State v. Alston , 1985 N.C. App. LEXIS 3437 ( 1985 )

MARTIN, Judge.

Defendant assigns error to certain testimony elicited on rebuttal by the State. The State on rebuttal introduced evidence that defendant had been convicted in 1970, 1979, and 1980 of larceny of an automobile. The rebuttal evidence was admitted by the court “for no other purpose than as it might bear upon the defendant’s intent on July 30, 1983.” Defendant argues that this evidence had no logical relevancy to the issue of defendant’s intent on 30 July 1983, and the trial court committed prejudicial error in allowing its admission. We find the admission of this evidence to be error, and because we cannot say that the error was harmless to the defendant beyond a reasonable doubt, we hold there must be a new trial.

Among the exceptions to the general rule that evidence of another crime is inadmissible even though the other offense is of the same nature as the crime charged is the “intent” exception.

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). However, evidence of separate criminal activity should be excluded when its only logical relevance “is to suggest defendant’s propensity or predisposition to commit the type of offense with which he is presently charged.” State v. Hunt, 305 N.C. 238, 246, 287 S.E. 2d 818, 823 (1982), quoting, State v. Shane, 304 N.C. 643, 654, 285 S.E. 2d 813, 820 (1982), cert. denied, --- U.S. ---, 80 L.Ed. 2d 134, 104 S.Ct. 1604 (1984).

We believe the evidence of defendant’s prior criminal conduct in this case at best “suggested] defendant’s propensity or predisposition to commit the type of offense with which he is presently charged.” Id. Defendant’s convictions of automobile larceny three, four, and fourteen years earlier had no concrete bearing on or logical tendency to establish the requisite mental state on 30 July 1983. The only logical relevancy these prior convictions had to the crime for which defendant was being tried was that they were “similar” and arguably, albeit attenuated, “not too far removed from the crime with which defendant was charged,” a standard of admission expressly disavowed by our Supreme Court in State v. Byrd, 309 N.C. 132, 141, 305 S.E. 2d 724, 731 (1983).

Because the jury was permitted to find the requisite mental intent to permanently deprive the owner of his vehicle from defendant’s prior instances of larceny, we are precluded from saying the admission of the evidence of these prior crimes was harmless error. We do not discuss the defendant’s other assignments of error as they may not recur at a new trial.

New trial.

Judges Webb and Phillips concur.