State v. Fielder, 88 N.C. App. 463

State v. Fielder

88 N.C. App. 463 | N.C. Ct. App. | 1988

JOHNSON, Judge.

Defendant’s appeal presents one issue for this court’s determination, to wit: whether the trial court properly allowed evidence that defendant had been observed upon the scene of an illegal drug transaction, other than the one for which she was charged, as an “identity” exception to the N.C.R. Evid. 404(b).

Defendant objects to the introduction of evidence at trial to the effect that on 24 April 1986 when officers went to the defendant’s admitted residence, 613 Key Street Apartment 8, to purchase controlled substances from a black male known as “Slim,” *466Officer Givens saw the defendant inside the apartment. Defendant contends that this evidence strongly implies that an illegal drug transaction took place in which defendant was involved, and was introduced contrary to the prohibition delineated in N.C.R. Evid. 404(b), against inadmissible character evidence.

N.C.R. Evid. 404(b) states:

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.

We note at the outset that we are not convinced that the challenged testimony has been properly categorized by the defendant as a “crime, wrong, or act” as contemplated by this evidentiary rule. Our review of the question presented on appeal reveals that defendant challenges the introduction of testimony by Officer Givens that while she was attempting to make an undercover purchase of controlled substances from another individual, she merely saw the defendant inside the apartment where the transaction was to occur. We also note that defendant concedes in her brief that the contested testimony “may have been relevant to support Givens’ identification of defendant as the perpetrator of the offense committed.” The crux of her argument is that the evidence admitted exceeded that which was necessary and “prejudiced defendant by raising an inference that she had committed a similar crime in the past.” We do not agree.

Although the defendant does not so explicitly state, her argument is based primarily upon N.C.R. Evid. 403 rather than N.C.R. Evid. 404(b). N.C.R. Evid. 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, . . .” We hold that the trial court acted well within its discretion when it allowed the testimony. N.C.R. Evid. 403 is identical to its federal counterpart which has been interpreted to the extent that the decision to exclude evidence under this rule rests solely in the discretion of the trial court. State v. Mason, 315 N.C. 724, 340 S.E. 2d 430 (1986), citing United States v. MacDonald, 688 F. 2d 224 (4th Cir. 1982).

*467In the case sub judice, we agree with the trial court’s decision that the probative value of the contested testimony, which was necessary to establish defendant’s positive identification, was not substantially outweighed by the danger of unfair prejudice, i.e. that the jury could possibly infer that defendant could have been involved in a similar crime. Any inferences which may have resulted therefrom were merely unfortunate.

In order to entertain defendant’s appeal as presented, we must first embrace the notion that mere presence for which no charge was levied or accusation made must be construed as a “crime, wrong, or an act” as contemplated in N.C.R. Evid. 404(b). Since there was no allegation that a crime was committed, nor any allegation that an affirmative act was performed by the defendant, we must classify the defendant’s presence at the scene of the proposed drug transaction on 24 April 1986 as a wrong, in order to properly consider defendant’s appeal.

The State contends that evidence of this “wrong” was not introduced to show conformity, but was used to establish the defendant’s positive identification as the person who sold controlled substances to Officer Givens on 7 May 1986. We find this contention tenable in light of the fact that the 7 May 1986 transaction was complete in a period of about five minutes during which time Officer Givens only had about three minutes to observe the defendant. It is therefore believable that further evidence could have been required to support a positive identification of defendant as the seller of the controlled substances.

Defendant relies upon both State v. Thomas, 310 N.C. 369, 312 S.E. 2d 458 (1984); and State v. Moore, 309 N.C. 102, 305 S.E. 2d 542 (1983), in order to support her contention that “in order for evidence to be admissible under the identity exception the circumstances of the two crimes must be such as to tend to show that the crime charged and the other offense were committed by the same person.” In fact, this contention lends greater credence to our view that the challenged testimony is not the sort contemplated in N.C.R. Evid. 404(b). Defendant is quite correct in stating that there exists no “logical connection of similarity between the two crimes necessary for use of the other crime to prove identity.” Again, we emphasize that we do not have two crimes which may be compared as in Thomas and Moore. What *468we have is one incident in which defendant was performing affirmative acts, and one opportunity for observing defendant’s physical person. We are not faced with the task of considering the facts of the crime charged and another crime in order to glean enough similarities between the two to establish a common actor. We are merely faced with the crime charged and defendant’s presence at the same location on another occasion when Officer Givens had an opportunity to observe defendant. Officer Givens merely had two opportunities to observe the defendant, and needed both to establish a positive identification.

We therefore find defendant’s contention that her case was prejudiced by the introduction of the challenged testimony merit-less, and affirm the decision rendered by the trial court.

No error.

Judges BECTON and PARKER concur.