dissenting:
I agree with the majority that the principal issue is whether the fact that Milton Sparks was convicted of speeding on prior occasions had a 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. My answer is “yes.”
First, the majority states that “when intent to commit a crime is at issue, we have regularly permitted the admission of prior acts to prove that element.” Here, intent to race was at issue, as Gilley Trucking attempted to prove racing and speeding on the part of Sparks. While intent is not an element of a criminal conviction of speeding, it is an element of racing. Would Sparks’ six prior speeding tickets in three years be relevant evidence upon the issue of whether he was engaged in racing at the time of the accident? I believe it would. The trial judge could find that such tickets were admissible as probative of Sparks’ intent or plan to race, although they are clearly not admissible to prove conduct in conformity with prior acts of speeding.
The majority suggests that “a showing of prior acts of speeding without more is still not relevant to establishing this state of mind.” (emphasis added). Presumably, the Court is talking about the state of mind to race. I would agree that such prior acts alone are not sufficient to prove Sparks was racing, but they are relevant with the “more” that exists on the issue of whether Sparks had the intent to race over the mountain. The “more” includes the testimony of Lawrence Fox, the defendant’s truck driver, that “he met two ears racing on the mountain” and Officer Doster’s testimony estimating Sparks’ rate of speed immediately before the accident at 70 m.p.h.
Given that Fed.R.Evid. 404(b) is a “rule of inclusion,” United States v. Masters, 622 F.2d 83, 85 (4th Cir.1980), was the admission of Sparks’ prior speeding tickets “arbitrary or irrational?” United States v. Haney, 914 F.2d 602, 607 (4th Cir.1990). My answer is “no.” That the trial judge appreciated the complexity of this issue is' demonstrated by the fact that he considered the admissibility *55of the speeding tickets on three separate occasions: (1) in the weighing of the probative value of the evidence at the pre-trial hearing; (2) in his lengthy limiting instruction to the jury during trial; and (3) in a similar instruction at the close of the evidence. Further, the trial judge clearly explained and supported his reasoning in his post-trial opinion denying Sparks’ motion for a new trial.
It is not suggested that the prior traffic records of anyone accused of negligence should be automatically admissible in a motor vehicle collision case. However, the trial judge recognized this was a unique problem due to the nature of Gilley Trucking’s defense of contributory negligence. That is, the negligence charged to Sparks was based, in part, on the fact that he was allegedly engaged in a race to cross the mountain in the least possible time.
The trial judge was in a unique position to hear and appreciate all the evidence in the case. He carefully weighed the issue in advance of trial, gave an extensive limiting instruction during the trial and included a final limiting instruction in his charge to the jury. The trial judge noted in his ruling upon Sparks’ motion for a new trial that under North Carolina law prior driving records may be received in evidence if the stated exceptions of Rule 404(b) are met. Hinnant v. Holland, 92 N.C.App. 142, 149-50, 374 S.E.2d 152, 157 (1988), review denied, 324 N.C. 335, 378 S.E.2d 792 (1989). Cf. United States v. Fleming, 739 F.2d 945, 949 (4th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985) (a defendant’s driving record showing previous convictions for driving while intoxicated could be admitted under 404(b) “to establish that defendant had grounds to be aware of the risk his driving and drinking while intoxicated presented to others.”). The trial judge’s careful consideration of this issue does not suggest an abuse of discretion which resulted in an “arbitrary or irrational” ruling. Id. Accordingly, I would affirm the trial court’s decision.