{
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  "name": "STATE OF NORTH CAROLINA v. VERNON FORREST WILSON",
  "name_abbreviation": "State v. Wilson",
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    "judges": [
      "Judges WYNN and WALKER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. VERNON FORREST WILSON"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDefendant appeals from a judgment entered 5 April 1991, which judgment is based on a jury verdict convicting defendant of robbery with a dangerous weapon, N.C.G.S. \u00a7 14-87 (1986).\nThe evidence presented by the State established that on the evening of 28 December 1988, defendant and Andrew Hyde (Hyde), along with two other men, were driving around the Joppa Oaks area of Hillsborough, North Carolina. They discussed the possibility of robbing Chris\u2019s Truck Stop on Highway 86, but decided against it because the truck stop was too crowded. The group instead decided to rob the adjacent Schrift\u2019s Food Mart, a business which, according to Hyde\u2019s testimony, defendant and Hyde had unsuccessfully attempted to break into three weeks earlier by chopping their way through the roof of the b\u00failding with an ax.\nDefendant drove into the parking lot of Chris\u2019s Truck Stop and parked beside a dumpster. Hyde, armed with a .22 caliber rifle with a broken-off stock and wearing a ski mask, entered the store. Buck Owens (Owens), the clerk on duty at the time, testified that the robber pointed the gun at him and demanded money. Owens put approximately $500.00 into a paper bag and gave it to Hyde, who ran out of the store and to the car. Defendant then took the money from Hyde and drove back to Durham where the men lived.\nDefendant and Hyde were indicted on the charge of robbery with a dangerous weapon. Defendant pleaded not guilty, but Hyde agreed to plead guilty and testify against defendant in exchange for a twenty-year sentence. At trial, the court considered the admissibility of numerous armed robberies and break-ins allegedly committed by defendant and Hyde prior to the robbery at Schrift\u2019s. The trial court determined that the probative value of the majority of these prior acts would be substantially outweighed by the danger of unfair prejudice to defendant, and ruled such evidence inadmissible. However, the trial court ruled admissible, over defendant\u2019s objection, testimony regarding the breaking and entering on 8 December 1988 of the Durham residence of Alma Smith (Smith), who had died two weeks earlier. Hyde\u2019s testimony established that defendant, Hyde, and defendant\u2019s brother entered Smith\u2019s house and took a .22 caliber rifle, silver flatware, and a watch. During the course of Hyde\u2019s testimony regarding the break-in at Smith\u2019s residence, the trial court instructed the jury that such evidence was admitted only for the purpose of showing \u201ca plan, scheme, system, or design involving the' crime charged in this case.\u201d\nThe trial court also allowed Hyde to testify that immediately after breaking into Smith\u2019s residence, defendant and Hyde engaged in a conversation regarding the commission of robbery. Hyde testified that defendant stated that he was tired of stealing and having to \u201cspend all day trying to find somebody to buy\u201d the stolen items, and that the men could get cash more easily by robbing a store. Defendant reasoned that, since the men had recovered a gun from the Alma Smith break-in, they should use it to commit armed robbery. According to Hyde, defendant explained how to commit such a robbery, and convinced Hyde that defendant should drive the getaway car and Hyde should actually enter the store.\nDefendant and Hyde decided to rob Ed\u2019s Food Mart, which is located approximately two miles from Schrift\u2019s Food Mart. At the last minute, however, Hyde, who had been drinking heavily, backed out. The men decided instead to rob Ray\u2019s Easy Shop, which was located on the other side of Chris\u2019s Truck Stop. Defendant found a white plastic bag, put it over Hyde\u2019s head, tore out holes for Hyde\u2019s eyes and mouth, and sent Hyde into the store with the .22 caliber rifle stolen from Alma Smith\u2019s residence while defendant waited outside in the car. During Hyde\u2019s testimony, the trial court allowed, over defendant\u2019s objection, the State\u2019s use of two photographs for illustrative purposes. The clerk on duty at Ray\u2019s Easy Shop at the time of the robbery, Joe Teston, testified that at approximately 9:30 p.m. on 8 December 1988, a man with a white plastic bag over his head and a .22 caliber rifle robbed the store of $755.00. After the robbery, Hyde ran back to the car, gave defendant the money, and defendant drove away. Again, defendant objected to this testimony and the trial court instructed the jury that this testimony was admitted solely to show \u201cin the mind of [defendant] a plan, a scheme, a system, or design involving the crime charged.\u201d\nThe trial court also admitted, over defendant\u2019s objection, Hyde\u2019s testimony that on 21 December 1988, while stopped at a traffic light in Durham, defendant and Hyde noticed an unmarked police car beside them. One of the officers stared at the two men. When the light changed, defendant sped away and a chase ensued, during which Hyde threw a ski mask, the .22 caliber rifle, and a .25 caliber pistol out of the car window. After successfully eluding the police, defendant stopped the car and the two men fled on foot. Hyde later returned to the scene of the chase and recovered the .22 caliber rifle. The rifle apparently had struck a telephone pole, breaking off its stock. Officer Kerman Hall, who participated in the chase, later identified the driver of the car as defendant. Defendant did not request and the trial court did not give a limiting instruction with regard to this portion of Hyde\u2019s testimony.\nDefendant presented no evidence at trial. He was convicted of one count of robbery with a dangerous weapon, and the trial court imposed a sentence of twenty years, to be served consecutively with a 120-year sentence imposed on defendant for three convictions in other cases.\nThe issues presented are whether (I) evidence of defendant\u2019s alleged participation in (A) a conversation with Hyde regarding their intended commission of robberies in Hillsborough, (B) the prior uncharged robbery of Ray\u2019s Easy Shop, and (C) the prior attempted break-in of Schrift\u2019s Food Mart, is admissible to show on defendant\u2019s part a plan, scheme, system, or design involving the robbery with which defendant is charged; (II) evidence of defendant\u2019s alleged participation in (A) the break-in of Alma Smith\u2019s residence, and (B) the police chase in Durham, is relevant to any issue in the case; and (III) the trial court abused its discretion by allowing the State to use photographs to illustrate Hyde\u2019s testimony regarding the prior uncharged robbery of Ray\u2019s Easy Shop.\nI\nEvidence of a defendant\u2019s other crimes, wrongs, or acts is admissible only if such evidence (1) is offered for a proper purpose, see N.C.G.S. \u00a7 8C-1, Rule 404(b) (1992); (2) is relevant, see N.C.G.S. \u00a7 8C-1, Rules 401 and 104(b) (1992); (3) has probative value which is not substantially outweighed by the danger of unfair prejudice to the defendant, see N.C.G.S. \u00a7 8C-1, Rule 403 (1992); and (4) if requested, is coupled with a limiting instruction, see N.C.G.S. \u00a7 8C-1, Rule 105 (1992). State v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991), disc. rev. denied, 331 N.C. 287, 417 S.E.2d 256 (1992). Although many purposes are deemed \u201cproper\u201d under Rule 404(b), when the State offers evidence \u201csolely to show that the defendant has the propensity to commit an offense of the nature of the crime charged,\u201d such evidence is not offered for a proper purpose. Id. at 679, 411 S.E.2d at 380. And even if offered for a proper purpose, to qualify as \u201crelevant\u201d the evidence must reasonably tend to prove a material fact in issue other than the character of the accused, and there must exist substantial evidence that the other crime, wrong, or act occurred and that the defendant was the actor. Id. at 679-80, 411 S.E.2d at 380-81.\nA\nDefendant argues that the trial court committed reversible error by allowing Hyde to testify that, prior to their actual commission of the robbery of Schrift\u2019s Food Mart, with which defendant is charged, defendant suggested to Hyde that they commit armed robberies in Hillsborough in order to obtain money. According to defendant, this evidence \u201cserved only to prove that the character of defendant is such that he acted in conformity on the occasion in question.\u201d The State, on the other hand, contends that evidence of the conversation between defendant and Hyde shows on the part of defendant a plan to commit armed robberies in a particular area of Hillsborough.\nAt the outset we note that evidence of defendant\u2019s prior conversation with Hyde constitutes evidence of another \u201ccrime, wrong, or act,\u201d as those terms are used under Rule 404(b). Other crimes evidence is not limited to evidence of other criminal or unlawful acts on the part of the defendant, but also includes any extrinsic conduct or misconduct by the defendant which is relevant to an issue in the case other than to show that the defendant has the propensity for the type of conduct with which he is charged. See State v. Morgan, 315 N.C. 626, 636-37, 340 S.E.2d 84, 91 (1986) (discussing the admissibility of the \u201cextrinsic conduct\u201d of a criminal defendant under Rule 404(b)). Accordingly, evidence of defendant\u2019s alleged conversation with Hyde in which defendant, among other things, discussed the advantages of committing armed robbery over stealing and selling property as well as the manner in which it could be done, constitutes Rule 404(b) evidence of another \u201ccrime, wrong, or act\u201d on the part of defendant.\nIn the instant case, such evidence is admissible for the following reasons. The State offered and the trial court admitted evidence of defendant\u2019s conversation with Hyde for the purpose of showing that defendant had a plan, scheme, system, or design involving the commission of robberies in the Joppa Oaks area of Hillsborough. Such is a proper purpose under Rule 404(b). In addition, the evidence is relevant because (1) the State, through the testimony of Hyde, presented substantial evidence that the prior conversation actually occurred and that defendant participated in it, and (2) it reasonably tends to prove a material fact in issue other than the character of the accused \u2014 specifically, defendant\u2019s planning of and participation in the armed robbery of Schrift\u2019s Food Mart, a business located in the Joppa Oaks area of Hillsborough. See N.C.G.S. \u00a7 8C-1, Rules 401.and 104(b) (1992). Moreover, the evidence of defendant\u2019s conversation is of great probative value because it occurred only twenty days before the robbery of Schrift\u2019s, and because the place and the manner in which the Schrift\u2019s robbery occurred parallels the place and the manner for committing robbery suggested by defendant in his conversation with Hyde. See State v. Jones, 322 N.C. 585, 589, 369 S.E.2d 822, 824 (1988) (to be admissible, other crimes evidence admitted to show a common plan under Rule 404(b) must be sufficiently similar to the crime charged and not too remote in time). Nothing in the record suggests that the trial court abused its discretion in determining that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice to the defendant. See N.C.G.S. \u00a7 8C-1, Rule 403 (1992). Finally, the trial court instructed the jury that the evidence was admitted solely for the purpose of showing on defendant\u2019s part a plan or scheme involving the charged crime \u2014 the robbery of Schrift\u2019s Food Mart. See N.C.G.S. \u00a7 8C-1, Rule 105 (1992).\nB\nDefendant argues that the trial court erroneously admitted evidence of defendant\u2019s participation in the robbery of Ray\u2019s Easy Shop because the sole relevance of such evidence was to show that defendant had the propensity to commit armed robbery. The State contends that the evidence is admissible to show a plan or scheme on defendant\u2019s part to commit armed robberies in the Joppa Oaks area of Hillsborough.\nFor the same reasons that evidence of defendant\u2019s conversation with Hyde was admitted for a proper purpose and is relevant, the evidence of the prior robbery of Ray\u2019s Easy Shop was admitted for a proper purpose and is relevant. In addition, the similarities between the robbery of Ray\u2019s and the robbery of Schrift\u2019s, and the fact that the robbery of Ray\u2019s occurred only twenty days prior to the Schrift\u2019s robbery, gives the evidence great probative value, which the trial court in its discretion determined was not substantially outweighed by the danger of unfair prejudice. We discern no abuse of discretion in this regard. Furthermore, the trial court provided a proper limiting instruction with regard to this evidence.\nC\nDefendant argues that evidence of his prior attempted break-in of Schrift\u2019s Food Mart impermissibly showed only that he had the propensity to commit the robbery of Schrift\u2019s, with which he is charged. Again, the State argues that such evidence shows on defendant\u2019s part a plan to rob Schrift\u2019s.\nEvidence of the attempted break-in of Schrift\u2019s three weeks prior to the actual robbery of the store, for the same reasons discussed above, was admitted for a proper purpose and is relevant. Furthermore, its high probative value can be measured by the fact that the attempted break-in occurred just three weeks prior to the actual robbery, and was of the same business which defendant eventually robbed. We discern no abuse of discretion on the part of the trial court in determining that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice to defendant. And although no limiting instruction was given with regard to this particular portion of Hyde\u2019s -testimony, there is no evidence in the record that one was requested. See Haskins, 104 N.C. App. at 679, 411 S.E.2d at 380 (limiting instruction for evidence admitted under Rule 404(b) required only if requested by defendant).\nII\nDefendant argues that evidence of his participation in the break-in of Alma Smith\u2019s residence on 8 December 1988, and of his participation in a police chase on 21 December 1988, is irrelevant and therefore inadmissible. Relevant evidence is defined as \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). All relevant evidence is admissible, N.C.G.S. \u00a7 8C-1, Rule 402 (1992), subject to the restrictions of Rule 403.\nA\nDuring the break-in of Alma Smith\u2019s residence, defendant, Hyde, and defendant\u2019s brother recovered, among other things, a .22 caliber rifle. The evidence at trial established that a .22 caliber rifle was used during the commission of the robbery of Schrift\u2019s Food Mart. Thus, the evidence of which defendant complains tends to make more probable the fact that defendant participated in the robbery of Schrift\u2019s because it shows that he had recently gained access to the same type of weapon that was used in the robbery. Accordingly, the evidence is relevant.\nB\nHyde testified that, during the high-speed chase involving himself and defendant and the police, Hyde threw from the car window the .22 caliber rifle which defendant and Hyde had stolen from Alma Smith\u2019s residence. According to Hyde, the gun apparently struck a telephone pole, because when Hyde went back to the scene to retrieve the gun, its stock had broken off. At trial, the clerk on duty at Schrift\u2019s on the night of the robbery testified that the gunman used a .22 caliber rifle with a \u201csawed-off\u201d stock. Thus, the evidence of the chase, during which the gun was broken, tends to make more probable defendant\u2019s participation in the robbery of Schrift\u2019s because it shows that defendant had access to a gun with the same features as the one used during the commission of the robbery with which defendant is charged.\nIll\nDefendant argues that the trial court erroneously admitted into evidence two photographs, which Hyde used to illustrate his testimony regarding the robbery of Ray\u2019s Easy Shop on 8 December 1988 in which he and defendant participated. One of the photographs depicts the entrance ramp to Interstate 85, where defendant parked the getaway car during the robbery. The other photograph depicts the layout of the store. According to defendant, the photographs served only to prejudice the jury against him because Hyde used the photographs \u201cto needlessly repeat testimony which tended to show that defendant frequently exhibited criminal behavior.\u201d\nThe exclusion of relevant evidence is a matter within the sound discretion of the trial court. See N.C.G.S. \u00a7 8C-1, Rule 403 (1992) (trial court may exclude relevant evidence if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice to the defendant or the needless presentation of cumulative evidence). \u201cWhether the use of photographic evidence is more probative than prejudicial . . . likewise lies within the discretion of the trial court.\u201d State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). To assess whether the State\u2019s use of photographs is unfairly prejudicial to the defendant, the trial court must examine the content and manner in which the challenged photographs are used and \u201cscrutinize the totality of the circumstances composing that presentation.\u201d Id. at 285, 372 S.E.2d at 527.\nIn the instant case, as previously discussed, the trial court properly allowed Hyde\u2019s testimony regarding defendant\u2019s participation in the robbery of Ray\u2019s Easy Shop, and we discern no abuse of discretion in the court\u2019s decision to allow the State to use two rather bland photographs to illustrate Hyde\u2019s testimony.\nNo error.\nJudges WYNN and WALKER concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Clarence J. DelForge, III, for the State.",
      "Levine, Stewart & Davis, by John T. Stewart, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. VERNON FORREST WILSON\nNo. 9115SC728\n(Filed 1 December 1992)\n1. Evidence and Witnesses .\u00a7 369 (NCI4th)\u2014 armed robbery\u2014 other crimes, wrongs, acts \u2014conversation concerning armed robberies \u2014plan, scheme or design\nThe trial court did not err in an armed robbery prosecution by admitting evidence of a conversation between defendant and another man, prior to the robbery with which defendant is charged, in which defendant suggested that they commit armed robberies to obtain money. Evidence of defendant\u2019s prior conversation constitutes evidence of another \u201ccrime, wrong, or act\u201d as those terms are used under N.C.G.S. \u00a7 8C-1, Rule 404(b) and the evidence was properly admitted for the purpose of showing that defendant had a plan, scheme, system, or design involving the commission of robberies in the Joppa Oaks area of Hillsborough. In addition, the State presented substantial evidence that the prior conversation actually occurred and that defendant participated in it, it reasonably tends to prove a material fact in issue other than the character of the accused, and it is of great probative value because it occurred only twenty days before the robbery in question, and the place and manner in which the robbery occurred closely parallels the place and manner for committing robbery suggested by defendant in the conversation. Finally, the trial court instructed the jury that the evidence was admitted solely for the purpose of showing on defendant\u2019s part a plan or scheme involving the charged crime.\nAm Jur 2d, Evidence \u00a7\u00a7 320-325, 363, 366.\n2. Evidence and Witnesses \u00a7 369 (NCI4th)\u2014 armed robbery \u2014 prior robbery \u2014admissible\nThe trial court did not err in an armed robbery prosecution by admitting evidence of a prior robbery where the evidence was admissible to show a common plan or scheme and the evidence had great probative value due to the similarities between the robberies and the fact that this robbery occurred only twenty days prior to the robbery for which defendant was tried. Furthermore, a proper limiting instruction was provided.\nAm Jur 2d, Evidence \u00a7\u00a7 326, 366.\n3. Evidence and Witnesses \u00a7 369 (NCI4th) \u2014 armed robbery \u2014 prior attempted break-in \u2014admissible\nThe trial court did not err in an armed robbery prosecution by admitting evidence of a prior attempted break-in where the evidence was admissible to show a common scheme or plan and was relevant, was of high probative value in that it occurred just three weeks prior to the actual robbery, and was of the same business which defendant eventually robbed. Although no limiting instruction was given, there is no evidence that one was requested.\nAm Jur 2d, Evidence \u00a7\u00a7 326, 366.\n4. Evidence and Witnesses \u00a7 369 (NCI4th)\u2014 armed robbery-prior break-in \u2014 prior police chase \u2014 admissible\nThe trial court did not err in an armed robbery prosecution by admitting evidence of defendant\u2019s prior break-in of a residence and his participation in a police chase where defendant recovered a .22 caliber rifle during the break-in, the stock of the rifle was broken during the chase, and there was testimony that a .22 caliber rifle with a sawed-off stock was used in the robbery for which defendant was tried. This evidence tends to make more probable defendant\u2019s participation in that robbery.\nAm Jur 2d, Evidence \u00a7\u00a7 280, 366.\n5. Evidence and Witnesses \u00a7 1708 (NCI4th)\u2014 robbery \u2014photographs of scene \u2014 admissible\nThe trial court did not err in a robbery prosecution by admitting photographs of the scene to illustrate testimony regarding the robbery.\nAm Jur 2d, Evidence \u00a7\u00a7 785 et seq.\nAppeal by defendant from judgment entered 5 April 1991 in Orange County Superior Court by Judge J. Milton Read, Jr. Heard in the Court of Appeals 14 October 1992.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Clarence J. DelForge, III, for the State.\nLevine, Stewart & Davis, by John T. Stewart, for defendant-appellant."
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