{ "id": 8523656, "name": "STATE OF NORTH CAROLINA v. FRANKLIN HASKINS, aka FRANK HASKINS", "name_abbreviation": "State v. Haskins", "decision_date": "1991-12-17", "docket_number": "No. 919SC22", "first_page": "675", "last_page": "684", "citations": [ { "type": "official", "cite": "104 N.C. App. 675" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "522 F.Supp. 935", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3333778 ], "year": 1981, "pin_cites": [ { "page": "955", "parenthetical": "admissibility of other crimes evidence \"can be upheld if it was proper for any purpose\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/522/0935-01" ] }, { "cite": "398 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 12", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527206 ], "year": 1990, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0012-01" ] }, { "cite": "340 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "426" } ], "opinion_index": 0 }, { "cite": "316 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703969 ], "year": 1986, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0127-01" ] }, { "cite": "102 L.Ed. 2d 235", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "pin_cites": [ { "parenthetical": "quoting State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986)" } ], "opinion_index": 0 }, { "cite": "488 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494036 ], "year": 1988, "pin_cites": [ { "parenthetical": "quoting State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986)" } ], "opinion_index": 0, "case_paths": [ "/us/488/0900-01" ] }, { "cite": "365 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "593", "parenthetical": "quoting State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986)" }, { "page": "593" } ], "opinion_index": 0 }, { "cite": "321 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567442 ], "year": 1988, "pin_cites": [ { "page": "603", "parenthetical": "quoting State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0594-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "890" }, { "page": "890", "parenthetical": "proper for trial court to conduct voir dire hearing to determine whether evidence offered pursuant to Rule 404(b) is admissible" }, { "page": "893" }, { "page": "893" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "303" }, { "page": "303" }, { "page": "307" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "298 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "374", "parenthetical": "defining substantial evidence as \"such evidence as a reasonable mind might accept as adequate to support a conclusion\"" } ], "opinion_index": 0 }, { "cite": "307 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562705 ], "year": 1983, "pin_cites": [ { "page": "454", "parenthetical": "defining substantial evidence as \"such evidence as a reasonable mind might accept as adequate to support a conclusion\"" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0452-01" ] }, { "cite": "59 L.Ed.2d 472", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "440 U.S. 920", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6234692, 6238056, 6236425, 6235817, 6238413, 6236782, 6234990, 6237650, 6237107, 6238805, 6235290, 6236126, 6234398 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/440/0920-02", "/us/440/0920-11", "/us/440/0920-07", "/us/440/0920-05", "/us/440/0920-12", "/us/440/0920-08", "/us/440/0920-03", "/us/440/0920-10", "/us/440/0920-09", "/us/440/0920-13", "/us/440/0920-04", "/us/440/0920-06", "/us/440/0920-01" ] }, { "cite": "582 F.2d 898", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 858084 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "913" }, { "page": "913" }, { "page": "911-12, n.15", "parenthetical": "discussing the need for varying degrees of similarity between extrinsic act and charged crime, depending on Rule 404(b) purpose for which extrinsic act evidence is offered" } ], "opinion_index": 0, "case_paths": [ "/f2d/582/0898-01" ] }, { "cite": "347 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "317 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773087 ], "year": 1986, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0417-01" ] }, { "cite": "401 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "110" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528003 ], "year": 1991, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0593-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "54" }, { "page": "56" }, { "page": "55", "parenthetical": "\"where the doing of the act is in dispute\" motive is always at issue" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "278-79" }, { "page": "281" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "485 U.S. 681", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 14005 ], "weight": 10, "year": 1988, "pin_cites": [ { "page": "691" }, { "page": "783-84" }, { "page": "689-90" }, { "page": "782-83" }, { "page": "690" }, { "page": "782" }, { "page": "690" }, { "page": "782-83", "parenthetical": "trial court must determine \"whether the jury could reasonably find ... by a preponderance of the evidence that defendant committed the extrinsic act\"" }, { "page": "690" }, { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/us/485/0681-01" ] } ], "analysis": { "cardinality": 765, "char_count": 20234, "ocr_confidence": 0.776, "pagerank": { "raw": 5.37646691303457e-07, "percentile": 0.943902134834888 }, "sha256": "98c2b41e00a2316bd6113b699d02b6fe1c6e997405c2212163cd6103006915d2", "simhash": "1:16afc17605259fdb", "word_count": 3346 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge EAGLES concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FRANKLIN HASKINS, aka FRANK HASKINS" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant appeals from judgments entered 26 July 1990, which judgments were based on jury verdicts convicting defendant of two counts of robbery with a dangerous weapon, N.C.G.S. \u00a7 14-87 (1986).\nThe evidence in this case is conflicting. The State\u2019s evidence tended to establish that on 25 February 1989 at approximately 10:45 p.m., an armed robbery occurred at the 7-11 Food Store (the 7-11) on Roxboro Road in Oxford, North Carolina. State\u2019s witnesses Jean Hobgood (Hobgood) and William Vaughan (Vaughan) were both working in the 7-11 that evening. Hobgood testified that two men entered the store, and that one of them, whom Hobgood identified as the defendant, shopped around while the other one, later identified as Kenneth Lyons (Lyons), stood at the door. A customer who was already in the store completed his purchases and left. According to Hobgood, the defendant then brought several items to the counter and after Hobgood rang the items up, defendant pointed a gun at Hobgood and demanded money. Hobgood testified that the defendant was in her presence for approximately fifteen to twenty minutes, that the store was well lighted, and that nothing covered the defendant\u2019s face. Vaughan testified that he had been outside the store loading groceries and that when he reentered, Lyons pointed a gun at Vaughan and demanded Vaughan\u2019s watch and ring, which Vaughan gave him. Vaughan also testified that he saw a man whom he later identified as the defendant pointing a gun at Hobgood while she emptied the contents of the cash register into a paper bag. Vaughan testified that from where he was standing he could see the defendant\u2019s side. Both Hobgood and Vaughan identified the defendant and Lyons from a photographic lineup.\nThe State also presented William King (King), who testified, over defendant\u2019s objection, that while on his way to make a night deposit at about 9:15 that same evening, he was shot and wounded by a man who attempted to rob him at the Southern National Bank in Butner. King testified that after he drove up to the night depository at the bank, he heard someone outside the driver\u2019s side window of his truck yell, \u201cThis is a holdup!\u201d King turned and saw a man standing with a \u201cbig pistol\u201d against the truck glass. King testified that he hesitated briefly, and then as he was reaching for the bag which contained his money, the perpetrator fired a shot at King through the driver\u2019s side window, hitting and injuring King. King testified that he immediately jerked the truck into gear and sped away. According to King, no one else was present at the bank during the incident. King later identified the defendant in a photographic lineup as the man who attempted to rob him at the bank. The trial court instructed the jury that it could consider King\u2019s testimony only for the purposes of showing the identity and/or motive of the perpetrator of the 7-11 robbery. The court expressly rejected the other purposes for which the prosecutor sought to introduce King\u2019s testimony under Rule 404(b), specifically, intent, plan, scheme, system and design, and stated in response to the prosecutor\u2019s offer, \u201cDon\u2019t try to do the overkill . . . I will not allow it for that. That sounds too much like, has the propensity to commit armed robbery.\u201d\nThe defendant presented the testimony of Kenneth Lyons. Lyons, who had entered a guilty plea and had been sentenced at the time of trial, testified that there were two people involved in the robbery of the 7-11 \u2014 himself and a man named Darrell Wayne. Lyons testified that the defendant was not involved. Lyons had previously implicated the defendant in the 7-11 robbery, and explained at trial that the reason that he had done so was because police officers told Lyons that the defendant had \u201cratted on\u201d Lyons with regard to other robberies the two men allegedly had committed. Lyons testified that when he learned that no such statements had ever been made by the defendant, he decided to testify on defendant\u2019s behalf in order to pay defendant back for Lyons\u2019 mistake (i.e., falsely implicating defendant in the 7-11 robbery). On rebuttal, State\u2019s witness Durham police officer Robert Simmons, the investigator who interviewed Lyons, denied telling Lyons that defendant had made a statement against Lyons, and testified that he had never heard of Darrell Wayne prior to Lyons\u2019 testimony at trial.\nThe determinative issues are I) whether evidence of a prior alleged crime, an attempted robbery and shooting in Butner, is admissible to show (A) the identity of the perpetrator of the charged crime; or (B) the motive for defendant\u2019s alleged commission of the charged crime; and II) if admissible for only one of the two purposes, whether defendant is entitled to a new trial.\nI\nThe admissibility of \u201cother crimes, wrongs, or acts\u201d evidence is determined through an application of Rules of Evidence 404(b), 402, 401, 403, 104(b), and 105. See Huddleston v. United States, 485 U.S. 681, 691, 99 L.Ed.2d 771, 783-84 (1988). That is, the evidence must be offered for a proper purpose, must be relevant, must have probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant, and, if requested, must be coupled with a limiting instruction. A proper application of these rules balances the State\u2019s interest in presenting the evidence of \u201cother crimes, wrongs, or acts\u201d against the possibility of unfair prejudice to the defendant.\nPurpose\n\u201c[0]ther crimes, wrongs, pr acts\u201d evidence is admissible only if offered for a proper purpose. A proper purpose includes, among other things, proof of a defendant\u2019s \u201cmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.\u201d N.C.G.S. \u00a7 8C-1, Rule 404(b) (1988). Offering evidence solely to show \u201cthat the defendant has the propensity to commit an offense of the nature of the crime charged\u201d does not qualify as a proper purpose. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). If challenged, the party offering \u201cother crimes, wrongs, or acts\u201d evidence must specify the purpose or purposes for which the evidence is offered. See State v. White, 101 N.C. App. 593, 600, 401 S.E.2d 106, 110 (1991).\nRelevancy\nEven if offered for a proper purpose under Rule 404(b), evidence of prior \u201ccrimes, wrongs, or acts\u201d must be relevant, and such evidence is not relevant unless it \u201creasonably tends to prove a material fact in issue\u201d other than the character of the accused. State v. Johnson, 317 N.C. 417, 425, 347 S.E.2d 7, 12 (1986); N.C.G.S. \u00a7 8C-1, Rule 401 (1988). Furthermore, the \u201cother crimes, wrongs, or acts\u201d evidence 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. See Huddleston, 485 U.S. at 689-90, 99 L.Ed.2d at 782-83. In this regard, the trial court is required to make an initial determination pursuant to Rule 104(b) of whether there is sufficient evidence that the defendant in fact committed the extrinsic act. See United States v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978), cert. denied, 440 U.S. 920, 59 L.Ed.2d 472 (1979). The judge is not required to be convinced beyond a reasonable doubt, by clear and convincing evidence, or by a preponderance of the evidence, that defendant committed the extrinsic act. See Huddleston, 485 U.S. at 690, 99 L.Ed.2d at 782; Beechum, 582 F.2d at 913. Rather, as a prerequisite to admitting the evidence, the trial court must find the evidence to be substantial. State v. Williams, 307 N.C. 452, 454, 298 S.E.2d 372, 374 (1983) (defining substantial evidence as \u201csuch evidence as a reasonable mind might accept as adequate to support a conclusion\u201d); see also Huddleston, 485 U.S. at 690, 99 L.Ed.2d at 782-83 (trial court must determine \u201cwhether the jury could reasonably find ... by a preponderance of the evidence that defendant committed the extrinsic act\u201d); State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876, 890 (1991). If the proponent\u2019s evidence is not substantial, the trial court must, if the evidence has been presented in the presence of the jury, instruct the jury to disregard the evidence. Huddleston, 485 U.S. at 690, 99 L.Ed.2d at 783; see also N.C.G.S. \u00a7 8C-1, Rule 104(c) (1988) (hearings on admissibility of evidence shall be conducted out of the hearing of the jury when the interests of justice require); Stager, 329 N.C. at 303, 406 S.E.2d at 890 (proper for trial court to conduct voir dire hearing to determine whether evidence offered pursuant to Rule 404(b) is admissible).\nUnfair Prejudice\nAlthough offered for a proper purpose and relevant, the evidence may nonetheless be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice. N.C.G.S. \u00a7 8C-1, Rule 403 (1988). The question of what evidence should be excluded under Rule 403 is a matter left to the sound discretion of the trial court. Coffey, 326 N.C. at 281, 389 S.E.2d at 56.\nLimiting Instructions\nIf after making the foregoing determinations the trial court concludes that the \u201cother crimes, wrongs, or acts\u201d evidence is admissible, the court must, upon request, instruct the jury that the evidence is to be considered only for the purposes for which it was admitted. N.C.G.S. \u00a7 8C-1, Rule 105 (1988).\nA\nIdentity\nThe State specifically offered evidence of the uncharged attempted robbery and shooting in Butner for the purpose of showing the identity of the perpetrator of the 7-11 robbery in Oxford. Identity is a proper purpose within the meaning of Rule 404(b).\nEvidence of the attempted robbery in Butner offered to identify the defendant as a perpetrator of the Oxford robbery is relevant only if identity is at issue in the Oxford trial and there is substantial evidence that the defendant indeed attempted the robbery in Butner. To be relevant, there must also be \u201csome unusual facts present in both crimes . . . [indicating] that the same person committed both crimes.\u201d State v. Green, 321 N.C. 594, 603, 365 S.E.2d 587, 593, cert. denied, 488 U.S. 900, 102 L.Ed. 2d 235 (1988) (quoting State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986)). Although it is not necessary that there be \u201cbizarre and unique signature elements common to the past crimes and the crimes\u201d the State presently seeks to prove, the similarities between the crimes must support \u201cthe reasonable inference that the same person committed both the earlier and the later crimes.\u201d Id. at 604, 365 S.E.2d at 593. In addition, the prior crime must not be \u201cso remote [in time] as to have lost its probative value.\u201d Stager, 329 N.C. at 307, 406 S.E.2d at 893.\nHere, the identity of the perpetrator of the 7-11 robbery was at issue. Although Hobgood and Vaughan identified the defendant as one of the two perpetrators of the 7-11 robbery, Lyons testified that a man named Darrell Wayne, not the defendant, committed the robbery with him. Thus, the identity of the perpetrator was the primary issue at trial. There is also substantial evidence in the record that defendant attempted the robbery and committed the shooting in Butner. William King, the victim of the Butner incident, positively identified the defendant as the perpetrator and testified at trial to that effect.\nThe State, however, has failed to show the necessary degree of similarity between the attempted robbery in Butner and the 7-11 robbery in Oxford. Specifically, there are not sufficient unusual facts present in both crimes which would support a reasonable inference that the same person committed both the Butner crime and the Oxford crime. There is no evidence in the record that the method used by the perpetrator of the Butner incident was sufficiently similar to the method used to commit the robbery of the 7-11 in Oxford. The crimes occurred in different towns. Moreover, the record reveals that the Butner incident occurred on the deserted premises of a bank which was closed, involved gratuitous violence, and was committed by only one perpetrator. The robbery in Oxford was of a 7-11 food store which was open for business with customers present, no shooting took place, and two perpetrators were involved. We reject the State\u2019s contention that the fact that in both crimes neither perpetrator wore a mask, or that both perpetrators yelled a demand for money, supports a reasonable inference that the same person committed both the earlier and the later crimes. Accordingly, the evidence of the crime in Butner has no relevance with regard to proof of the identity of the 7-11 perpetrator, and is therefore inadmissible for this purpose.\nB\nMotive\nThe State also specifically offered evidence of the attempted robbery and shooting in Butner for the purpose of showing the motive for defendant\u2019s alleged commission of the 7-11 robbery. Motive is a proper purpose within the meaning of Rule 404(b).\nEvidence of the attempted robbery in Butner offered to show the perpetrator\u2019s motive for committing the robbery in Oxford is relevant only if motive is at issue in the trial and there is substantial evidence that defendant attempted the Butner robbery. When determining the relevancy of other crimes evidence offered to prove defendant\u2019s motive, the degree of similarity between the uncharged and the charged crimes is considerably less important than when such evidence is offered to prove identity. See Beechum, 582 F.2d at 911-12, n.15 (discussing the need for varying degrees of similarity between extrinsic act and charged crime, depending on Rule 404(b) purpose for which extrinsic act evidence is offered). Also, \u201cremoteness in time is less significant when the prior conduct is used to show . . . motive . . . ; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.\u201d Stager, 329 N.C. at 307, 406 S.E.2d at 893. It is required, however, that the other crimes evidence reveal some motive for the commitment of the crime charged.\nBecause the defendant denied his participation in the 7-11 robbery in Oxford, motive was at issue in the trial. See Coffey, 326 N.C. at 280, 389 S.E.2d at 55 (\u201cwhere the doing of the act is in dispute\u201d motive is always at issue). As noted earlier, there was also substantial evidence in the record that there was an attempted robbery and shooting in Butner and that defendant was the actor. Furthermore, the fact that defendant\u2019s attempt to obtain money in Butner was unsuccessful tends to show a motive for defendant\u2019s commission of the 7-11 robbery some two hours later.\nMoreover, in light of the strong evidence of defendant\u2019s guilt in the form of positive eyewitness identification of defendant by both victims of the 7-11 robbery in Oxford, we fail to see any abuse of discretion in the trial court\u2019s determination that the probative value of the Butner incident was not substantially outweighed by the danger of unfair prejudice to the defendant. In this regard, the record reveals that the trial court did instruct the jury that the extrinsic evidence was to be considered only for the purposes for which it was admitted. Accordingly, the trial court did not err in admitting evidence of the Butner shooting and attempted robbery on the issue of defendant\u2019s motive for the 7-11 robbery in Oxford.\nII\nThis Court has not explicitly addressed the issue of prejudice to defendant when other crimes evidence is admitted for multiple purposes and, on appeal, the reviewing court determines that the evidence was improperly admitted for one of these purposes. This Court has, however, without specifically addressing the issue, held that there was no prejudicial error where at least one of the two purposes for which the prior act evidence was admitted was correct. State v. Davis, 101 N.C. App. 12, 18, 398 S.E.2d 645, 649 (1990); see also United States v. Billups, 522 F.Supp. 935, 955 (E.D. Va. 1981) (admissibility of other crimes evidence \u201ccan be upheld if it was proper for any purpose\u201d). Although it is error to admit other crimes evidence for a purpose not supported in the evidence, the error cannot prejudice defendant when the same other crimes evidence is admitted for a purpose which is supported in the evidence. See N.C.G.S. \u00a7 15A-1443(a) (1988) (to establish prejudicial error, defendant must show that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial\u201d). Accordingly, the admission of the other crimes evidence in this case for the improper purpose of proving identity does not entitle the defendant to a new trial in light of the fact that the other crimes evidence was simultaneously properly admitted for the purpose of proving motive.\nNo error.\nChief Judge HEDRICK and Judge EAGLES concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Douglas A. Johnston, Assistant Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by M. Patricia DeVine, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRANKLIN HASKINS, aka FRANK HASKINS\nNo. 919SC22\n(Filed 17 December 1991)\n1. Evidence and Witnesses \u00a7 287 (NCI4th)\u2014 other crimes \u2014 admissibility\nEvidence of other crimes, wrongs or acts must be offered for a proper purpose, must be relevant, must have probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant, and, if requested, must be coupled with a limiting instruction. The party offering the evidence must, if challenged, specify the purpose or purposes for which the evidence is offered. The evidence is relevant only if the jury can conclude by a preponderance of the evidence that the extrinsic act occurred and that defendant was the actor, and the trial court is required to make an initial determination of whether there is sufficient evidence that the defendant in fact committed the extrinsic act. Finally, the question of what evidence should be excluded because its probative value is outweighed by the danger of unfair prejudice is left to the discretion of the trial court. N.C.G.S. \u00a7 8C-1, Rules 104(b), 105, and 401-404(b).\nAm Jur 2d, Evidence \u00a7\u00a7 320, 321, 333.\n2. Evidence and Witnesses \u00a7 369 (NCI4th)\u2014 armed robbery \u2014 evidence of another offense \u2014not admissible for identity\nEvidence of a prior attempted robbery and shooting was not admissible in an armed robbery prosecution to show identity where the State failed to show the necessary degree of similarity between the robberies. Specifically, there were not sufficient unusual facts present in both crimes which would support a reasonable inference that the same person committed both crimes.\nAm Jur 2d, Evidence \u00a7 322.\n3. Evidence and Witnesses \u00a7 369 (NCI4th)\u2014 armed robbery\u2014 evidence of another offense \u2014admissible for motive\nEvidence of a prior attempted robbery and shooting .was admissible in an armed robbery prosecution to show motive where motive was in issue because defendant denied his participation in the robbery; there was substantial evidence that there was an attempted robbery and shooting and that defendant was the actor; the fact that defendant was unsuccessful in the prior attempt to obtain money tends to show a motive for defendant\u2019s commission of the robbery some two hours later; there was no abuse of discretion in the determination that the probative value of the prior incident was not outweighed by the danger of unfair prejudice in light of the strong evidence of defendant\u2019s guilt in the form of positive eyewitness identification of defendant by both victims of the robbery; and the court instructed the jury that the extrinsic evidence was to be considered only for the purposes for which it was admitted.\nAm Jur 2d, Evidence \u00a7 325.\n4. Evidence and Witnesses \u00a7 287 (NCI4th)\u2014 other crimes\u2014 admitted for multiple purposes \u2014one purpose proper and one improper \u2014no prejudice\nThere was no prejudice in an armed robbery prosecution where the court admitted evidence of a prior attempted robbery to show identity and motive, but only the motive purpose was proper.\nAm Jur 2d, Evidence \u00a7\u00a7 322, 325.\nAPPEAL by defendant from judgments entered 26 July 1990 in GRANVILLE County Superior Court by Judge Richard B. Allsbrook. Heard in the Court of Appeals 7 October 1991.\nLacy H. Thornburg, Attorney General, by Douglas A. Johnston, Assistant Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by M. Patricia DeVine, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0675-01", "first_page_order": 703, "last_page_order": 712 }