State v. Williams

JOHNSON, Judge.

Defendant assigns error to the admission of testimony by Molton Barnes concerning the nearly identical robbery of Mr. Barnes two days after the robbery of Ms. Swinson and Ms. Mc-Clennahan. We find no error in the admission of this evidence.

Defendant argues that this evidence should have been excluded under G.S. 8C-1, Rule 404(b) which 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 mistake, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

As a general rule, the State cannot introduce evidence tending to show that an accused has committed an offense other than the one for which he is being tried. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). The general rule is subject to exceptions as follows:

4. Where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged. . . .

Id. at 175, 81 S.E. 2d at 367.

*284We have interpreted this language to be applicable where the accused is not definitely identified. State v. Streath, 73 N.C. App. 546, 327 S.E. 2d 240, disc. rev. denied, 313 N.C. 513, 329 S.E. 2d 402 (1985). “Thus, unless the defendant presents alibi evidence, evidence of other crimes to show identity, either directly or indirectly (common plan), should not be admitted under McClain.” Id. at 550, 327 S.E. 2d 242. We again note, as we did in Streath that no change has occurred in the operative framework of our eviden-tiary rules; therefore, we must still conclude that the State could properly present this evidence of other misconduct in its case in chief if it fit the McClain exceptions.

In the case at bar, the principal issue was the identity of defendant as the perpetrator of the crimes charged. Although Ms. Swinson and Ms. McClennahan identified defendant as the perpetrator, his evidence of alibi made the issue of whether he was in fact the perpetrator “the very heart of the case.” State v. Freeman, 303 N.C. 299, 302, 278 S.E. 2d 207, 208-09 (1981).

Evidence of other misconduct is admissible under the identity exception upon a showing of unusual facts present in both acts, or particularly similar acts which tend to show that the same person committed both. Streath, supra, at 551, 327 S.E. 2d at 243. Witnesses in the case sub judice testified that on both occasions defendant was picked up in a taxi at a public place and at approximately the same time; that the weapon used in each offense was a knife with a blade about five to six inches in length; that the robberies occurred upon arrival at the destination given to the driver; and that defendant was the robber. We conclude that the incidents were sufficiently similar that the evidence was properly admitted.

Defendant’s final contention is that the trial court failed to give a limiting instruction regarding the testimony of Mr. Barnes, even though such an instruction was requested by counsel and agreed upon by the court. Defendant argues that Mr. Barnes’ testimony was only admitted for the limited purpose of establishing identity; therefore, the trial court should have instructed the jury accordingly.

The trial judge, in the portion of the jury instructions pertinent to this assignment of error, instructed the jury as follows:

*285Touching on the alleged events of February 26th at the library and after, I would say this to you. (trial judge speaking to jury) Of course, you understand that Mr. Williams is not on trial for anything alleged to have occurred on the 26th of February of 1985. Given the time interval between the two alleged events, the circumstances surrounding the two events and the selection of this defendant as the robber by each alleged victim, the evidence of the event of February 26th involving Molton Barnes is competent on the question of the identity of the robber on the 24th. It is only that, however, and is entitled to only so much weight as you decide that it is entitled to have in the light of all of the other credible evidence in the case. (Emphasis added.)

We find that the jury was properly instructed as to the limited admissibility of Mr. Barnes’ testimony. We find defendant’s contention is without merit.

In defendant’s trial we find

No error.

Judges Arnold and Whichard concur.