{
  "id": 9497817,
  "name": "STATE OF NORTH CAROLINA v. NANCY FLUKER",
  "name_abbreviation": "State v. Fluker",
  "decision_date": "2000-08-29",
  "docket_number": "No. COA99-504",
  "first_page": "768",
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    "judges": [
      "Chief Judge EAGLES and Judge HORTON concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. NANCY FLUKER"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nDefendant Nancy Fluker was charged with misdemeanor larceny of property belonging to J.C. Penney at South Square Mall in Durham, North Carolina on 1 February 1997. The evidence at trial tended to show that Catherine Cates (Cates), an employee of J.C. Penney for twenty-five years, saw defendant pulling a shopping bag from under Cates\u2019s counter at the J.C. Penney\u2019s store. When Cates asked if she could help defendant, defendant said she was just looking and walked away. Defendant was holding only a purse and the shopping bag from under the counter. Cates called to alert Malcolm Allen (Allen), a J.C. Penney\u2019s security person, about defendant\u2019s actions. Cates saw defendant looking at collectible Barbie dolls, each of which was boxed inside a cabinet in the gift registry area. She saw defendant take two dolls into the furniture department, where defendant sat down behind a desk and made a \u201cmotion with something between her legs.\u201d Cates testified she saw Renee Adkins (Adkins), another security person, also watching defendant as defendant walked out of the store.\nAllen testified he saw defendant carrying a purse and flat, empty J.C. Penney\u2019s shopping bags draped over her forearm and held close to her stomach. In the baby section, Allen saw defendant picking up items and looking at them. Defendant went into a concealed corner near the stock room and placed baby clothing into a bag.\nAllen and Adkins testified they observed defendant take two Barbie doll boxes out of the cabinet. Allen went downstairs to find Cates but received a message on his radio that defendant was about to leave the store. Allen testified that J.C. Penney\u2019s policy is t\u00f3 stop suspected shoplifters after they have exited the store. Allen ascended the stairwell in the mall common area adjacent to J.C. Penney and met defendant. Allen took defendant to the security office, and she cooperated. Allen said defendant stated that \u201cshe was only bringing some stuff back and the other stuff she was going to buy from the store,\u201d for she \u201cwas on her way to the bathroom and she was going to return to the store.\u201d Allen testified that J.C. Penney has a bathroom for shoppers inside the store. According to defendant, she did not tell Allen she had left the store to find a bathroom.\nOfficer A. Z. Jaynes, a Durham police officer, testified defendant denied any wrongdoing and stated that her husband could verify her intent to exchange store items. Officer Jaynes spoke to defendant\u2019s husband on the telephone and defendant\u2019s husband said he did not see her leave the house and did not know if she had left with bags. Cates received a call instructing her to go to the security office where she identified the dolls in defendant\u2019s possession as the same dolls she saw defendant remove from the store.\nDefendant testified that she bought \u201ctwo little short sets, Barbie dolls and a book bag\u201d at a mall in Virginia in the fall of 1996 and that she bought some baby clothes in Durham in October 1996. Defendant said she went to J.C. Penney to exchange the Barbie dolls and blue jean items, and to find something for her house. Defendant stated that she had bought the baby clothes for her neighbors\u2019 children, but on cross-examination she did not know the children\u2019s first names or the family\u2019s surname. Defendant testified that the neighbors moved away before she could give their children the baby clothes, and that defendant kept the baby clothes for months in case the neighbors returned to the house.\nDefendant said because she did not have a receipt, when she arrived at J.C. Penney she found the \u201cfirst person\u201d she could find in the store to ask about exchanges without a receipt. She said she removed the goods from her bag and laid them on the counter. Defendant later identified the employee she talked to as Azuka Spicer (Spicer). Defendant said she noticed Cates watching her when she picked up her bags, so she stood in line at Cates\u2019s register. After a few minutes of waiting in line, defendant said she went to find Spicer, who could confirm that defendant owned the items in the bags. A computerized store time sheet showed that Spicer was not working when defendant said they spoke.\nJerry Kite, the manager of the Durham J.C. Penney store, testified that the results of an item inquiry showed that the articles in defendant\u2019s bags were not sold in the stores from which defendant claims to have purchased them during the times defendant said she bought them. The items were, however, currently listed in the J.C. Penney inventory. Defendant was convicted of misdemeanor larceny on 6 April 1998 and sentenced to a 45-day suspended sentence with twelve months of supervised probation. Defendant appeals.\nDefendant argues the trial court erred by allowing the State to cross-examine her about a prior detainment in a Hecht\u2019s department store pursuant to Rule 404(b) of the North Carolina Rules of Evidence. Defendant filed a motion in limine on 30 March 1998 requesting that the trial court exclude any reference to a \u201clarceny and unlawful concealment at Hecht\u2019s in March, 1995, when in fact the Defendant was found not guiltyf.]\u201d The trial court acknowledged the request and told the State before trial \u201c[i]f you do have evidence that might be of a 404 nature, I\u2019m not going to allow you to proceed with that evidence in the presence of the jury.\u201d The court continued that \u201cif there is evidence of that nature, you need to notify the Court during the course of the trial. . . and we\u2019ll send the jury out. The Court will then rule on whether or not it is admissible.\u201d\nThe trial court later stated just prior to cross-examination of defendant, \u201cMr. D.A., before we start cross examination, I understand that at least [at] one point in time [] there had been an incident at Hecht\u2019s and you wanted the Court to hear you on any inquiry you might make of [defendant] on cross examination in regards to that.\u201d The State responded affirmatively and explained:\nCertainly it\u2019s not a conviction, but it goes to show intent, preparation, plan. Especially in this case, absence of mistake. This isn\u2019t just a mistake. [The defendant] was aware something like this could happen if you don\u2019t have a receipt or you\u2019re exchanging items. So it\u2019s not just a big misunderstanding. It might be a big misunderstanding if it happens the first time. But if you\u2019re put on notice this could happen, it\u2019s less likely the second time this is going to become a big misunderstanding again.\nThe trial court ruled that defendant \u201chas testified to the extent that this was at least a mistake or a misunderstanding and that for cross-examination purposes, the Court is going to allow inquiry into the incident at [Hecht\u2019s] previously, to show absence of mistake.\u201d The trial court continued, however:\n[S]ince there was a prior adjudication of these charges, Mr. D.A., I\u2019m going to tell you that you will not be able to ask [defendant] about whether or not she was charged with these offenses or what the disposition, if any, was. I will allow you to inquire cautiously about whether or not there was an incident at [Hecht\u2019s] on this date in which [defendant] was stopped with merchandise and questions of that nature, and detained, questioned, and whether or not that \u2014 if you desire, whether or not that did not leave an impression on [defendant] to some extent about such activities.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999) provides:\nOther crimes, wrongs, or acts. \u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nThe State commenced its cross-examination of defendant by asking whether \u201cth[e] whole occurrence [at J.C. Penney] ha[d] been a big misunderstanding,\u201d to which defendant maintained that her testimony during direct examination regarding the incident at J.C. Penney had been truthful. Later defendant was asked, \u201cDid you not have an incident on March 21, 1995 at Hecht\u2019s Department Store when you were stopped with merchandise there?\u201d Defendant replied, \u201cI plead the [FJifth.\u201d When the trial court ordered defendant to respond, she provided a detailed explanation of how she was treated unjustly during and subsequent to her detainment at Hecht\u2019s.\nThe trial court had determined \u201cthat under [Rule] 404, for cross-examination purposes, [] this would be an appropriate inquiry.\u201d It added that \u201cunder [Rule] 402 [] this is relevant information and [] it\u2019s not precluded or excluded by Rule 403.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1999) provides that \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d\nFirst, each of the purposes for which character evidence may be admitted under Rule 404(b) refers to the accused, or the person whose character is in issue. Just as the considerations of \u201cmotive, opportunity, intent, preparation, plan, knowledge, [and] identity,\u201d in Rule 404(b) pertain to the accused, the same is true for \u201cabsence of mistake, entrapment or accident.\u201d Thus, the State may attempt to introduce evidence of other crimes, wrongs, or acts to demonstrate that defendant did not make a mistake. However, defendant does not claim she made any mistake in this case. Instead, she claims she owned the items found in her shopping bag and was detained during an attempt to exchange them.\nBy contrast, the State characterizes her defense as a claim that the entire incident was a \u201cmistake,\u201d which properly stated would be a mistake on the part of the State. Using this characterization, the State attempts to introduce evidence of other crimes, wrongs or acts to prove an \u201cabsence of mistake.\u201d Rule 404(b) may not be applied in this way. The reason is that the question of whether the State was mistaken in prosecuting a certain defendant hinges on whether that defendant is in fact guilty. Proving guilt or a likelihood of guilt through evidence of other crimes, wrongs or acts is precisely what Rule 404(b) forbids \u2014 the use of such evidence \u201cto prove the character of a person in order to show that he acted in conformity therewith.\u201d Moreover, if \u201cabsence of mistake\u201d were to apply to a mistake in prosecuting, virtually every criminal defendant claiming innocence could implicitly contend that the State was somehow mistaken in prosecuting that defendant.\nThe United States Court of Appeals for the Sixth Circuit has made the same observations:\n[AJbsence of mistake \u201con behalf of the government\u201d is not a legitimate basis to admit other acts evidence under Rule 404(b). Rather, it is a restatement of the primary reason for which the evidence is not admissible; that is, to suggest that the defendant is guilty (the government is not mistaken) because he committed the same or other crimes before.\nUnited States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996) (emphasis in original). Similarly in United States v. Robinson, 20 M.J. 752, 753 (1985), the U.S. Navy-Marine Corps Court of Military Review stated:\nWe feel much more comfortable, however, with the position taken by the defense at trial and on appeal that the \u201cabsence of mistake\u201d mentioned in M.R.E. 404(b) refers only to a mistake on the part of the accused. Such a position seems the only logical one when the litany of exceptions obviously relate to acts of the accused or other person whose character is in issue.\nWe also acknowledge the State implicitly argues defendant made a mistake to which she does not admit. The State\u2019s argument in essence is that defendant, by shopping in J.C. Penney carrying items she owned in a store bag without a receipt, made a mistake simply in creating a situation where she might again be suspected of larceny. The State contends the evidence from Hecht\u2019s was properly admitted \u201cto determine if that experience had not left an impression on the Defendant about such activities.\u201d This argument is premised on an overbroad theory of what may constitute a mistake on the part of defendant, and the State is not permitted to offer evidence of other crimes, wrongs or acts for character evidence in such circumstances. Thus, the trial court erred by admitting evidence of a prior detainment at Hecht\u2019s to show the absence of mistake by the State pursuant to Rule 404(b), as opposed to any absence of mistake that defendant might claim she made. See, e.g., State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997) (evidence that defendant shook and threw his girlfriend\u2019s son admissible to show he did not mistakenly inflict fatal injuries to his niece while trying to revive her); State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991) (testimony of prior instances of inappropriate child discipline admissible to show absence of mistake by defendant regarding the prudence of coercing child to consume large quantities of water, which caused death); State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, cert. denied, 317 N.C. 338, 346 S.E.2d 144 (1986) (testimony that defendant had previously passed bad checks admissible to rebut his claim that he was mistaken about the legitimacy of later checks and of a sham janitorial service in whose name the checks were written), overruled on other grounds by State v. Rogers, 346 N.C. 262, 485 S.E.2d 619 (1997).\nAdditionally, defendant was judicially acquitted of the crime for which she was charged in the Hecht\u2019s incident. In State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992), our Supreme Court held \u201cevidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent tried for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime.\u201d Scott, 331 N.C. at 42, 413 S.E.2d at 788. The Court in Scott explained that \u201c[a] person acquitted of a charge should not be required again to defend himself against that charge in subsequent criminal proceedings in which he may become involved.\u201d Id. at 44, 413 S.E.2d at 789. Therefore,\n[t]he North Carolina Rules of Evidence must be interpreted and applied in light of this proposition: an acquittal and the undefeated presumption of innocence it signifies means that, in law, defendant did not commit the crime charged. When the probative value of evidence of this other conduct depends upon the proposition that defendant committed the prior crime, his earlier acquittal of that crime so erodes the probative value of the evidence that its potential for prejudice, which is great, must perforce outweigh its probative value under Rule 403.\nId. at 44, 413 S.E.2d at 790. Compare State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643 (1994) (testimony that defendant told victim he would hurt her like he had hurt someone else, referring to a crime for which he was later acquitted, was admissible to show victim\u2019s fear and did not depend on proposition that defendant committed prior crime); State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990) (testimony that defendant possessed marijuana, despite earlier acquittal of the possession charge, was admissible where that conduct was part of the same \u201cchain of circumstances\u201d which included the charged offense for which defendant was on trial).\nAs previously stated, the trial court allowed evidence of the prior incident to show lack of a mistake, which equates to proving the likelihood of her guilt. The probative value of the prior detainment necessarily depends upon the proposition that defendant committed the prior crime at Hecht\u2019s. Thus in the present case, as\nthe probative value of evidence of this other conduct [at Hecht\u2019s] depends upon the proposition that defendant committed the prior crime, [her] earlier acquittal of that crime so erodes the probative value of the evidence that its potential for prejudice, which is great, must perforce outweigh its probative value under Rule 403.\u201d\nScott, 331 N.C. at 44, 413 S.E.2d at 790. Following Scott, we conclude the trial court in this case erred in admitting evidence of the detainment incident at Hecht\u2019s on cross-examination. We also note the trial court was not requested to and did not give a limiting instruction to the jury either at the time the evidence was admitted nor during the jury charge. See generally T. M. Ringer, Jr., A Six Step Analysis of \u201cOther Purposes\u201d Evidence Pursuant to Rule 404(B) of the North Carolina Rules of Evidence, 21 N.C. Cent. L.J. 1 (1995).\nIn Scott, our Supreme Court concluded that the trial court\u2019s error was prejudicial and entitled the defendant to a new trial. See id. at 46, 413 S.E.2d at 791. \u201cThe test for prejudicial error is whether there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial.\u201d Id. The Scott Court stated that \u201c[gjiven the similarity of the circumstances\u201d between the prior accusations and the offense for which the defendant was being tried, \u201cwe conclude there is at least a reasonable possibility that had the error in admitting [the 404(b)] testimony not been committed and this evidence excluded a different result would have [been] obtained at trial.\u201d Id.\nIn the present case, however, there is not a reasonable possibility that, had the error not been committed, a different result would have been reached at trial. In State v. Robinson, 115 N.C. App. 358, 444 S.E.2d 475, disc. review denied, 337 N.C. 697, 448 S.E.2d 538 (1994), our Court held that the error under Scott in admitting through Rule 404(b) evidence of a prior acquittal was not prejudicial because of the circumstances under which the defendant was caught in a private office, \u201chis self-contradictory and highly improbable explanations for his presence there,\u201d and the similarity between the improperly admitted evidence and other evidence to which the defendant did not object. Id. at 362, 444 S.E.2d at 477. The circumstances in this case similarly militate a finding of culpability where defendant was caught leaving J.C. Penney with store items that had not been purchased and multiple eyewitnesses watched defendant take the store items.\nWe also note the \u201chighly improbable explanations\u201d by defendant in this case, such as the claim that defendant intended to bring gifts to children whom she could not name, or the claim that she was walking out of the store to visit a bathroom before exchanging the items when the J.C. Penney store provided a bathroom inside. Moreover, the State presented extrinsic evidence that undermines the defense theory, and thus the jury was not faced with a simple case of witness credibility. For instance, the articles found in defendant\u2019s bag were not sold in the store where she claims to have purchased them, and the woman whom defendant said she consulted about exchanging the items was not working when defendant said they spoke. Following Robinson, the error in admitting the Hecht\u2019s evidence was a nonprejudicial error. Indeed, the only evidence of the Hecht\u2019s incident was defendant\u2019s testimony, and her testimony only described how she was physically and emotionally mistreated during that prior detainment; it did not greatly detract from her defense.\nDefendant also argues the trial court erred by allowing the State to cross-examine her about the Hecht\u2019s acquittal pursuant to Rule 608(b) of the North Carolina Rules of Evidence. This argument, however, neither corresponds to the assignments of error it references nor to any other assignment of error in the record. Additionally, the argument was not presented during trial for the trial court to consider and determine. Our \u201cscope of review on appeal is limited to those issues presented by assignment of error in the record on appeal[,]\u201d and therefore we do not review this argument. N.C.R. App. P. Rule 10(a); Koufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991).\nFurthermore, defendant argues the trial court erred by denying her motion to dismiss at the close of the State\u2019s evidence and at the close of all the evidence. \u201cA motion to dismiss should be denied if there is substantial evidence of each essential element of the charged offense and substantial evidence that the defendant is the individual who committed it.\u201d State v. Foreman, 133 N.C. App. 292, 298, 515 S.E.2d 488, 493 (1999), aff'd as modified, 351 N.C. 627, 527 S.E.2d 921 (2000) (citation omitted). Larceny is the taking by trespass and carrying away of the goods or personal property of another, without the owner\u2019s consent and with the intent permanently to deprive the owner of the property and to convert it to the taker\u2019s own use. State v. Boykin, 78 N.C. App. 572, 576, 337 S.E.2d 678, 681 (1985). The elements of proof are the same for misdemeanor and felony larceny, the only difference being the value or nature of the property stolen. Id. The State presented evidence that defendant entered a department store, obtained empty shopping bags from behind a sales desk, placed merchandise owned by the store into those bags, and carried the bags containing the merchandise out of the store without its consent. This is substantial evidence defendant committed larceny and the trial court did not err in denying defendant\u2019s motions to dismiss for insufficient evidence.\nWe have reviewed defendant\u2019s remaining arguments that the trial court erred and find them to be without merit. The defendant received a fair trial free of prejudicial error.\nNo prejudicial error.\nChief Judge EAGLES and Judge HORTON concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F Easley, by Assistant Attorney General Linda Kimbell, for the State.",
      "Laurence D. Colbert for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. NANCY FLUKER\nNo. COA99-504\n(Filed 29 August 2000)\n1. Evidence\u2014 prior crime or act \u2014 similar act \u2014 detainment in department store for shoplifting \u2014 no prejudicial error\nAlthough the trial court erred in a misdemeanor larceny case by allowing the State to cross-examine defendant about her prior detainment in a department store for alleged shoplifting to show the absence of mistake by the State under N.C.G.S. \u00a7 8C-1, Rule 404(b), it was not prejudicial error because: (1) defendant did not request a limiting instruction to the jury either at the time the evidence was admitted nor during the jury charge; (2) defendant was caught leaving a department store with store items that had not been purchased and multiple eyewitnesses watched defendant take the store items; (3) defendant gave highly improbable explanations for her actions; and (4) the only evidence of the prior incident was defendant\u2019s testimony describing how she was physically and emotionally mistreated, which did not detract from her defense.\n2. Appeal and Error\u2014 appealability \u2014 issue not raised below \u2014 no assignment of error\nAlthough defendant contends the trial court erred in a misdemeanor larceny case by allowing the State to cross-examine defendant under N.C.G.S. \u00a7 8C-1, Rule 608(b) about her prior acquittal for shoplifting at another department store, this argument is not considered because: (1) it does not correspond to the assignment of error it references, nor to any other assignment of error in the record; and (2) the argument was not presented during trial.\n3. Larceny\u2014 misdemeanor \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in a misdemeanor larceny case by denying defendant\u2019s motion to dismiss at the close of the State\u2019s evidence and at the close of all evidence, because the State presented substantial evidence that defendant entered a department store, obtained empty shopping bags from behind a sales desk, placed merchandise owned by the store into those bags, and carried the bags containing the merchandise out of the store without its consent.\nAppeal by defendant from judgment entered 8 April 1998 by Judge Ronald L. Stephens in Durham County Superior Court. Heard in the Court of Appeals 21 February 2000.\nAttorney General Michael F Easley, by Assistant Attorney General Linda Kimbell, for the State.\nLaurence D. Colbert for defendant."
  },
  "file_name": "0768-01",
  "first_page_order": 800,
  "last_page_order": 809
}
