Opinion
No. COA08-947.
Filed August 4, 2009.
Appeal by defendant from judgments entered 17 October 2006 by Judge C. Philip Ginn in Mitchell County Superior Court. Heard in the Court of Appeals 24 February 2009.
Attorney General Roy Cooper, by Assistant Attorney General Edwin Lee Gavin II, for the State. Anne Bleyman for defendant-appellant.
Defendant Billy J. Trombley appeals his convictions of two counts of breaking and entering a motor vehicle, one count of misdemeanor larceny, and having attained habitual felon status. Defendant primarily contends on appeal that the trial court erred in denying his motion to dismiss the charges of breaking and entering a motor vehicle because the State failed to present any evidence that the vehicles contained any "other thing of value" as required by N.C. Gen. Stat. § 14-56 (2007). Since the only items of value identified by the State were intrinsic parts of the motor vehicle, we agree the trial court should have granted the motion to dismiss the charges of breaking and entering a motor vehicle and, therefore, reverse those convictions. Because defendant's guilty plea to being a habitual felon was predicated on those felony convictions, we must also vacate that plea. We find the remainder of defendant's arguments unpersuasive and, therefore, uphold defendant's conviction of misdemeanor larceny.
Facts
The evidence at trial tended to establish the following facts. At around 9:00 p.m. on 2 March 2006, Luchis Appling IV was visiting Christy Tipton at her home on Altapass Highway in Spruce Pine, North Carolina. Appling and Tipton saw a man — later identified as defendant — walking with a backpack down the road and into the parking lot of the Spruce Pine Pharmacy. When a car drove by, defendant avoided being seen by ducking behind a parked Dodge pickup truck. After the car had passed, defendant got into the Dodge pickup truck and sat inside for several minutes. The truck was owned by Jeff Proffitt, an employee at the pharmacy.
Defendant then attempted to get into several other cars before entering a Cadillac El Dorado at the rear of the parking lot. Appling called 911, and Lieutenant James Ramsey with the Spruce Pine Police Department responded. When Lt. Ramsey arrived, he saw that the driver's side door of the Cadillac was open and approached the vehicle. Lt. Ramsey first walked up to the front passenger's side and saw defendant lying across the front seat of the car, with his legs sticking out of the driver's side door. The officer saw defendant holding the car radio's faceplate in his left hand and saw defendant's right hand under the dashboard.
Lt. Ramsey then walked around to the driver's side and ordered defendant to get out of the car. By the time Lt. Ramsey got around to the driver's side of the car, defendant had dropped the faceplate, and it was lying on the floorboard with the radio knobs. Lt. Ramsey frisked and arrested defendant. He then searched defendant's backpack, finding it empty.
Defendant was taken into custody and informed of his rights. During questioning, defendant stated that he knew he "wasn't supposed to be in that vehicle" and that when he saw the police he tried to lie down to hide. The Cadillac was searched and the officers found a screwdriver in the ashtray and the radio's faceplate and knobs were on the floorboard on the driver's side. No fingerprints were identified.
Defendant was indicted for two counts of breaking and entering a motor vehicle, one count of misdemeanor larceny, and having attained habitual felon status. At the close of the State's evidence, defendant moved to dismiss all charges against him for insufficient evidence; the trial court denied that motion. Defendant testified at trial that he left his cousin's house on 2 March 2006 at about 7:45 p.m. and was walking home to his mother's house. He walked along the railroad tracks to avoid "contact with the police department." He got into the Cadillac because he wanted to rest on the way to his mother's house. Defendant explained that he saw the radio's faceplate on the driver's seat, so he picked it up and placed it on the floorboard to avoid sitting on it. He also testified that he did not pull the knobs off the radio or remove the faceplate. Defendant claimed that he did not see a screwdriver in the car's ashtray or radio knobs on the floorboard. He denied taking or intending to take anything from the car. Defendant renewed his motion to dismiss the charges at the close of all the evidence, and, again, his motion was denied.
After the jury convicted defendant of all charges, he pled guilty to being a habitual felon. The trial court consolidated the misdemeanor larceny charge with one of the counts of breaking and entering a motor vehicle and sentenced defendant to two concurrent presumptive-range terms of 120 to 153 months imprisonment. On 4 October 2007, defendant petitioned this Court for a writ of certiorari to permit review of his convictions. This Court granted certiorari on 17 October 2007.
I
Defendant first argues that the trial court erred in denying his motion to dismiss both charges of breaking and entering a motor vehicle due to insufficient evidence. A defendant's motion to dismiss should be denied if there is substantial evidence: (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator of the offense. State v. Scott, 356 N. C. 591, 595, 573 S. E.2d 866, 868 (2002). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N. C. 71, 78-79, 265 S. E.2d 164, 169 (1980). "In ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State." State v. Kemmerlin, 356 N. C. 446, 473, 573 S. E.2d 870, 889 (2002). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N. C. 95, 99, 261 S. E.2d 114, 117 (1980).
N.C. Gen. Stat. § 14-56 provides in pertinent part:
If any person, with intent to commit any felony or larceny therein, breaks or enters any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind, containing any goods, wares, freight, or other thing of value, or, after having committed any felony or larceny therein, breaks out of any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind containing any goods, wares, freight, or other thing of value, that person is guilty of a Class I felony.
(Emphasis added.) The offense proscribed by the statute breaks down into five essential elements: "1) a breaking or entering 2) without consent 3) into any motor vehicle 4) containing goods, freight, or anything of value 5) with the intent to commit any felony or larceny therein." State v. Riggs, 100 N.C. App. 149, 155, 394 S. E.2d 670, 673 (1990), disc. review denied, 328 N. C. 96, 402 S. E.2d 425 (1991). Defendant challenges the sufficiency of the evidence relating to the fourth element only, contending that "[n]either of the two vehicles in question — a Dodge pickup truck of N.C. Gen. Stat. § 14-56." and a Cadillac car — contained anything of value for the purposes In State v. McLaughlin, 321 N. C. 267, 362 S. E.2d 280 (1987), the Supreme Court discussed the showing the State must make in order to prove the fourth element of N.C. Gen. Stat. § 14-56. In McLaughlin, 321 N. C. at 268, 362 S. E.2d at 281, the defendant was convicted of, among other things, breaking and entering a motor vehicle after taking the victim's car keys during the course of a burglary and driving off in the car. Although the Supreme Court observed that "even items of trivial value satisfy th[e] [fourth] element of the offense[,]" the Court was "constrained" to reverse the defendant's conviction because "[t]he record here . . . is devoid even of evidence that the victim's vehicle contained items of trivial value that belonged to the victim or to anyone else." Id. at 270, 362 S. E.2d at 282 (emphasis added). Thus, the McLaughlin Court held that the fourth element of the offense required evidence that the vehicle contained items of personal property separate from the motor vehicle itself. Id. at 271, 362 S. E.2d at 282.
This Court, in State v. Jackson, 162 N.C. App. 695, 592 S. E.2d 575 (2004), further considered the fourth element in light of the holding in McLaughlin. In arguing that this Court should uphold the conviction of breaking and entering a motor vehicle under N.C. Gen. Stat. § 14-56, the State in Jackson "contend[ed] that the accouterments of a vehicle's interior are of value to meet the McLaughlin requirement: seats, carpeting, visors, handles, knobs, cigarette lighters, and radios." 162 N.C. App. at 698, 592 S. E.2d at 577 (emphasis added). This Court, based on McLaughlin, rejected this contention, holding that N.C. Gen. Stat. § 14-56 "clearly requires that the larceny element of the breaking and entering pertain to objects within the vehicle, separate and distinct from the functioning vehicle." Jackson, 162 N.C. App. at 699, 592 S. E.2d at 577.
The Court reasoned that the language of the statute contemplated the items of value as being "akin to the cargo of the vehicle":
Adopting the State's reading of N.C. Gen. Stat. § 14-56, and specifically the fourth element of that offense, would render that element redundant and superfluous. Our Supreme Court has repeatedly held that "[i]t is a well settled principle of statutory construction that words of a statute are not to be deemed merely redundant if they can be reasonably [construed] so as to add something to the statute which is in harmony with its purpose." In Re Watson, 273 N. C. 629, 634, 161 S. E.2d 1, 6-7 (1968). The statute clearly requires that the larceny element of the breaking and entering pertain to objects within the vehicle, separate and distinct from the functioning vehicle. Our reading of the statute is supported by the North Carolina Legislature's definition of misdemeanor tampering with a vehicle that requires some purpose not necessarily having to do with a larceny. See N.C. Gen. Stat. § 20-107 (2003).
Id. at 698-99, 592 S. E.2d at 577-78.
In this case, with respect to the charge involving the Dodge pickup truck, the owner Jeff Proffitt testified that there was "[n]ot anything that [he] kn[ew] of" in the truck other than the original radio. The State makes no specific argument that it with regard to Jeff Proffitt's Dodge pickup truck (06 CRS 50157). presented sufficient evidence to support defendant's conviction The State instead focuses on the Cadillac El Dorado. The car's owner, Bill Proffitt, testified that the car's radio was the only thing of value he could remember being in the car, and that the radio was the original radio. The State, however, points to evidence that defendant removed the faceplate of the radio and contends that the facts in this case are "virtually identical" to those in State v. Britt, 187 N.C. App. 305, 652 S. E.2d 753, 2007 N.C. App. LEXIS 2341, 2007 WL 4106155 (Nov. 20, 2007) (unpublished), such that this Court should "accord precedential value to State v. Britt under N.C. R. App. P. 30(e)(3), and not State v. Jackson."
We note first that an unpublished decision of a prior panel of this Court cannot bind a subsequent panel. State v. Pritchard, 186 N.C. App. 128, 129, 649 S. E.2d 917, 918 (2007), disc. review denied, ___ N. C. ___, ___ S. E.2d ___, 2009 N. C. LEXIS 79 (Feb. 5, 2009). Rule 30(e)(3) of the Rules of Appellate Procedure permits citation to unpublished opinions when a party "`believes . . . there is no published opinion that would serve as well' as the unpublished opinion." State ex rel. Moore County Bd. of Educ. v. Pelletier, 168 N.C. App. 218, 222, 606 S. E.2d 907, 909 (2005) (quoting N. C.R. App. P. 30(e)(3)). Contrary to the State's urging, however, Rule 30(e)(3) does not permit this Court to refuse to give "precedential value" to a published opinion and rely instead on an unpublished opinion addressing the same issue.
In any event, Britt, which cited neither McLaughlin nor Jackson, is distinguishable from this case. In Britt, 2007 N.C. App. LEXIS 2341 at *5, 2007 WL 4106155 at *2, this Court held that a car stereo's detachable faceplate and books constituted "things of value" under N.C. Gen. Stat. § 14-56. The books themselves satisfy McLaughlin's "trivial value" test. See, e.g., State v. Goodman, 71 N.C. App. 343, 349-50, 322 S. E.2d 408, 413 (1984) (holding registration card and hubcap key were things of value), disc. review denied, 313 N. C. 333, 327 S. E.2d 894 (1985); State v. Kirkpatrick, 34 N.C. App. 452, 455, 238 S. E.2d 615, 617 (1977) (concluding C.B. radio was thing of value); State v. Quick, 20 N.C. App. 589, 591, 202 S. E.2d 299, 301 (1974) (holding papers, shoe bag, and cigarettes were "without question" valuable personal property).
Here, in contrast, we have neither books nor anything else of value found in the Cadillac or Dodge truck separate from the vehicles themselves. Bill Proffitt and Jeff Proffitt both testified that the only items of value in their respective vehicles were the original, factory-installed radios. The detachable stereo faceplate at issue in Britt and the radio faceplate in this case fall squarely within Jackson's holding that in order to be an item of value under the statute, the item cannot be an "inherent[] . . . part of the functioning vehicle." 162 N.C. App. at 698, 592 S. E.2d at 577. Only items "akin to the cargo of the vehicle" will suffice. Id. at 698-99, 592 S. E.2d at 577 (emphasis added).
The Jackson Court specifically held that a car's radio is not an item of value under the statute because it was simply a part of the car. Id. at 698-99, 592 S. E.2d at 577-78. Here, the radio faceplate removed from the Cadillac was an intrinsic part of the car. It cannot be considered personal property akin to the cargo in the vehicle. Based on McLaughlin and Jackson, the faceplate is not, therefore, an item of value for purposes of N.C. Gen. Stat. § 14-56.
The State attempts to distinguish Jackson on the ground that there was no evidence of asportation in that case. That contention represents a distinction without a difference since asportation is an essential element of larceny, but is not an element of breaking and entering a motor vehicle. Compare Kirkpatrick, 34 N.C. App. at 455, 238 S. E.2d at 617 ("[T]he language of G.S. 14-56 does not require the actual larceny of anything in order to convict of felonious breaking or entering. It is the breaking or entering with intent to commit larceny that is proscribed."), with State v. Perry, 305 N. C. 225, 234, 287 S. E.2d 810, 815 (1982) ("Simply put, proof of asportation is required for the larceny charge. . . ."). Either the motor vehicle contained items of value separate from the vehicle itself or it did not. Removing part of the car might support a conviction for misdemeanor tampering with a vehicle under N.C. Gen. Stat. § 20-107(a) (2007), but cannot create an item of value in the car that did not previously exist.
The State also relies upon Kirkpatrick, 34 N.C. App. at 456, 238 S. E.2d at 618, in which this Court upheld the defendant's conviction of breaking and entering a motor vehicle based on evidence that the defendant removed a C.B. radio from the victim's car. The State, in its brief, however, recognizes that "[t]he rulings in State v. Jackson and State v. Kirkpatrick establish a dichotomy between factory-installed and after-market equipment." Because this case involves factory-installed equipment, Kirkpatrick is, necessarily, not controlling on this issue.
The State argues further that factory-installed equipment "can add thousands of dollars to the price of a new car." Adopting the State's position would, however, require overruling Jackson, which this Court cannot do. In re Civil Penalty, 324 N. C. 373, 384, 379 S. E.2d 30, 37 (1989) (explaining that a subsequent panel of this Court cannot overrule a prior panel).
Because we reverse both of defendant's convictions for breaking and entering a motor vehicle, we must also vacate defendant's habitual felon guilty plea, which is predicated solely on those two felony convictions. See Jackson, 162 N.C. App. at 700, 592 S. E.2d at 578 (vacating habitual felon guilty plea where State failed to present substantial evidence of underlying felony offense).
II
Defendant next argues that the trial court should have dismissed the misdemeanor larceny charge due to a variance between the allegations in the indictment and the evidence presented at trial. The record reveals that while defendant moved at trial to dismiss the charge for insufficient evidence, defendant did not move to dismiss the charge based on any fatal variance. By failing to raise the issue at trial, defendant waived his right to raise the issue on appeal. State v. Pickens, 346 N. C. 628, 645, 488 S. E.2d 162, 172 (1997) ("Regarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review."); State v. Baldwin, 117 N.C. App. 713, 717, 453 S. E.2d 193, 195 ("Defendant moved to dismiss the habitual felon charge based upon double jeopardy and not based upon a variance between the indictment and proof. Defendant waived his right to raise this issue by failing to raise the issue at trial."), cert. denied, 341 N. C. 653, 462 S. E.2d 518 (1995). We, therefore, do not address defendant's contention. See Dogwood Dev. Mgmt. Co. v. White Oak Transp. Co., 362 N. C. 191, 195-96, 657 S. E.2d 361, 364 (2008) ("In light of the practical considerations promoted by the waiver rule, a party's failure to properly preserve an issue for appellate review ordinarily justifies the appellate court's refusal to consider the issue on appeal.").
We do address defendant's arguments regarding the sufficiency of the evidence of misdemeanor larceny. "The essential elements of larceny are that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of his property permanently." Perry, 305 N. C. at 233, 287 S. E.2d at 815. Defendant contends that although he was found in the Cadillac holding the faceplate of the radio, "because the radio itself was still attached to the dash, the evidence was insufficient that [defendant] had stolen, taken, or carried it away."
As defendant acknowledges, the evidence presented at trial is sufficient to permit the jury to find that defendant removed the stereo's faceplate and knobs. "There must be a taking and carrying away of personal property of another to complete the crime of larceny otherwise there is only an attempt to commit the offense." State v. Wilfong, 101 N.C. App. 221, 222, 398 S. E.2d 668, 669 (1990), appeal dismissed, 328 N. C. 336, 404 S. E.2d 864 (1991). "For purposes of larceny the element of taking is complete in the sense of being satisfied at the moment a thief first exercises dominion over the property." State v. Sumpter, 318 N. C. 102, 111, 347 S. E.2d 396, 401 (1986). As for the asportation requirement, "`[a] bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away.'" State v. Carswell, 296 N. C. 101, 103, 249 S. E.2d 427, 428 (1978) (quoting William Blackstone, 4 Commentaries 231). Thus the defendant "must not only move the goods, but he must also have them in his possession, or under his control, even if only for an instant." Id. at 104, 249 S. E.2d at 429.
In Carswell, the Supreme Court held that there was substantial evidence of both "taking" and "asportation" to support the defendant's larceny conviction where the evidence tended to show that the defendant and an accomplice pried an air conditioning unit from its base in a window and placed it on the floor, approximately four to six inches toward the door. Id. Similarly, here, Lt. Ramsey testified that when he first saw defendant in the Cadillac, defendant was holding the radio's faceplate in his left hand, with his right hand under the dashboard. When police searched the car, they found the faceplate along with the radio's knobs on the floorboard of the driver's side. As in Carswell, this evidence is sufficient to permit a reasonable jury to conclude that defendant both exercised dominion over the faceplate and knobs and removed them from the place in which he found them. See also State v. Gray, 58 N.C. App. 102, 104-05, 293 S. E.2d 274, 277 (finding sufficient evidence of "taking and carrying away" of property where evidence showed that defendant removed tires "at least a fraction of an inch from their axles"), disc. review denied, 306 N. C. 746, 295 S. E.2d 482 (1982).
Although the faceplate and knobs are items of arguably nominal value, where there is sufficient evidence of larceny, the value of the property is material only to the issue whether the offense was felony or misdemeanor larceny. See Perry, 305 N. C. at 230, 287 S. E.2d at 813 (affirming this Court's reversal of defendant's felony larceny conviction and remanding for entry of judgment on misdemeanor larceny where evidence showed defendant committed larceny, but value of property was sufficient to support only misdemeanor larceny conviction); State v. Keeter, 35 N.C. App. 574, 575, 241 S. E.2d 708, 709 (1978) (holding that where conviction for felony larceny must be vacated for failure to instruct on value of property, "the verdict will stand, and the case is to be remanded for entering a sentence consistent with a verdict of guilty of misdemeanor larceny"). The trial court, therefore, did not err in denying defendant's motion to dismiss the misdemeanor larceny charge for insufficient evidence.
III
Finally, defendant challenges the admission of evidence of his prior convictions under Rule 404(b) of the Rules of Evidence, which states in pertinent part:
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(b) is a "clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N. C. 268, 278-79, 389 S. E.2d 48, 54 (1990) (emphasis omitted).
Here, defendant's intent to commit the present offenses was at issue. After he was arrested and read his Miranda warnings, defendant told Lt. Ramsey, "I know that wasn't my car and I wasn't supposed to be in it, but in my heart I didn't think I was doing anything wrong." He also stated that he was "trying to do right and be a normal person"; that he had applied for a job at a statements and defendant's claim that he was simply resting in the restaurant; and that he was thinking of voting. Given these car, evidence relating to defendant's intent was relevant at trial. N. C.R. Evid. 401.
The State offered evidence of four prior convictions of defendant through the testimony of the investigating officers: (1) a 1998 conviction of breaking and entering a motor vehicle (98 CRS 1664); (2) a 2001 conviction of breaking and entering a motor vehicle (01 CRS 442); (3) another 2001 conviction of breaking and entering a motor vehicle (01 CRS 443); and (4) a 1999 conviction of felony larceny (99 CRS 589). The State argued that the prior convictions were probative of intent, a proper purpose listed in Rule 404(b). After conducting a voir dire, the trial court allowed the State to offer the evidence of the prior convictions of breaking and entering a motor vehicle, but excluded the evidence of the larceny conviction, stating that it was not as "closely related" to the present charges.
Special Agent Van Williams then testified that in 1998 he investigated a breaking and entering of a vehicle; that clothing, CDs, and car stereo equipment were stolen; that the property was recovered from defendant; and that defendant pled guilty to breaking and entering a motor vehicle. Agent Williams also testified that in 2001 he investigated a breaking and entering of a vehicle; that a knife, CDs, and a sleeping bag were stolen; that the property was recovered from defendant; and that defendant pled guilty to breaking and entering a motor vehicle. Officer Darren Hoilman testified that in 2001 he investigated a breaking and entering of a vehicle; that a fishing pole, sunglasses, and tools were stolen; that all the property recovered was recovered from defendant; and that defendant pled guilty to breaking and entering a motor vehicle.
Where, as here, evidence of prior acts is offered for a proper purpose, in this case intent, "the ultimate test of admissibility is `whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N. C.G.S. § 8C-1, Rule 403.'" State v. Pruitt, 94 N.C. App. 261, 266, 380 S. E.2d 383, 385 (quoting State v. Boyd, 321 N. C. 574, 577, 364 S. E.2d 118, 119 (1988)), disc. review denied, 325 N. C. 435, 384 S. E.2d 545 (1989). "In determining whether the prior acts are sufficiently similar, for purposes of showing motive or intent, the similarities need not `rise to the level of the unique and bizarre.'" State v. Martin, ___ N.C. App. ___, ___, 665 S. E.2d 471, 475 (2008) (quoting State v. Stager, 329 N. C. 278, 304, 406 S. E.2d 876, 891 (1991)), disc. review denied, 363 N. C. 135, 676 S. E.2d 49 (2009). Instead, "the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts." Stager, 329 N. C. at 304, 406 S. E.2d at 891 (emphasis omitted). See also 29 Am. Jur. 2d Evidence § 428 (2008) ("When admitted for the purpose of showing intent, prior acts need not be duplicates of the charged crime but must be sufficiently similar to support an inference of criminal intent.").
The record indicates that defendant's three prior convictions are substantially similar to the ones with which he was charged in this case. All three charges are for breaking and entering a motor vehicle. One of the crimes occurred on the same road near the Spruce Pine Pharmacy where defendant allegedly committed the present offenses of breaking and entering and larceny. Similar to the present offenses, two of the prior convictions involved stolen music or car stereo equipment. These similarities sufficiently support a reasonable inference of defendant's intent to commit the prior and present offenses. See Martin, ___ N.C. App. at ___, 665 S. E.2d at 475 (holding evidence of breaking and entering of residence was sufficiently similar to show intent in attempted burglary case); State v. Hightower, 168 N.C. App. 661, 667-68, 609 S. E.2d 235, 239-40 (concluding evidence of defendant's prior robberies and drug dealing was properly admitted to prove intent in prosecution for robbery and felony murder), disc. review denied, 359 N. C. 639, 614 S. E.2d 533 (2005); State v. Evans, 99 N.C. App. 88, 95, 392 S. E.2d 441, 445 (1990) (holding evidence of defendant's prior larceny was properly considered by jury in determining whether defendant had intent to commit larceny when he broke into second apartment in same apartment complex several days later).
As for the remoteness in time, one of the prior convictions was from 1998 and the other two were committed in 2001; the present offenses allegedly occurred in 2006. In this context, "remoteness in time is less significant when the prior conduct is used to show intent. . . .; remoteness in time generally affects only the weight to be given such evidence, not its admissibility." Stager, 329 N. C. at 307, 406 S. E.2d at 893. Thus, the fact that the prior convictions were committed five to eight years prior to the time defendant allegedly committed the present offenses does not warrant their exclusion under Rule 404(b). See State v. Penland, 343 N. C. 634, 654, 472 S. E.2d 734, 745 (1996) (holding 10-year gap between prior bad act and current offense did not make them too remote), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725, 117 S. Ct. 781 (1997); State v. Patterson, 149 N.C. App. 354, 364, 561 S. E.2d 321, 327 (2002) (holding defendant's "prior bad acts, occurring in Delaware between ten and fifteen years before defendant's trial, were not too remote to be considered as relevant evidence").
"Even if admissible under Rule 404(b), the probative value of evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under Rule 403." State v. Aldridge, 139 N.C. App. 706, 714, 534 S. E.2d 629, 635, appeal dismissed and disc. review denied, 353 N. C. 269, 546 S. E.2d 114 (2000). Defendant, however, fails to make any argument addressing how the admission of the evidence of his prior convictions was unfairly prejudicial or in what way the trial court abused its discretion in admitting the evidence. Defendant's contention is, therefore, overruled.
Defendant also argues that the trial court should have given the jury a limiting instruction regarding the proper consideration of the evidence of his prior convictions. During the voir dire addressing the Rule 404(b) evidence, defense counsel objected to the admission of the evidence and requested a limiting instruction. In its instructions to the jury, the trial court stated:
Ladies and gentlemen evidence has also been received in this particular case tending to show that the Defendant was previously convicted of or plead guilty to the offense of
breaking and entering a motor vehicle. This evidence[,] ladies and gentlemen[,] was received solely for the purpose of the identity of the person who committed the crime charged in this case, if it was committed. That the defendant had a motive for the commission of the crime charged in this case. Or that the Defendant had the intent, which is a necessary element of the crime, we will discuss that in a minute, which has been charged in this case. . . .
If you believe the evidence that has been tendered to you regarding the prior record of the defendant for breaking and entering a motor vehicle, you may consider it but only for the limited purpose for which it was received.
These instructions are based on and are virtually identical to the pattern jury instructions for Rule 404(b) evidence: N. C.P.I. — Crim. 104.15. Defendant, nonetheless, argues that the trial court also should have "specifically instruct[ed] the jury not to consider the evidence to prove the current charges."
Defendant did not object to the limiting instruction at trial. Defendant's argument is, therefore, limited to plain error review. State v. Jones, 358 N. C. 330, 346, 595 S. E.2d 124, 135, cert. denied, 543 U.S. 1023, 160 L. Ed. 2d 500, 125 S. Ct. 659 (2004). Under plain error analysis, defendant bears the burden of demonstrating: "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N. C. 365, 385, 488 S. E.2d 769, 779 (1997).
The Supreme Court rejected a virtually identical argument to that of defendant in this case in State v. Burr, 341 N. C. 263, 461 S. E.2d 602 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526, 116 S. Ct. 1359 (1996). In Burr, the defendant requested an instruction "inform[ing] the [jurors] that they are not to consider such evidence as evidence of the [d]efendant's character and limiting the purposes for which the jury may properly consider it." Id. at 292, 461 S. E.2d at 617 (first alteration added). Instead, the trial court instructed the jury pursuant to N. C.P.I. — Crim. 104.15 and declined to add an extra sentence stating "that the jury was not to consider the evidence as evidence of defendant's bad character." Id. The trial court's instructions in Burr, similar to the instructions here, included the statement to the jury that "they `may consider [the evidence], only for the limited purpose for which it was received.'" Id. The Court concluded that "[t]he trial court followed the pattern instruction and properly instructed the jurors [regarding] the evidence of defendant's prior misconduct. . . ." Id.
Similarly, the defendant in State v. Lloyd, 354 N. C. 76, 88, 552 S. E.2d 596, 608 (2001), argued that the trial court should have included in its instructions a statement that the jury "`may not consider this [Rule 404(b)] evidence in order to show that the defendant acted in conformity.'" Noting that it had rejected a "virtually identical argument" in Burr, the Court overruled defendant's argument, stating that "the trial court followed the pattern instruction, which was in substantial conformity with defendant's request." Lloyd, 354 N. C. at 92, 552 S. E.2d at 610.
In light of Burr and Lloyd, the trial court did not err in this case, much less commit plain error, by instructing the jury consistent with the pattern jury instructions. See also Martin, ___ N.C. App. at ___, 665 S. E.2d at 476 (finding no plain error where trial court's instructions regarding Rule 404(b) evidence was consistent with pattern instructions).
Reversed in part; no error in part. Judges
McGEE and BEASLEY concur.
Report per Rule 30(e).