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ELMORE, Judge concurring in part, dissenting in part.
I agree with the majority that the officer’s search of defendant was lawful and therefore the evidence of that search was properly admitted. And while it is unlikely to be more than a single stone cast against a wave of increasing precedent, I still must disagree with the Court’s assessment that defendant’s previous criminal activity was admissible under Rule 404(b).
The Court holds that the trial court did not err in admitting evidence of defendant’s previous sale of cocaine to an undercover officer in his trial for possession with intent to sell cocaine. Undoubtedly, this is in part due to the fact that for longer than this defendant has been alive our appellate courts have sanctioned the admissibility of evidence of prior drug related offenses in trials for a drug related offense. See State v. Montford, 137 N.C. App. 495, 501, 529 S.E.2d 247, 252 (stating, “in drug cases, evidence of other drug violations is often admissible to prove many of [Rule 404(b)’s] purposes.”) (citing State v. Richardson, 36 N.C. App. 373, 375, 243 S.E.2d 918, 919 (1978)), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000). In addition, it could be due to the fact that evidence of a prior drug crime, being relevant in
*86 almost any drag related offense where intent is an element, is admissible “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, 64 (1990). Yet neither of these concessions are the least bit alarming when appropriately balanced against the trial court’s fundamental decision in assessing how much of a defendant’s criminal history comes in to prove an element of the current offense.At the very least, a test of similarity and temporal proximity must be satisfied before a defendant will face the evidence of his prior bad acts in front of the jury.
Where evidence of prior conduct is relevant to an issue other than the defendant’s propensity to commit the charged offense, ‘the ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.’
State v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d 206, 209 (2005) (quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)). Aspects of defendant’s past conduct should only be admitted if the criminal activity defendant is currently on trial for is sufficiently similar to previous activity conducted in the not too distant past and the information would aid the jury in determining defendant’s intent in the current crime. Compare Stevenson, 169 N.C. App. at 800-01, 611 S.E.2d at 209-10 (admitting cocaine evidence meeting these two requirements), with State v. Williams, 156 N.C. App. 661, 577 S.E.2d 143 (2003) (reversing trial court’s admission of prior cocaine sales under 404(b) when it was dissimilar to circumstances of current drug charge). Neither the similarities nor the judgment of temporal proximity satisfy me in this case.
Here, defendant was on trial for possessing cocaine with an intent to sell. On the night of his arrest, defendant was a passenger in a car pulled over in a routine traffic stop. In addition to the traffic offense, the officer saw smoke coming from the car and smelled marijuana. A pat down search of all individuals in the car led to discovery of ten to twelve rocks of cocaine totaling 1.6 grams in a small cylinder in defendant’s possession. The rocks were not individually packaged. To the extent the State found it necessary to show that 1.6 grams is generally indicative of “intent to sale” versus “intent to per
*87 sonally use,” it could have done so without using defendant’s prior crime. It chose not to, however, since seven years prior to this incident, defendant pled guilty to selling 0.82 grams of cocaine in the form of several small rocks to an undercover officer during a hand-to-hand exchange.The State argues, and the trial court found, that since the cocaine in each instance was 1) not individually packaged and 2) of similar amounts — the amount previously sold was 0.82 grams and the amount on trial for intent to sale is 1.6 grams — exceeding a normal dose, then the prior crime was sufficiently similar. Even though the circumstances of the previous offense do not have to be bizarre or unique, there must nonetheless be “some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both.” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-91 (1991) (internal quotations omitted). Pursuant to Rules of Evidence 404(b) and 403, a current drug crime cannot be “unusually” or “particularly” similar to a previous one simply because the amount of cocaine involved in each is “large.” Indeed, the actual amounts of cocaine here are not even close, not to mention the stark dissimilarity in the discovery of the “large” amounts. In addition, the previous crime was seven years prior to the current one; and, at that length of time, the similarities between the two criminal acts should be relatively strong.
Had defendant attempted to sell drugs to an undercover officer, been witnessed potentially selling drugs to another individual, or had closer to 0.82 grams of cocaine on him, the probative value of the prior crime greatly increases. But as it stands now, the only common denominator between the two crimes is that defendant previously sold cocaine and is now charged with selling cocaine. The logical conclusion from that evidence, that defendant has a propensity to sell cocaine, deprives him of a fair trial.
I would hold that the trial court abused its discretion by allowing in substantial evidence of defendant’s prior crime for selling cocaine when the similarities between the crimes were few and the temporal proximity insufficient. Given that this was the State’s strongest piece of evidence suggesting intent to sell, I would find the error prejudicial and remand for a new trial.
Document Info
Docket Number: COA05-915
Judges: Steelman, Jackson, Elmore
Filed Date: 8/1/2006
Precedential Status: Precedential
Modified Date: 11/11/2024