State v. Richardson

395 S.E.2d 143, 100 N.C. App. 240, 1990 N.C. App. LEXIS 921
Court of Appeals of North Carolina·Decided September 4, 1990·No. 896SC1130·Published·Cited by 10 cases

Opinion

WELLS, Judge.

Defendant first contends that the trial court erred in admitting testimony that she had committed several other alleged criminal offenses. Defendant’s contention is that the evidence of these other alleged crimes, wrongs, or acts should have been excluded pursuant to N.C. Gen. Stat. § 8C-1, Rule 404 of the N.C. Rules of Evidence (1988).

After a voir dire hearing, Betty Avent was allowed to testify that in the ten-month period preceding the burning of her mobile home, defendant had encouraged Whitaker and Davis to commit crimes for defendant’s benefit and had provided transportation for Davis in order that the unlawful acts could be carried out. Specifically, defendant objects to Avent’s testimony that Davis shoplifted from stores in Rocky Mount after being told to do so by defendant; that Davis —again at defendant’s urging — spray painted the car of a motel clerk with whom defendant had had a disagreement; and that defendant had asked Whitaker to burn her [defendant’s] mobile home because she did not want it to be repossessed.

*244 Under Rule 404(b) “[ejvidence 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.” G.S. § 8C-1, Rule 404(b). However, such evidence may be admissible for other purposes, including “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Id. Evidence of other crimes is not limited to the exceptions set out in the rule. State v. Weaver, 318 N.C. 400, 348 S.E.2d 791 (1986); see also State v. Rosier, 322 N.C. App. 826, 370 S.E.2d 359 (1988). (Evidence of other offenses showing common scheme or plan to commit the offense with which defendant was charged held relevant and admissible pursuant to Rule 404(b).)

Recent cases decided by our Supreme Court have made clear that since the enactment of the North Carolina Rules of Evidence, effective 1 July 1984, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused. See, e.g., State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), and cases cited therein. Even though evidence may tend to show other crimes, wrongs, or acts by defendant and his propensity to commit them, it is nevertheless admissible so long as it is also relevant for some other purpose. Id. (citations omitted). Relevant evidence is any evidence which has a 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. N.C. Gen. Stat. § 8C-1, Rule 401 of the N.C. Rules of Evidence (1988). When incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of Rule 403 of the N.C. Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 403 of the N.C. Rules of Evidence (1988); State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987). In the present case the trial court concluded that the evidence was admissible under Rule 404(b) for the purpose of showing defendant’s intent, plan, design, or mode of operation and that its probative value outweighed its prejudicial effect.

Defendant denied asking Davis and Whitaker to burn Avent’s trailer; therefore, evidence that defendant had, on previous occasions, solicited or attempted to solicit Davis or Whitaker to commit crimes was relevant and admissible as probative of a common plan or design (scheme) on the part of defendant to solicit others to do unlawful acts for her benefit. These incidents are very similar *245 to the offenses with which defendant is charged in that the same youths were solicited to do some act that defendant wanted carried out and, on the occasions when the acts were carried out, defendant provided necessary transportation. Additionally, all of the events took place within a ten-month period; therefore, remoteness is not an issue. Under these circumstances we hold that the evidence was sufficiently similar to justify its admission as proof of a common plan or scheme.

Finally, defendant has not shown that the evidence should have been excluded under the balancing test of Rule 403. The trial court specifically admitted evidence of the alleged prior offenses for the limited purpose of considering whether there existed in defendant’s mind a plan, scheme or design involving the crimes charged. The jury was so instructed prior to beginning their deliberations. This argument is overruled.

Defendant also contends that Avent should not have been allowed to testify that she [Avent] quit being friends with defendant when defendant said she wanted to find someone to kill her [defendant’s] husband. We disagree. Avent’s testimony that defendant planned to have her own husband killed was relevant to show the relationship between defendant and Avent and was also admissible as probative of defendant’s possible motive in soliciting the burning of Avent’s mobile home. The State’s theory was that defendant solicited Whitaker and Davis to burn Avent’s mobile home because of a dispute that had arisen between defendant and Avent. Evidence showing how the relationship between defendant and Avent deteriorated from one of friendship and confidence sharing to one of animosity was therefore relevant and admissible.

Defendant also contends that testimony from two other witnesses regarding other alleged crimes, wrongs, or acts was improperly admitted. We have reviewed these assignments and find them to be without merit. On two separate occasions testimony concerning defendant’s plan to have her own mobile home burned— either by Whitaker or two other youths — was elicited by the State. Both times this testimony was offered to explain or rebut evidence previously elicited by defendant. It is well settled that when one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such later evidence would be in *246 competent or irrelevant had it been offered initially. State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981).

In her next assignment of error, defendant contends that the trial court erroneously admitted into evidence oral out-of-court statements made by Davis to two police detectives. Defendant argues that the testimony was not admissible as corroborative evidence because it went beyond Davis’ earlier testimony. We deal first with the testimony of Detective Wardie Vincent.

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State v. Richardson, 395 S.E.2d 143, 100 N.C. App. 240, 1990 N.C. App. LEXIS 921 (N.C. Ct. App. 1990).

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