108 N.C. App. 117 | N.C. Ct. App. | 1992
Defendant appeals from a judgment entered 5 April 1991, which judgment is based on a jury verdict convicting defendant of robbery with a dangerous weapon, N.C.G.S. § 14-87 (1986).
The evidence presented by the State established that on the evening of 28 December 1988, defendant and Andrew Hyde (Hyde), along with two other men, were driving around the Joppa Oaks area of Hillsborough, North Carolina. They discussed the possibility of robbing Chris’s Truck Stop on Highway 86, but decided against it because the truck stop was too crowded. The group instead decided to rob the adjacent Schrift’s Food Mart, a business which, according to Hyde’s testimony, defendant and Hyde had unsuccessfully attempted to break into three weeks earlier by chopping their way through the roof of the búilding with an ax.
Defendant drove into the parking lot of Chris’s Truck Stop and parked beside a dumpster. Hyde, armed with a .22 caliber rifle with a broken-off stock and wearing a ski mask, entered the store. Buck Owens (Owens), the clerk on duty at the time, testified that the robber pointed the gun at him and demanded money. Owens put approximately $500.00 into a paper bag and gave it to Hyde, who ran out of the store and to the car. Defendant then took the money from Hyde and drove back to Durham where the men lived.
Defendant and Hyde were indicted on the charge of robbery with a dangerous weapon. Defendant pleaded not guilty, but Hyde agreed to plead guilty and testify against defendant in exchange for a twenty-year sentence. At trial, the court considered the admissibility of numerous armed robberies and break-ins allegedly committed by defendant and Hyde prior to the robbery at Schrift’s. The trial court determined that the probative value of the majority of these prior acts would be substantially outweighed by the danger of unfair prejudice to defendant, and ruled such evidence inadmissible. However, the trial court ruled admissible, over defendant’s objection, testimony regarding the breaking and entering on 8
The trial court also allowed Hyde to testify that immediately after breaking into Smith’s residence, defendant and Hyde engaged in a conversation regarding the commission of robbery. Hyde testified that defendant stated that he was tired of stealing and having to “spend all day trying to find somebody to buy” the stolen items, and that the men could get cash more easily by robbing a store. Defendant reasoned that, since the men had recovered a gun from the Alma Smith break-in, they should use it to commit armed robbery. According to Hyde, defendant explained how to commit such a robbery, and convinced Hyde that defendant should drive the getaway car and Hyde should actually enter the store.
Defendant and Hyde decided to rob Ed’s Food Mart, which is located approximately two miles from Schrift’s Food Mart. At the last minute, however, Hyde, who had been drinking heavily, backed out. The men decided instead to rob Ray’s Easy Shop, which was located on the other side of Chris’s Truck Stop. Defendant found a white plastic bag, put it over Hyde’s head, tore out holes for Hyde’s eyes and mouth, and sent Hyde into the store with the .22 caliber rifle stolen from Alma Smith’s residence while defendant waited outside in the car. During Hyde’s testimony, the trial court allowed, over defendant’s objection, the State’s use of two photographs for illustrative purposes. The clerk on duty at Ray’s Easy Shop at the time of the robbery, Joe Teston, testified that at approximately 9:30 p.m. on 8 December 1988, a man with a white plastic bag over his head and a .22 caliber rifle robbed the store of $755.00. After the robbery, Hyde ran back to the car, gave defendant the money, and defendant drove away. Again, defendant objected to this testimony and the trial court instructed the jury that this testimony was admitted solely to show “in the mind of [defendant] a plan, a scheme, a system, or design involving the crime charged.”
Defendant presented no evidence at trial. He was convicted of one count of robbery with a dangerous weapon, and the trial court imposed a sentence of twenty years, to be served consecutively with a 120-year sentence imposed on defendant for three convictions in other cases.
The issues presented are whether (I) evidence of defendant’s alleged participation in (A) a conversation with Hyde regarding their intended commission of robberies in Hillsborough, (B) the prior uncharged robbery of Ray’s Easy Shop, and (C) the prior attempted break-in of Schrift’s Food Mart, is admissible to show on defendant’s part a plan, scheme, system, or design involving the robbery with which defendant is charged; (II) evidence of defendant’s alleged participation in (A) the break-in of Alma Smith’s residence, and (B) the police chase in Durham, is relevant to any issue in the case; and (III) the trial court abused its discretion by allowing the State to use photographs to illustrate Hyde’s testimony regarding the prior uncharged robbery of Ray’s Easy Shop.
I
Evidence of a defendant’s other crimes, wrongs, or acts is admissible only if such evidence (1) is offered for a proper purpose, see N.C.G.S. § 8C-1, Rule 404(b) (1992); (2) is relevant, see N.C.G.S. § 8C-1, Rules 401 and 104(b) (1992); (3) has probative value which is not substantially outweighed by the danger of unfair prejudice to the defendant, see N.C.G.S. § 8C-1, Rule 403 (1992); and (4) if requested, is coupled with a limiting instruction, see N.C.G.S.
A
Defendant argues that the trial court committed reversible error by allowing Hyde to testify that, prior to their actual commission of the robbery of Schrift’s Food Mart, with which defendant is charged, defendant suggested to Hyde that they commit armed robberies in Hillsborough in order to obtain money. According to defendant, this evidence “served only to prove that the character of defendant is such that he acted in conformity on the occasion in question.” The State, on the other hand, contends that evidence of the conversation between defendant and Hyde shows on the part of defendant a plan to commit armed robberies in a particular area of Hillsborough.
At the outset we note that evidence of defendant’s prior conversation with Hyde constitutes evidence of another “crime, wrong, or act,” as those terms are used under Rule 404(b). Other crimes evidence is not limited to evidence of other criminal or unlawful acts on the part of the defendant, but also includes any extrinsic conduct or misconduct by the defendant which is relevant to an issue in the case other than to show that the defendant has the propensity for the type of conduct with which he is charged. See State v. Morgan, 315 N.C. 626, 636-37, 340 S.E.2d 84, 91 (1986) (discussing the admissibility of the “extrinsic conduct” of a criminal defendant under Rule 404(b)). Accordingly, evidence of defendant’s alleged conversation with Hyde in which defendant, among other things, discussed the advantages of committing armed robbery over stealing and selling property as well as the manner in which it could be done, constitutes Rule 404(b) evidence of another “crime, wrong, or act” on the part of defendant.
B
Defendant argues that the trial court erroneously admitted evidence of defendant’s participation in the robbery of Ray’s Easy Shop because the sole relevance of such evidence was to show that defendant had the propensity to commit armed robbery. The State contends that the evidence is admissible to show a plan or scheme on defendant’s part to commit armed robberies in the Joppa Oaks area of Hillsborough.
For the same reasons that evidence of defendant’s conversation with Hyde was admitted for a proper purpose and is relevant,
C
Defendant argues that evidence of his prior attempted break-in of Schrift’s Food Mart impermissibly showed only that he had the propensity to commit the robbery of Schrift’s, with which he is charged. Again, the State argues that such evidence shows on defendant’s part a plan to rob Schrift’s.
Evidence of the attempted break-in of Schrift’s three weeks prior to the actual robbery of the store, for the same reasons discussed above, was admitted for a proper purpose and is relevant. Furthermore, its high probative value can be measured by the fact that the attempted break-in occurred just three weeks prior to the actual robbery, and was of the same business which defendant eventually robbed. We discern no abuse of discretion on the part of the trial court in determining that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice to defendant. And although no limiting instruction was given with regard to this particular portion of Hyde’s -testimony, there is no evidence in the record that one was requested. See Haskins, 104 N.C. App. at 679, 411 S.E.2d at 380 (limiting instruction for evidence admitted under Rule 404(b) required only if requested by defendant).
II
Defendant argues that evidence of his participation in the break-in of Alma Smith’s residence on 8 December 1988, and of his participation in a police chase on 21 December 1988, is irrelevant and therefore inadmissible. Relevant evidence is defined as “evidence having any 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.G.S. § 8C-1, Rule 401 (1992). All relevant evidence is admissible,
A
During the break-in of Alma Smith’s residence, defendant, Hyde, and defendant’s brother recovered, among other things, a .22 caliber rifle. The evidence at trial established that a .22 caliber rifle was used during the commission of the robbery of Schrift’s Food Mart. Thus, the evidence of which defendant complains tends to make more probable the fact that defendant participated in the robbery of Schrift’s because it shows that he had recently gained access to the same type of weapon that was used in the robbery. Accordingly, the evidence is relevant.
B
Hyde testified that, during the high-speed chase involving himself and defendant and the police, Hyde threw from the car window the .22 caliber rifle which defendant and Hyde had stolen from Alma Smith’s residence. According to Hyde, the gun apparently struck a telephone pole, because when Hyde went back to the scene to retrieve the gun, its stock had broken off. At trial, the clerk on duty at Schrift’s on the night of the robbery testified that the gunman used a .22 caliber rifle with a “sawed-off” stock. Thus, the evidence of the chase, during which the gun was broken, tends to make more probable defendant’s participation in the robbery of Schrift’s because it shows that defendant had access to a gun with the same features as the one used during the commission of the robbery with which defendant is charged.
Ill
Defendant argues that the trial court erroneously admitted into evidence two photographs, which Hyde used to illustrate his testimony regarding the robbery of Ray’s Easy Shop on 8 December 1988 in which he and defendant participated. One of the photographs depicts the entrance ramp to Interstate 85, where defendant parked the getaway car during the robbery. The other photograph depicts the layout of the store. According to defendant, the photographs served only to prejudice the jury against him because Hyde used the photographs “to needlessly repeat testimony which tended to show that defendant frequently exhibited criminal behavior.”
In the instant case, as previously discussed, the trial court properly allowed Hyde’s testimony regarding defendant’s participation in the robbery of Ray’s Easy Shop, and we discern no abuse of discretion in the court’s decision to allow the State to use two rather bland photographs to illustrate Hyde’s testimony.
No error.
