State v. Withers , 50 N.C. App. 547 ( 1981 )

CLARK, Judge

The defendant makes numerous assignments of error which are grouped into several arguments relating to the admission in evidence of his prior criminal record. The record on appeal reveals that Officer McKinney and other officers testified that defendant stated to them he was a convicted felon, and that he had a shoot-out with a bunch of cops in Greensboro. Attorney L. G. Gordon, Jr., testified that on the night in question he received a telephone call from the defendant, who said he was in a sheriffs office, asked why there was no record of his conviction in a Greensboro court, said that he had a .357 magnum and was going to kill him (Gordon), and that he wanted to find Judge Kivett. Gordon also testified that he represented defendant when he was tried and convicted in Greensboro on the charge of assault on a police officer by pointing a gun.

Defendant makes the argument that this evidence of prior conviction was inadmissible under the general rule that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. Defendant relies on State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954), for the general rule and the eight listed exceptions to the general rule, and contends that the evidence of his prior conviction was erroneously admitted because the evidence of the other crime does not fall within any of the eight exceptions. We do not accept defendant’s restrictive interpretation of the McClain decision. In the recent decision, State v. Small, 301 N.C. 407, 272 S.E. 2d 128, 144 (filed 2 December 1980) Justice Exum cited McClain to support the following rule of law: “It is, of course, error for the state ‘in a prosecution for a particular crime [to] offer evidence tending to show that the accused has committed another distinct, independent, or separate offense’ when the sole purpose of the evidence is, generally, to show that the defendant is a bad person and, therefore, predisposed to commit criminal acts generally.” (Emphasis added.)

We consider the eight listed exceptions to the general rule in McClain to be illustrative of circumstances wherein evidence of a separate crime is relevant on the issue of guilt and not limited to the purpose of showing a predisposition to commit the crime charged. Simply stated, the rule is that evidence of the commission of another offense is admissible to prove some other fact logically relevant to the issue of guilt. See 1 Stansbury’s N.C. Evidence § 91 (Brandis rev. 1973); Sizemore, Character Evidence in Criminal Cases in North Carolina, 7 Wake Forest L. Rev. 17, 31 (1970).

In the case before us evidence of the prior conviction of the defendant for a crime of violence in Greensboro was clearly relevant to the issue of guilt. All the evidence relating to the other crime was based on the admission of such crime by defendant made immediately before or during the commission of the crimes and tended to show some reason for his threats and assaults. The elimination of this evidence would have left the jury without any explanation of or reason for the defendant’s bizarre criminal conduct. We find no merit in defendant’s argument.

We would rate the State’s evidence, which included numerous eyewitnesses and tape recordings of defendant’s admission, as overwhelming. Under the circumstances the defendant had a difficult burden in showing prejudicial error. It is not reasonably possible that a different result would have been reached at trial if the assigned errors had not been committed. See G.S. 15A-1443. We find that defendant had a fair trial free from prejudicial error.

No error.

Judges Hedrick and Whichard concur.