State v. Wilkerson

• Decision Date: 05 February 2002
• Docket Number: No. COA00-1090.,COA00-1090.
• Parties: STATE of North Carolina v. Ronnie Hayze WILKERSON.
• Court: North Carolina Court of Appeals

559 S.E.2d 5

148 NC App. 310

STATE of North Carolina v. Ronnie Hayze WILKERSON.

No. COA00-1090.

Court of Appeals of North Carolina.

February 5, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Jeffrey M. Seigle, for the State.

Lisa Miles, Durham, for defendant-appellant.

TYSON, Judge.

I. Facts

The State's evidence at trial tended to establish that on 25 January 1995, Eunice Tolar ("Tolar") purchased cocaine from Ronnie Hayze Wilkerson ("defendant"), for the Eden Police Department, at 133 Roosevelt Street, Eden, North Carolina.

On 26 January 1995, a search warrant was executed at 133 Roosevelt Street. During the search, a test tube containing cocaine was found in defendant's pocket. Cocaine was also found in the commode and a crack pipe was found in a bedroom.

Officer Reese Pyrtle ("Officer Pyrtle"), of the Eden Police Department, testified that he assisted with the search of the residence and that he had previously searched the residence at 133 Roosevelt Street pursuant to a search warrant on 15 June 1994. Officer Pyrtle testified that he found cocaine inside a test tube in the kitchen trash can and that defendant was found in the kitchen when he arrived to conduct the 1994 search. After voir dire and withdrawal of defendant's objection, Officer Pyrtle read the following statement made by defendant on 15 June 1994 to the jury:

I purchased eighty dollars worth of powder cocaine ... then I decided to cook the powder up into crack. When I was cooking the powder into crack that is when the officers came up with the search warrant. I don't sell drugs. I buy powder cocaine because you get more cocaine for your money.

Special Agent Windy Long ("Agent Long"), with the North Carolina Bureau of Investigation, testified that on 11 October 1994 and 12 October 1994, she made undercover purchases of crack cocaine from defendant at 133 Roosevelt Street.

After both Pyrtle and Long testified, Shelby Newcomb, the Deputy Clerk of Court, testified that defendant had prior convictions for: (1) possession of cocaine on 15 June 1994, (2) possession with intent to sell or deliver cocaine on 11 October 1994, and (3) sale and delivery of cocaine on 11 October 1994.

Defendant did not testify or offer any evidence at trial. The jury found defendant guilty of possession with intent to sell or deliver cocaine and trafficking in cocaine. Defendant was sentenced to a minimum of thirty-five months and a maximum of forty-two months for trafficking in cocaine and a minimum of ten months and maximum of twelve months for possession with intent to sell or deliver to be served at the expiration of the previous sentence. Defendant's retained counsel failed to perfect his appeal. This Court granted certiorari upon petition of his present counsel. We hold there was no error.

II. Issues

The issues presented are: (1) whether the trial court erred in admitting testimony regarding defendant's prior drug activity and prior drug convictions and (2) whether the trial court committed plain error in its comment upon the evidence.

III. Admission of Prior Drug Activity and Prior Convictions

Defendant contends that he was unfairly prejudiced by the admission of the underlying facts and circumstances of his prior drug activities and subsequent convictions. We disagree.

Defendant's reliance on Rule 609 of the Rules of Evidence is misplaced. Rule 609 governs the use of evidence of criminal convictions for purposes of impeachment. "When a defendant appears as a witness at trial, evidence of the defendant's past convictions may be admissible for the purpose of attacking the defendant's credibility as a witness. Such evidence, however, is not admissible as substantive evidence to show the defendant committed the crime charged." State v. McEachin, 142 N.C.App. 60, 69, 541 S.E.2d 792, 799 (2001) (citations omitted); see also State v. Holston, 134 N.C.App. 599, 606, 518 S.E.2d 216, 221 (1999) ("Rule 609 allows a defendant's prior convictions to be offered into evidence when he takes the stand and thereby places his credibility at issue.") (emphasis added).

Defendant did not testify or offer any evidence at trial and the evidence of his prior convictions was not being offered for purposes of impeachment under Rule 609. Instead, the State offered the evidence for admission under N.C. Gen.Stat. § 8C-1, Rule 404(b) (1999), which states:

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.

This rule 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 in original). Therefore, evidence of bad conduct and prior crimes is admissible under Rule 404(b) "as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime." State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 853 (1995). A prior bad act or crime is sufficiently similar to warrant admissibility under Rule 404(b) if there are "some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes." State v. Sokolowski, 351 N.C. 137, 150, 522 S.E.2d 65, 73 (1999) (citations omitted). The similarities between the two situations need not "rise to the level of the unique and bizarre" but "must tend to support a reasonable inference that the same person committed both the earlier and later acts." Id.

Even where such evidence is relevant, the ultimate test of its admissibility is whether its probative value is substantially outweighed by the danger of unfair prejudice. See N.C. Gen.Stat. § 8C-1, Rule 403 (1999); State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995); State v. Everhardt, 96 N.C.App. 1, 384 S.E.2d 562 (1989). "Evidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree." Coffey, 326 N.C. at 281, 389 S.E.2d at 56. Whether to admit or exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, and the trial court's decision to admit such evidence will only be disturbed upon a showing of abuse of discretion. State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992).

In the present case, defendant was charged with possession with intent to sell or deliver cocaine and trafficking in cocaine. Intent and knowledge are elements of these offenses which must be proven by the State. See N.C. Gen.Stat. §§ 90-95(a)(1) and (h)(3) (1999). "Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused." State v. McClain, 240 N.C. 171, 175, 81 S.E.2d 364, 366 (1954).

Officer Pyrtle testified to the underlying facts and circumstances which led to defendant's conviction for possession of cocaine on 15 June 1994. The trial court gave a proper limiting instruction to the jury that defendant's statement from 15 June 1994 is to be considered only as evidence of intent and knowledge.

After the trial court denied defendant's request to suppress, Agent Long testified to the underlying facts and circumstances which led to defendant's convictions for possession with intent to sell or deliver cocaine and for sale and delivery of cocaine on 11 October 1994. The trial court held that the testimony was admissible under Rule 404(b) to show intent and knowledge and was not unfairly prejudicial under Rule 403. The trial court again instructed the jury to consider this evidence for intent or knowledge and not to prove the offense for which defendant was being tried.

We conclude that the other crimes were sufficiently similar: (1) all occurred at 133 Roosevelt Street, (2) defendant was present, (3) all involved cocaine, and (4) the prior convictions occurred within a year of the present offenses. We also conclude that the testimony of the underlying facts and circumstances leading to defendant's prior convictions was relevant to show intent to sell and knowing possession of cocaine.

Our courts have held that it is not error to admit the underlying facts and circumstances that formed the basis of defendant's prior convictions. See State v. Barnett, 141 N.C.App. 378, 540 S.E.2d 423 (2000), disc. review denied, 353 N.C. 527, 549 S.E.2d 552 (2001); State v. Cinema Blue of Charlotte, Inc., 98 N.C.App. 628, 392 S.E.2d 136 (1990); State v. Winslow, 97 N.C.App. 551, 389 S.E.2d 436 (1990); State v. Rosario, 93 N.C.App. 627, 379 S.E.2d 434 (1989).

Our courts have also held that it is not error to admit the fact of defendant's prior convictions. See State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000); State v. McAllister, 138 N.C.App. 252, 530 S.E.2d 859 (2000); State v. Fuller, 138 N.C.App. 481, 531 S.E.2d 861, disc. review denied, 353 N.C. 271, 546 S.E.2d 120 (2000); State v. Miller, 142 N.C.App. 435, 543 S.E.2d 201 (2001); State v. Grice, 131 N.C.App. 48, 505 S.E.2d 166 (1998); State v. Hall, 85 N.C.App. 447, 355 S.E.2d 250 (1987).

Our courts have also held that it is proper to admit both: (1) testimony of the underlying facts and circumstances and (2) that defendant had been convicted for the bad act under Rule 404(b). See State v. Hipps, 348 N.C. 377, 501 S.E.2d 625 (1998); State v. Barkley, 144 N.C.App. 514, 551 S.E.2d 131 (2001).

In Hipps, defendant was indicted...