IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-684
Filed: 16 May 2017
Wayne County, Nos. 14 CRS 055045, 15 CRS 000551
STATE OF NORTH CAROLINA
v.
DARYL WILLIAMS, Defendant.
Appeal by defendant from judgment entered 12 August 2015 by Judge Paul L.
Jones in Wayne County Superior Court. Heard in the Court of Appeals 25 January
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Scott A.
Conklin, for the State.
Gilda C. Rodriguez for defendant-appellant.
ELMORE, Judge.
Daryl Williams (defendant) was charged with possession of a firearm by a felon
after officers found an AK-47 rifle in the back seat of a vehicle and a Highpoint .380
pistol next to the rear tire on the passenger’s side. At trial, the State offered evidence
of a prior incident in which officers found a Glock 22 pistol in a different vehicle
occupied by defendant. The trial court admitted the evidence to show defendant’s
knowledge and opportunity to commit the crime charged. At the conclusion of trial,
STATE V. WILLIAMS
Opinion of the Court
the jury found defendant guilty of possession of a firearm by a felon and he pleaded
guilty to attaining habitual felon status.
After his conviction, defendant filed a petition for writ of certiorari, which we
allowed. Defendant argues that evidence of the prior incident was not admissible
under Rules 404(b) and 403, and that the trial court erred each time it instructed the
jury on the limited purpose for which it could consider the evidence. Reviewing for
prejudicial error, we hold that the trial court erred in admitting the evidence as
circumstantial proof of defendant’s knowledge, and the trial court abused its
discretion in admitting the evidence as circumstantial proof of defendant’s
opportunity to commit the crime charged. We need not address defendant’s second
argument regarding the court’s jury instructions. Defendant is entitled to a new trial.
I. Background
On 30 November 2014 at 1:45 a.m., Officer Kenneth Prevost responded to a
“shots fired” call at the Alpha Arms Apartments in Goldsboro. Upon his arrival, he
saw defendant and two unidentified men in the parking lot standing near a Crown
Victoria. The front passenger’s door was open and he saw defendant put something
into the vehicle before shutting the door. The two men walked away as Officer
Prevost approached but defendant remained standing on the passenger’s side of the
vehicle.
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When Officer Prevost asked defendant if he had heard any gunshots, defendant
replied that he had not. Defendant also denied having any weapons on him. Officer
Prevost frisked defendant and, after confirming he was unarmed, told defendant he
was free to go. As defendant walked away, Officer Prevost shined a flashlight inside
the Crown Victoria and observed an AK-47 rifle in the back seat. When he saw the
rifle, he ordered defendant to stop and placed him under arrest.
Officer Prevost searched defendant incident to his arrest, finding the keys to
the Crown Victoria in his pants pocket. Once backup arrived, the officers proceeded
to search the vehicle. Officer Prevost noticed a strong odor of marijuana when he
opened the passenger’s side door but did not find any marijuana inside the vehicle.
The officers did find defendant’s debit card, his social security card, and a medication
bottle with defendant’s name on it. Although the vehicle was not registered to
defendant, Officer Prevost testified that he had seen defendant driving it on other
occasions.
Along with the rifle in the back seat, the officers found a Highpoint .380 pistol
underneath the vehicle, next to the rear tire on the passenger’s side. Officer Prevost
seized the firearms and secured them in the trunk of his patrol car. No fingerprint
analysis was conducted on the rifle or pistol, and no tests were performed to
determine if they had been fired that night.
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Opinion of the Court
Defendant offered evidence at trial tending to show that he had no knowledge
of the rifle and pistol recovered at the scene. Tyrik Joyner testified that he was at
the apartment complex on 30 November 2014 with his cousin, Ty’rek Mathis. Joyner
was visiting with his “homegirl,” Shaniqua Johnson, who lived in one of the
apartments. Joyner received a call from his uncle who had recently purchased the
AK-47 and asked Joyner to hold onto the rifle while he went to the club. His uncle
dropped off the rifle and Joyner, having nowhere else to keep it, placed it in the back
seat of the unlocked Crown Victoria. He claimed that the vehicle belonged to
Johnson, though she let other people drive it. Joyner testified that no one fired the
rifle and the shots he and Mathis heard came from a different direction. Although
Joyner had seen defendant walking around the apartment complex earlier that
evening, defendant was not at Johnson’s apartment and was not present when Joyner
placed the rifle in the back seat.
Mathis also testified that he was with Joyner at the apartment complex that
night. Mathis was reluctantly carrying a pistol that belonged to another cousin, who
had asked Mathis to hold it for him. Mathis and Joyner planned on going to Johnson’s
apartment that night to drink and play cards but Mathis knew that Johnson would
not allow guns in her apartment. He also testified: “I’m not no guy that, you know,
walk around with no gun.” When he saw Joyner place the rifle in the back seat of the
Crown Victoria, Mathis decided he too would leave the pistol underneath the vehicle
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Opinion of the Court
before heading inside. As far as he knew, the vehicle belonged to Johnson and was
driven by Johnson. Mathis testified that he did not see defendant or the police that
night. It was only when he left Johnson’s apartment later that he realized the pistol
was gone.
The issues raised in defendant’s petition for writ of certiorari are based upon
the admission of Rule 404(b) evidence at trial. Officer Prevost and Sergeant Leanne
Rabun testified that they had a previous encounter with defendant on 12 July 2013
(the “prior incident”). They responded to a call to investigate a suspected drug
transaction between two men in the parking lot of a strip mall. One had since left
the parking lot but the other was seen entering a white SUV. Officer Prevost arrived
to conduct a K-9 sniff of the vehicle and saw defendant, the sole occupant, sitting in
the driver’s seat. The sniff led to a subsequent search of the vehicle in which the
officers found a Glock 22 pistol with an extended magazine underneath the driver’s
seat.
At trial, the State argued that it was not offering the evidence to prove conduct
in conformity therewith but as independently relevant circumstantial evidence of
motive, knowledge, and identity. Sergeant Rabun testified during voir dire that
defendant told her he was carrying the Glock 22 because his house had been robbed
which, according to the State, was evidence of his motive to carry a firearm for
protection. As to knowledge, the State argued that the prior incident tended to show
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Opinion of the Court
that defendant knew the rifle and pistol were in and around the Crown Victoria.
Finally, the State asserted that the prior incident was relevant to identify defendant
as the perpetrator because it shows “that these are his firearms. That’s a habit of his
modus operandi to have firearms.”
After voir dire, the trial court announced its ruling on the evidence:
THE COURT: Okay. Court’s going to allow that evidence
in for limited purpose of basically the fact that the officers
were familiar with him; and on a prior occasion, that being
July 12, 2013, there was a prior incident which defendant
was stopped for suspicion of some crime; and they found
him in possession of a firearm, and that’s going to be the
extent of it.
Although the purpose for which the evidence was initially admitted is not clear, the
court subsequently denied the State’s request to ask Sergeant Rabun about the
reason for which defendant had the Glock 22, indicating that the prior incident was
not admitted to show motive.
After Officer Prevost and Sergeant Rabun testified, the trial court instructed
the jury that it could only consider the evidence as proof of defendant’s knowledge:
THE COURT: . . . Ladies and Gentlemen, the Court is
going to give you a limited instruction regarding prior
testimony in this case. Evidence of other crimes is
inadmissible if it’s only referenced to show the character of
the accused.
There are two exceptions, one where a specific mental
attitude, state, is an essential element of the crime
charged. Evidence may be offered of certain action,
declaration of the accused as it tends to establish the
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Opinion of the Court
requisite mental intent or state even though the evidence
disclosed the commission of another offense by the accused.
And two, where a guilt[y] knowledge is an essential
element of the crime charged. Evidence to be offered of
such action and declaration of an accused tend[s] to
establish the requisite guilt[y] knowledge even though the
evidence reveals commission of another offense by the
accused.
Ladies and Gentlemen, the defendant cannot be convicted
in this trial for something he has done in the past unless it
is an essential element of the charge here.
Later, during the charge conference, the trial court announced for the first time that
the evidence could also be considered as proof of defendant’s opportunity to commit
the crime charged. The court instructed the jury thereafter:
Evidence that has been received tend[s] to show that that
previous encounter, defendant and Officer Prevost, were
involved in an incident which involved a firearm, which
was detailed as a Glock pistol. This evidence was received
solely for showing defendant had knowledge, which is a
necessary element of the crime charged in the case, and that
defendant had opportunity to commit the crime.
If you believe this evidence, you may consider it, which you
will consider it only for the limited purpose which it was
received. You may not consider it for any other purpose.
Evidence of other crimes is inadmissible if its only
relevance is to show the character of the accused. There
are exceptions to the rule. They are when specific mental
attitude or state is a sentencing element of the crime
charged.
Evidence may be offered of such action [ ]or declaration of
the accused as they tend to establish mental state even
though the evidence discloses the commission of another
offense by the accused or where guilt[y] knowledge is an
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Opinion of the Court
essential element of the crime charged.
Evidence may be offered of such action or declarations of
the accused that tends to establish required guilt[y]
knowledge; that even though the evidence reveals a
commissioned offense by the accused, defendant cannot be
convicted in this trial for something he has done in the
past, unless it is an element of the charges here.
(Emphasis added.)
II. Discussion
Defendant raises two issues for appellate review. First, defendant argues that
testimony of the prior incident was improper character evidence under Rule 404(b)
and should have otherwise been excluded under Rule 403. Second, defendant argues
that the trial court erred each time it instructed the jury on the limited purpose for
which it could consider the evidence.
A. Preservation
Defendant maintains that his trial counsel’s objections to the prior incident
were sufficient to preserve the first issue for appellate review, citing to this Court’s
decision in State v. Randolph, 224 N.C. App. 521, 527–28, 735 S.E.2d 845, 850–51
(2012) (holding that the defendant preserved issue for appeal where he filed a pre-
trial motion to suppress, the trial court deferred ruling until the issue arose at trial,
the defendant objected on the same grounds during voir dire, but he did not object to
the challenged testimony when it was elicited before the jury), appeal dismissed, 366
N.C. 562, 738 S.E.2d 392 (2013). Alternatively, defendant contends that the
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Opinion of the Court
admission of the evidence amounts to plain error. The State argues in response that
our review is limited to plain error because defendant failed to raise a timely objection
at trial.
Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure provides in
pertinent part: “In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” N.C. R. App. P. 10(a)(1) (2017). “To be timely, an
objection to the admission of evidence must be made ‘at the time it is actually
introduced at trial.’ It is insufficient to object only to the presenting party’s forecast
of the evidence.” State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (quoting
State v. Thibodeaux, 352 N.C. 570, 581, 532 S.E.2d 797, 806 (2000)); see also State v.
Snead, 368 N.C. 811, 816, 783 S.E.2d 733, 737–38 (2016) (holding that objection
outside the presence of the jury was insufficient to preserve the alleged error for
appellate review). An unpreserved issue in a criminal case may still be “presented
on appeal when the judicial action questioned is specifically and distinctly contended
to amount to plain error.” N.C. R. App. P. 10(a)(4) (2017).
Defense counsel first objected to evidence of the prior incident before jury
selection but the court deferred its ruling until the State offered the evidence at trial.
After Officer Prevost testified on direct to the circumstances of his investigation at
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the Alpha Arms Apartments, the court ordered a recess in anticipation of voir dire.
Defense counsel briefly reminded the trial court of the basis for his objection and,
when the session resumed, the court convened a voir dire of Officer Prevost and
Sergeant Rabun.
After hearing their testimony concerning the prior incident and the arguments
by counsel, the trial court ruled the evidence admissible. At that point, defense
counsel requested: “Judge, I would just note an exception for the record.” The trial
court responded: “Okay. Exception for the record.” Defense counsel failed to object
thereafter when Officer Prevost and Sergeant Rabun testified to the prior incident in
the presence of the jury but renewed his objection once more during the charge
conference.
Based on the exchange between defense counsel and the trial court following
voir dire, it is understandable that counsel would not feel compelled to renew his
objection in the presence of the jury. To the extent that defense counsel relied on the
trial court’s statement as assurance that a subsequent objection was unnecessary to
preserve the issue, it would be fundamentally unfair to fault defendant on appeal—
especially since the purpose for which the evidence was admitted was not settled until
the charge conference. In light of the circumstances of this case, we review for
prejudicial error. See State v. Kostick, 233 N.C. App. 62, 67–68, 755 S.E.2d 411, 415–
16 (reviewing appeal on the merits where the trial court noted the defendant’s
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“exception” to a pre-trial ruling denying his motion to suppress; the defendant’s
failure to include the jury trial transcript in record on appeal made it impossible to
determine whether he renewed his objection at trial; and the State agreed that the
“pretrial hearing transcript would be sufficient for purposes of defendant’s appeal”),
disc. review denied, 367 N.C. 508, 758 S.E.2d 872 (2014).
B. Rule 404(b) Evidence
“The admissibility of evidence is governed by a threshold inquiry into its
relevance.” State v. Griffin, 136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (2000)
(citation omitted). Evidence is relevant if it has “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. Gen. Stat. § 8C-1, Rule
401 (2015). Relevant evidence may nevertheless “be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2015).
Pursuant to Rule 404(b), “[e]vidence 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.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2015). Such evidence
“may, however, be admissible for other purposes, such as proof of motive, opportunity,
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intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or
accident.” Id. Rule 404(b) has thus been described as a
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); see also State v. White,
340 N.C. 264, 284, 457 S.E.2d 841, 852–53 (1995) (“The list of permissible purposes
for admission of ‘other crimes’ evidence is not exclusive, 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.” (citing State v. Bagley, 321 N.C. 201, 362 S.E.2d 244
(1987), cert. denied, 485 U.S. 1036 (1988))). “Rule 404(b) evidence, however, should
be carefully scrutinized in order to adequately safeguard against the improper
introduction of character evidence against the accused.” State v. Al-Bayyinah, 356
N.C. 150, 154, 567 S.E.2d 120, 122 (2002). In furtherance of “these important
evidentiary safeguards, the rule of inclusion described in Coffey is constrained by the
requirements of similarity and temporal proximity.” Id. at 154, 567 S.E.2d at 123
(citations omitted).
Whether evidence is “within the coverage of Rule 404(b)” is a legal conclusion
reviewed de novo on appeal. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d
156, 159 (2012). “ ‘Under a de novo review, the court considers the matter anew and
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freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams,
362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of The Greens
of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
Whether relevant evidence passes muster under Rule 403 is a discretionary
ruling reviewed for abuse of discretion on appeal. Beckelheimer, 366 N.C. at 130, 726
S.E.2d at 159. An abuse of discretion occurs “where the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
“In our review, we consider not whether we might disagree with the trial court, but
whether the trial court’s actions are fairly supported by the record.” State v. Lasiter,
361 N.C. 299, 302, 643 S.E.2d 909, 911 (2007) (citing Wainwright v. Witt, 469 U.S.
412, 434 (1985)).
1. Knowledge
We first address whether evidence of the prior incident was properly admitted
as circumstantial proof of defendant’s knowledge. Although knowledge is not an
essential element of possession of a firearm by a felon, see N.C. Gen. Stat. § 14-
415.1(a) (2015); State v. Mitchell, 224 N.C. App. 171, 176–78, 735 S.E.2d 438, 442–44
(2012), defendant’s position at trial—that he was not aware of the rifle and pistol—
made his guilty knowledge a material fact in issue. The State prosecuted defendant
on the theory of constructive possession, which requires that a defendant have “both
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Opinion of the Court
the power and intent to control [the item’s] disposition or use.” State v. Harvey, 281
N.C. 1, 12, 187 S.E.2d 706, 714 (1972). “The requirements of power and intent
necessarily imply that a defendant must be aware of the [item’s] presence . . . if he is
to be convicted of possessing it.” State v. Davis, 20 N.C. App. 191, 192, 201 S.E.2d 61,
62 (1973). Circumstantial evidence that defendant knew of the firearms, therefore,
would tend to prove his constructive possession thereof.
The problem with the testimony is that its tendency, if any, to prove knowledge
is based almost entirely upon defendant’s propensity to commit the crime charged.
The State contends that “the discovery of firearms in vehicles controlled by the
Defendant increases the likelihood that the Defendant was aware of the firearms in
and beside the [Crown] Victoria.” That is to say, a person who possessed a pistol in
the past is more likely to have known about the firearms found on a more recent
occasion. Knowledge, in the State’s assertion, does not follow logically from the mere
fact of prior possession. It flows instead from an intermediate inference, i.e., because
defendant possessed a firearm in the past, he probably did so again, and therefore
knew of the rifle and pistol. See David P. Leonard, The New Wigmore: Evidence of
Other Misconduct and Similar Events § 6.4.1, at 403–15 (2009).1
1The New Wigmore: Evidence of Other Misconduct and Similar Events refers to Federal Rule of
Evidence 404(b), which is nearly identical to the pertinent provisions of North Carolina Rule of
Evidence 404(b) at issue in this case.
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Opinion of the Court
Absent an intermediate character inference, the fact that defendant, one year
prior, was found to be in possession of a different firearm, in a different car, at a
different location, during a different type of investigation, does not tend to establish
that he was aware of the rifle and pistol in this case. See id. § 6.4.2, at 420 (“Of course,
a person’s mere possession of a firearm on an uncharged occasion, without more, has
no meaningful tendency to prove defendant knew of the presence of the firearm on
the charged occasion.”); see also id. (“Only when facts are present linking the two
events in time, by circumstances, or in other respects, is it appropriate to admit the
evidence to rebut a defense of lack of knowledge.”); cf. State v. Weldon, 314 N.C. 401,
403–07, 333 S.E.2d 701, 702–05 (1985) (holding that evidence of two similar occasions
in which heroin and large sums of cash were found in the defendant’s home was
admissible to prove guilty knowledge, where the defendant “denied knowing to whom
the heroin belonged or how it got into her house” and claimed “she would never
knowingly allow anyone to possess drugs on her premises”). Because its relevance
was based upon an improper character inference, the trial court erred in admitting
the evidence as proof of defendant’s knowledge.
2. Opportunity
Next, we address whether evidence of the prior incident was properly admitted
to establish defendant’s opportunity to commit the crime. Apart from conclusory
statements, the State offered no explanation—either at trial or on appeal—of the
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connection between the prior incident, opportunity, and possession. We can only
assume that the evidence was offered to first establish that defendant had access to
firearms, leading to the next logical inference that defendant had an opportunity to
possess them. The final inference, flowing from defendant’s opportunity, might be
that defendant possessed the rifle and pistol recovered in this case. See 1 Kenneth S.
Broun et al., McCormick on Evidence § 190, at 761–62 (6th ed. 2006) (describing
“opportunity, in the sense of access to or presence at the scene of the crime or in the
sense of possessing distinctive or unusual skills or abilities employed in the
commission of the crime charged” (footnotes omitted)).2 Possession was, of course, a
material fact in genuine dispute.
The probative value of the prior incident to show opportunity and, ultimately,
possession is limited by three principal concerns. First, the jury had to make the
connection between possession in the prior incident and access to firearms before
establishing the intermediate fact of opportunity. The officers’ testimony of the prior
incident, however, falls short of explaining how defendant acquired the Glock 22, or
of revealing a reliable source of firearms. The shortcoming is understandable, as the
State did not initially offer the evidence to show opportunity. Although the
connection between prior possession and access is not a challenging one to make,
2 McCormick on Evidence also refers to Federal Rule of Evidence 404(b).
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adding another link to the chain of inferences naturally diminishes the probative
value of the evidence.
Second, the mere fact that defendant had access to firearms does not place him
within a smaller category of potential perpetrators in this case. It was never
defendant’s contention that, as a convicted felon, he could not lawfully purchase
firearms and, therefore, had a lesser opportunity to possess them. Proof of
defendant’s opportunity to possess firearms only establishes his equal footing with a
majority of citizens who can purchase and possess firearms freely, and the prior
incident does not reveal some special opportunity to possess the particular rifle and
pistol recovered in this case. See Leonard, supra, § 11.2, at 664–65 (“[I]f everyone has
access to the means to commit a crime, the evidence either is not relevant or is of
negligible probative value to identify Defendant as the perpetrator.” (citing 1 Edward
J. Imwinkelried, Uncharged Misconduct Evidence § 3:03, at 6 (1998))).
Finally, any tendency the evidence had to show opportunity was superfluous
in light of the other—and less prejudicial—evidence at trial. See State v. Wilkerson,
148 N.C. App. 310, 327, 559 S.E.2d 5, 16 (Wynn, J. dissenting) (“[T]he existence of
other evidence of defendant’s intent and knowledge in the instant case greatly
reduced the probative value of defendant’s prior convictions, while simultaneously
increasing their prejudicial effect.” (citation omitted)), rev’d per curiam for the reasons
stated in the dissent, 356 N.C. 418, 571 S.E.2d 583 (2002). Officer Prevost’s testimony
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already established that defendant had an opportunity to possess the rifle and pistol.
Defendant was seen standing next to the vehicle before Officer Prevost saw the rifle
in the back seat, the keys to the vehicle were found in defendant’s pants pocket, and
some of his belongings were found inside the vehicle. In fact, the testimony of his
own two witnesses would show that defendant had an opportunity to commit the
crime charged in that he associated with people who had firearms.
The danger of unfair prejudice, on the other hand, is obvious. Evidence that
defendant possessed a pistol on a prior occasion naturally invites the presumption
that he did so again. The jury was far more likely to take the intuitive route, inferring
possession in this case based on defendant’s possession in the prior incident, than it
was to follow the strained logic connecting the prior incident to opportunity and,
ultimately, possession. See Leonard, supra, § 6.4.1, at 405–06. The more obvious
character inference is, of course, what Rule 404(b) prohibits and what Rule 403
attempts to guard against. See State v. Carpenter, 361 N.C. 382, 387–88, 646 S.E.2d
105, 109 (2007) (recognizing a “natural and inevitable tendency . . . to give excessive
weight to” evidence of a prior offense “and either to allow it to bear too strongly on
the present charge or to take the proof of it as justifying a condemnation, irrespective
of the accused’s guilt of the present charge.” (citations omitted) (internal quotation
marks omitted)); State v. Johnson, 317 N.C. 417, 430, 347 S.E.2d 7, 15 (1986) (noting
“[t]he dangerous tendency of [Rule 404(b)] evidence to mislead and raise a legally
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spurious presumption of guilt”); State v. McClain, 240 N.C. 171, 176, 81 S.E.2d 364,
368 (1954) (“[E]vidence of other crimes is likely to have a prejudicial effect on the
fundamental right of the accused to a fair trial . . . .”).
Based on the minimal probative value, if any, that the prior incident had in
establishing opportunity and possession in this case, it was certainly and
substantially outweighed by the danger of unfair prejudice. While we are mindful
that a trial court is not required to make an explicit demonstration of the Rule 403
balancing test, State v. Mabrey, 184 N.C. App. 259, 266, 646 S.E.2d 559, 564 (2007),
there is some concern whether the court gave Rule 403 the attention it deserved. The
court initially ruled the evidence admissible to show that the officers were familiar
with defendant and that, on a prior occasion, “they found him in possession of a
firearm.” It was not until the charge conference that the court announced, without
explanation, that the evidence could be considered by the jury to show opportunity.
Based on the foregoing, we conclude that the trial court abused its discretion in
admitting evidence of the prior incident as proof of defendant’s opportunity to commit
the crime charged.
3. Prejudice
We further conclude that the trial court’s error in admitting the evidence for
no proper purpose was prejudicial to the defense and warrants a new trial. See N.C.
Gen. Stat. § 15A-1443(a) (2015). The circumstances in this case “reveal a distinct risk
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that the jury may have been led to convict based on evidence of an offense not then
before it.” State v. Hembree, 368 N.C. 2, 14, 770 S.E.2d 77, 86 (2015). The State’s
evidence of possession may have been sufficient to submit the charge to the jury, see
State v. Hudson, 206 N.C. App. 482, 489–90, 696 S.E.2d 577, 582–83 (2010), but it
was not overwhelming. Apart from the prior incident, the evidence of defendant’s
guilt was based circumstantially on his proximity to the vehicle and his control
thereof. Defendant’s evidence, on the other hand, tended to show that, despite any
control defendant had over the vehicle, he was not aware of the firearms. See State
v. Hairston, 156 N.C. App. 202, 205, 576 S.E.2d 121, 123 (2003) (holding that evidence
of the “defendant’s guilt was conflicting and was not so overwhelming as to make the
trial court’s error in admitting prior convictions evidence non-prejudicial”).
We are also not convinced that the trial court’s limiting instructions had a
meaningful impact on the jury so as to cure the prejudice. The court emphasized the
use of the evidence to show knowledge, which rested upon an impermissible character
inference. In the same context, the court twice instructed the jury that “defendant
cannot be convicted for something he has done in the past, unless it is an element of
the charges here,” referring to the prior incident and defendant’s knowledge in this
case. In light of the conflicting evidence, the trial court’s instructions, and the
inherent prejudice associated with improper character evidence, there is a reasonable
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possibility that, had evidence of the prior incident not been admitted, the jury would
have reached a different result.
C. Jury Instructions
As a separate issue on appeal, defendant contends that the trial court erred
each time it instructed the jury on the limited purpose for which it could consider
evidence of the prior incident. We discussed the court’s limiting instructions, supra,
only to explain the negligible impact that the instructions had in curing the prejudice
at trial. Based on our disposition and the unlikelihood that the same instruction will
be offered without the evidence, we do not specifically address defendant’s argument
or the preservation thereof. See Hairston, 156 N.C. App. at 205, 576 S.E.2d at 123.
III. Conclusion
The trial court erred in admitting evidence of the prior incident to show
defendant’s knowledge and opportunity to commit the crime charged. There is a
reasonable possibility that, had the evidence not been admitted, the jury would have
reached a different result. Defendant is entitled to a new trial.
NEW TRIAL.
Judge ZACHARY concurs.
Judge DILLON dissents by separate opinion.
- 21 -
No. COA16-684 – STATE v. WILLIAMS
DILLON, Judge, dissenting.
On appeal, Defendant argues that the trial court erred in admitting certain
testimony from a State witness. The jurisprudence from our Supreme Court compels
us to conclude that Defendant did not properly preserve his objection to this
testimony. Accordingly, I disagree with the majority and believe that we should
review the alleged error for plain error. Further, I do not believe that the admission
of the challenged testimony amounted to plain error.
In the present case, the trial court conducted a voir dire of the proposed
testimony outside the presence of the jury. After hearing the testimony, the trial
court indicated that it would admit the evidence. Defendant’s counsel noted an
exception for the record, which the trial court acknowledged. The jury was then called
back in, and the State offered the testimony into evidence. However, when the State
offered the testimony in the presence of the jury, Defendant’s counsel did not object.
Our Supreme Court has held that a defendant who objects during a forecast of
evidence outside the presence of the jury does not preserve the objection unless he
objects when the testimony is offered into evidence in the jury’s presence:
Generally speaking, the appellate courts of this state will
not review a trial court’s decision to admit evidence unless
there has been a timely objection. To be timely, an
objection to the admission of evidence must be made at the
time it is actually introduced at trial. It is insufficient to
object only to the presenting party’s forecast of the
evidence. As such, in order to preserve for appellate review
a trial court’s decision to admit testimony, objections to that
testimony must be contemporaneous with the time such
STATE V. WILLIAMS
DILLON, J., dissenting
testimony is offered into evidence and not made only during
a hearing out of the jury’s presence prior to the actual
introduction of the testimony.
State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (citations and internal
marks omitted) (emphasis added).
Much like in the present case, in Ray, the trial court excused the jury while it
conducted a voir dire of a line of questioning that the State wanted to pursue during
its cross-examination of the defendant. The defendant’s counsel objected to the line
of questioning during the voir dire but failed to renew the objection when the
evidence was offered in the presence of the jury. Id. at 276, 697 S.E.2d at 321. The
Supreme Court held that the defendant did not preserve the objection; and,
therefore, any error could only be reviewed for plain error. Id. at 277, 697 S.E.2d at
322. The Supreme Court reaffirmed its holding just last year in State v. Snead, 368
N.C. 811, 816, 783 S.E.2d 733, 737-38 (2016).
The majority argues that it would be “fundamentally unfair” to fault
Defendant on appeal. I understand the majority’s argument.3 However, the
Supreme Court has been clear on this point. And we are compelled to follow holdings
3 The majority relies, in part, on State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845 (2012).
Randolph, though, does not cite any Supreme Court opinions to support its holding. We are bound to
follow Supreme Court precedent until that precedent is overruled, notwithstanding a contrary opinion
from our Court. See Andrews v. Haygood, 188 N.C. App. 244, 248, 655 S.E.2d 440, 443 (2008) (“[T]his
Court has no authority to overrule decisions of our Supreme Court and we have the responsibility to
follow those decisions until otherwise ordered by our Supreme Court.” (citations and internal marks
omitted)).
2
STATE V. WILLIAMS
DILLON, J., dissenting
from our Supreme Court. See Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180
(1993). Accordingly, I conclude that we must apply plain error.4
Turning to the merits of the present appeal, I conclude that, even assuming
arguendo that the admission of the testimony was error, the error did not amount to
plain error. There was sufficient evidence from which a jury could infer that
Defendant possessed a weapon. For instance, there was evidence that he was driving
the car where one of the weapons was found. See State v. Best, 214 N.C. App. 39, 47,
713 S.E.2d 556, 562 (2011) (suggesting that control of the vehicle where weapons are
found is sufficient to go to the jury on the issue of constructive possession). Further,
an officer testified that he observed Defendant standing on the same side of the car
where one weapon was later found lying on the ground under the car. Therefore, I
cannot say that the jury “probably” would have reached a different verdict had the
challenged testimony not been offered.
Defendant also argues on appeal that the trial court erred in certain portions
of its instructions to the jury. The majority does not address this issue, based on its
conclusion that the admission of the testimony from the State’s witness constituted
4 The majority relies, in part, on the trial judge’s statement that Defendant’s objection made
during voir dire was noted in the record. However, the trial court did not offer its legal opinion that
the objection was sufficient to preserve it for appellate review. And it is evident that the trial judges
in Ray and Snead also allowed the objections made during voir dire to be part of the record, as our
Supreme Court references those objections in its opinions. See Ray, 364 N.C. at 276-77, 697 S.E.2d at
321-22; Snead, 368 N.C. at 816, 783 S.E.2d at 737-38. However, the fact that the objections were part
of the record in those cases did not satisfy the requirement that the record had to show that the
objections were renewed when the challenged evidence was offered in the presence of the jury.
3
STATE V. WILLIAMS
DILLON, J., dissenting
reversible error. Regarding Defendant’s argument concerning the jury instructions,
I conclude that, even assuming the instructions were error, the jury “probably” would
not have reached a different verdict without those instructions.
In conclusion, I believe that Defendant received a fair trial, free from plain
error.
4