State v. Campbell ( 2001 )

GREENE, Judge,

concurring.

I agree with the majority that the trial court did not err by admitting evidence defendant abused the victim on two occasions other than the occasion for which defendant was charged, pursuant to Rule 404(b) of the North Carolina Rules of Evidence. I write separately to address defendant’s argument in his brief to this Court that evidence of these “other crimes, wrongs, or acts” was inadmissable based on its “unreliability.”

Evidence offered for a proper purpose pursuant to Rule 404(b) is admissible only if it is relevant. State v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991), disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992); N.C.G.S. § 8C-1, Rule 402 (1999) (“[e]vidence which is not relevant is not admissible”). Evidence of “other crimes, wrongs, or acts” is relevant “only if the jury can conclude by a preponderance of the evidence that the extrinsic act occurred and that the defendant was the actor.” Haskins, 104 N.C. App. at 679, 411 S.E.2d at 380. Upon a request by the opponent of the evidence, the trial court must, therefore, determine on voir dire “whether there is sufficient evidence that the defendant in fact committed the extrinsic act.”¹ Id. at 679-80, 411 S.E.2d at 380. Evidence the defendant committed the extrinsic act is sufficient to present the evidence to the jury if the evidence is “substantial.” Id. at 680, 411 S.E.2d at 380; see also State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990) (“[substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).

In this case, defendant argues in his brief to this Court that evidence of defendant’s “other crimes, wrongs, or acts” was unreliable because the State charged defendant with crimes based on these acts and subsequently dismissed those charges. Defendant essentially contends the evidence of defendant’s extrinsic acts was inadmissible because the State did not present sufficient evidence the extrinsic acts occurred. To preserve this issue for appeal, defendant was required to object at trial to the admission of the evidence on the ground evidence defendant committed the extrinsic acts was not substantial. As defendant failed to raise this objection before the trial court, this issue is not properly before this Court. See N.C.R. App. P. 10(b)(1).

1 . We note the defendant may request the trial court conduct the voir dire outside the presence of the jury when the interests of justice so require. N.C.G.S. § 8C-1, Rule 104(c) (1999). When the voir dire is conducted in the jury’s presence, however, and the trial court subsequently determines the evidence the defendant committed the extrinsic act is not substantial, the trial court must “instruct the jury to disregard the evidence.” Haskins, 104 N.C. App. at 680, 411 S.E.2d at 380-81.