State v. Blackwell9/7/2004
dant's trial or sentence. I vote to sustain defendant's conviction.
I. Rule 404(b) Evidence
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) (2003). "[T]his 'list of permissible purposes for admission of "other crimes" is notexclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.'" State v. Rich, 351 N.C. 386, 399-400, 527 S.E.2d 299, 306, aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000) (emphasis supplied) (citing State v. Hipps, 348 N.C. 377, 404, 501 S.E.2d 625, 641 (1998), cert. denied, 525 U.S. 1180, 143 L.Ed. 2d 114 (1999)) (quoting State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53, cert. denied, 516 U.S. 994, 133 L.Ed. 2d 436 (1995)). Rule 404(b) is "a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant . . . ." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
II. Admission of Prior Convictions
Citing State v. Wilkerson, the majority's opinion presumes without holding that the admission of defendant's prior convictions to show malice was error. The majority's opinion states, "even if it was error to allow it, Defendant was not prejudiced since the State presented sufficient other evidence from which the jury could infer malice."
The Supreme Court's per curiam opinion in State v. Wilkerson did not adopt a per se or categorical rule that a defendant's plea of guilty to or conviction of "other crimes, wrongs, or acts" can not be admitted. 356 N.C. 418, 571 S.E.2d 583 (per curiam) (adopting dissent of Wynn, J., 148 N.C. App. 310, 318, 559 S.E.2d 5, 10 (2002)). Defendant's admission, guilty plea, or conviction is no longer a "bare fact" but, as here, corroborates other underlying evidence of "other crimes, wrongs, or acts" allowed byRule 404(b).
Underlying evidence includes not only the testimony of other witnesses to defendant's crimes or bad acts, but also whether defendant admitted, pleaded guilty to, or was convicted of "other crimes, wrongs, or acts." This evidence is relevant and admissible under Rule 404(b) if not unduly prejudicial or subject to other exclusion under Rule 403. N.C. Gen. Stat. § 8C-1, Rule 404(b); N.C. Gen. Stat. § 8C-1, Rule 403 (2003).
The State's tender of Rule 404(b) evidence remains subject to the balancing test required by Rule 403. The trial court must apply the balancing test if the underlying evidence of prior crimes is tendered by the State to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." N.C. Gen. Stat. § 8C-1, Rule 404(b); see also N.C. Gen. Stat. § 8C-1, Rule 403. The evidence must be excluded if solely admitted to "prove the character of a person in order to show that he acted in conformity therewith," is unduly prejudicial, or if temporal proximity is lacking. N.C. Gen. Stat. § 8C-1, Rule 404(b); N.C. Gen. Stat. § 8C-1, Rule 403. The trial court must instruct the jury that this evidence is admitted only for the purposes allowed under Rule 404(b) and cannot be considered to prove the defendant committed the crimes at issue. N.C.P.I.-- Crim. 104-15 (2003).
Our Supreme Court and this Court have long and repeatedly held that "evidence of prior convictions is admissible
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