90 pocketed by defendant.

Ms. King further testified that she appeared as a witness for the State at a hearing conducted by the North Carolina Department of Motor Vehicles (DMV) concerning defendant’s withholding of the $148.90 from the $3,000 downpayment. According to Ms. King, she received the $148.90 two days after she “received the summons to appear at the hearing in Raleigh.”

We hold that Ms. King’s testimony was admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b) of the North Carolina Rules of Evidence. Rule 404(b) provides:

(b) Other crimes, wrongs, or acts. — 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.

“Rule 404 is virtually identical to Federal Rule of Evidence 404, the legislative history of which tends to favor admissibility.” State v. Wortham, 80 N.C. App. 54, 341 S.E. 2d 76, disc. rev. allowed, 317 N.C. 341, 346 S.E. 2d 148 (1986). Under the federal rule, similar occurrence evidence, like the kind offered here through the testimony of Ms. King, has generally been held admissible. See Kerr v. First Commodity Corp. of Boston, 735 F. 2d 281 (8th Cir. 1984) and Jay Edwards, Inc. v. New England Toyota Distributor, 708 F. 2d 814 (1st Cir.), cert. denied, 464 U.S. 894 (1983).

We hold that the similar occurrence evidence admitted here was probative of defendant’s motive, intent, absence of mistake [656]*656and possible bad faith in its dealings with plaintiff and did not simply portray an unrelated “bad act” by defendant. See id. As such, the evidence was relevant to the issues of unfair and deceptive trade practices, malicious prosecution and punitive damages, and it thus was properly admitted under Rule 404(b). See State v. Morgan, 315 N.C. 626, 340 S.E. 2d 84 (1986). The court “was entitled to conclude, without abusing its discretion, that the permissible probative value of the evidence outweighed any prejudice [under Rule 403].” Jay Edwards, Inc., supra. See also Commentary to Rule 404(b). Further, the court gave the jury proper limiting instructions with the admission of this evidence, thereby limiting the potential for unfair prejudice. Kerr, supra. Accordingly, we hold that the court did not err in admitting the testimony of Ms. King regarding her prior transaction with defendant.

Defendant also contends that the court erred in permitting Ms. King to refer to her appearance as a witness at the DMV hearing. Ms. King simply testified that (1) she appeared as a witness at the hearing, (2) the hearing concerned defendant’s withholding of a $148.90 recovery fee, and (3) two days after she was called to appear at the hearing she received the money. Ms. King did not testify about the actual hearing proceedings or its final disposition. We hold that it was well within the court’s discretion under Rules 403 and 404 to permit Ms. King to refer to her participation as a witness at the DMV hearing as part of her explanation of the circumstances surrounding the return of the $148.90 recovery fee. See Commentary to Rule 404(b).

Defendant further contends that “the admission of the [DMV] Order . . . ‘only to corroborate that Ms. King was present at the hearing . . .’ ” was error in that “the Order represented additional collateral material on a matter not in issue.” However, after carefully reviewing the record, we hold that the events at trial do not support defendant’s assertions regarding the admission and improper use of this evidence. These contentions are rejected. We also reject defendant’s contention that a subsequent comment by the trial court about certain other evidence related to Ms. King’s testimony constituted reversible error.

Defendant contends the court erred in permitting counsel for plaintiff to cross-examine defendant’s witness, William Hanna, Jr., about a 26 May 1982 Order entered by the DMV in the Sheree King case. We disagree.

[657]*657In general, Rule 611(b) of the North Carolina Rules of Evidence provides that “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Further,

The primary purpose of impeachment is to reduce or discount the credibility of a witness for the purpose of inducing the jury to give less weight to his testimony in arriving at the ultimate facts of the case. . . . Any circumstance tending to show a defect in the witness’s perception, memory, narration or veracity is relevant to this purpose.

State v. Looney, 294 N.C. 1, 240 S.E. 2d 612 (1978), quoting Stansbury, North Carolina Evidence, Brandis Rev. § 38.

Mr. Hanna testified on cross-examination that he was the finance manager of defendant and that he had knowledge of its practices and procedures. After conducting a voir dire examination, the court allowed counsel for plaintiff, over the objection of defendant, to impeach Mr. Hanna’s credibility in this respect by asking him the following question:

Q. Mr. Hanna, I will ask you to state whether or not you know of the Order that was entered by the North Carolina Commissioner of Motor Vehicles on the 26th day of May 1982 . . .

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Medina v. Town and Country Ford, Inc.
355 S.E.2d 831 (Court of Appeals of North Carolina, 1987)

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Bluebook (online)
355 S.E.2d 831, 85 N.C. App. 650, 1987 N.C. App. LEXIS 2652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medina-v-town-and-country-ford-inc-ncctapp-1987.