State v. Ponos

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-968
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. New Hanover County
No. 11 CRS 60934
JOHN NICHOLAS PONOS
Defendant
Appeal by defendant from judgment entered 18 April 2013 by
Judge Arnold O. Jones in New Hanover County Superior Court.
Heard in the Court of Appeals 22 January 2014.
Roy Cooper, Attorney General, by Donna D. Smith, Assistant
Attorney General, for the State.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred for
defendant-appellant.
DAVIS, Judge.
Defendant John Nicholas Ponos (“Defendant”) appeals from a
judgment entered by the trial court based on the jury’s verdict
finding Defendant guilty of obtaining property by false
pretenses. On appeal, Defendant asserts that the trial court
committed prejudicial error by admitting evidence of a
subsequent bad act under North Carolina Rule of Evidence 404(b)
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that was not sufficiently similar to the crime for which he was
charged. After careful review, we hold that Defendant received
a fair trial free from error.
Factual Background
The State’s evidence at trial tended to establish the
following facts: In September 2009, Defendant, a sales manager
at Toyota of Wilmington, met with Reginald Barnes (“Mr.
Barnes”), the owner of Eastern Skateboard Supply, Inc.
(“Eastern”), at Mr. Barnes’s office. Defendant knew Mr. Barnes
because Mr. Barnes had previously bought or leased several
vehicles from Defendant. During this meeting, Defendant asked
Mr. Barnes if he would loan Defendant $20,000 to pay a child
support order. Defendant explained that he had property and
stocks that he could sell but would not be able to sell them
soon enough to pay the child support order. Mr. Barnes agreed
to lend Defendant $20,000 from Eastern if Defendant would sign a
promissory note and write Mr. Barnes a check for $20,000 as
collateral. At the conclusion of the meeting, Mr. Barnes gave
Defendant a check for $20,000. The day after the meeting,
Defendant left a promissory note and another check for $20,000
as collateral at Mr. Barnes’s office.
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After several months went by and Defendant failed to pay
Mr. Barnes back by the agreed upon date, Mr. Barnes told
Defendant that he was going to deposit the check Defendant had
given him as collateral. However, when he attempted to do so in
early April 2010, he learned that Defendant had stopped payment
on the check. Defendant never repaid Mr. Barnes any portion of
the $20,000 loan.
At trial, the State was permitted to introduce evidence
under Rule 404(b) of an incident that occurred in October 2010
in which Defendant went to Rhodes Jewelers to purchase a Rolex
watch. Defendant knew Wayne Rhodes, the co-owner of Rhodes
Jewelers, because Defendant’s father and Mr. Rhodes’s father
used to own businesses on the same block. Because of this
relationship, Mr. Rhodes agreed to sell a Rolex watch to
Defendant for $9,000, which was 10% below the retail price, and
Defendant gave Mr. Rhodes a check for that amount. Several days
later, however, the $9,000 check was returned to Mr. Rhodes
because Defendant had stopped payment on the check.
The jury returned a guilty verdict against Defendant during
the 15 April 2013 Criminal Session of New Hanover County
Superior Court. Defendant was sentenced to ten to twelve months
imprisonment. Defendant gave notice of appeal in open court.
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Analysis
Defendant asserts that the trial court committed
prejudicial error by admitting the evidence that Defendant
stopped payment on the $9,000 check to Rhodes Jewelers based on
his contention that the charged crime and the Rhodes Jewelers
incident were not sufficiently similar. We disagree.
When reviewing a trial court’s decision to admit evidence
of a defendant’s prior or subsequent bad acts, we conduct three
distinct inquiries. See State v. Beckelheimer, 366 N.C. 127,
130, 726 S.E.2d 156, 159 (2012). First, we consider whether the
evidence supports the trial court’s findings of fact and whether
the findings of fact support the conclusions of law. Id.Second, “[w]e review de novo the legal conclusion that the
evidence is, or is not, within the coverage of Rule 404(b).”
Id. Finally, we review the trial court’s determination of
whether the evidence should have been excluded under Rule 403
for abuse of discretion. Id.Defendant challenges the trial court’s findings that (1) in
both instances, he received items of value based on his
inaccurate representations; and (2) Defendant employed the same
modus operandi in both cases. We believe that the evidence
supports these findings.
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Mr. Rhodes testified that Defendant paid for the Rolex with
a personal check and that he would not have sold Defendant the
Rolex if he knew that Defendant was going to stop payment on the
check. Similarly, Mr. Barnes testified that as part of their
agreement Defendant signed a promissory note and gave him a
check for $20,000 as collateral. Mr. Barnes also stated that he
would not have loaned Defendant the money if he thought that the
check Defendant gave him would not be honored.
While Defendant argues that the representations made by him
in the two incidents were not identical, in both incidents
Defendant represented — either explicitly or implicitly — that
the checks he presented would be honored and in both cases the
representations turned out to be false based on his own conduct
in stopping payment on the checks. Likewise, we believe that
the two incidents demonstrate a common scheme of obtaining money
or goods through the issuance of a check and then stopping
payment on the check shortly before the check was about to be
cashed or deposited.
Next, we review de novo the determination of whether the
evidence that Defendant stopped payment on the check to the
jewelry store qualifies as Rule 404(b) evidence. “Rule 404(b)
is ‘a clear general rule of inclusion.’” Beckelheimer, 366 N.C.
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at 130, 726 S.E.2d at 159 (quoting State v. Coffey, 326 N.C.
268, 278, 389 S.E.2d 48, 54 (1990)). Rule 404(b) provides a
non-exclusive list of “numerous purposes for which evidence of
prior acts may be admitted, including ‘motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake, entrapment or accident.’” Id. (quoting N.C. R. Evid.
404(b)).
Because the list in Rule 404(b) is nonexclusive, evidence
may be admitted as long as it is “relevant to any fact or issue
other than the defendant’s propensity to commit the crime.” Id.However, Rule 404(b) evidence must be sufficiently similar and
close in time to the charged crime to be admissible. Id. at
131, 726 S.E.2d at 159. An act is sufficiently similar if there
are unusual facts, which do not have to be unique and bizarre,
present in both the act and the charged crime that would
indicate that the same person committed both acts. Id.Defendant does not argue that the temporal proximity
requirement of Rule 404(b) was unmet. However, he claims that
the two incidents were not sufficiently similar, arguing that
one could not reasonably infer from the circumstances that the
same person committed both acts. We reject Defendant’s
argument.
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In both transactions, Defendant targeted individuals with
whom he had a prior relationship, relied on that relationship to
obtain something of value, and deceived both individuals by not
following through on his part of the bargain by stopping payment
on the checks that he had written to them. Therefore, the two
incidents involved sufficiently similar facts to support a
reasonable inference that the same person committed both acts.
Because we conclude that the Rule 404(b) evidence was
sufficiently similar to the charged crime, our final task is to
review the trial court’s decision to admit the evidence under
Rule 403 for abuse of discretion. See Beckelheimer, 366 N.C. at
130, 726 S.E.2d at 159. Rule 403 provides that relevant
“evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”
N.C. R. Evid. 403.
Our review of the record reveals that the trial court heard
testimony from the Rule 404(b) witnesses and arguments from
counsel outside of the presence of the jury. Judge Jones
weighed the probative value and the prejudicial effect of the
Rule 404(b) evidence before ultimately deciding to admit the
evidence. Furthermore, the trial court took steps to limit any
prejudicial effect of the evidence both by giving a limiting
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instruction at the time the Rule 404(b) evidence was admitted
and by stating the following in its charge to the jury at the
end of the trial:
[E]vidence has been received tending to show
that at an earlier time an act was committed
by the defendant against a different alleged
victim. This evidence was received solely
for the purpose of showing that the
defendant had the intent which is a
necessary element of the crime charged in
this case and that there existed in the mind
of the defendant a plan, scheme, system or
design involving the crime charged in this
case. If you believe this evidence, you may
consider it, but only for the limited
purpose for which it was received. And you
will recall I gave you a limiting
instruction at the time you heard that
evidence. You may not consider it for any
other purpose.
Therefore, we conclude that the trial court did not abuse
its discretion in admitting the Rule 404(b) evidence.
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from error.
NO ERROR.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).