{ "id": 8999452, "name": "STATE OF NORTH CAROLINA v. DANIEL DELANE COOK, Defendant", "name_abbreviation": "State v. Cook", "decision_date": "2004-08-03", "docket_number": "No. COA02-1582", "first_page": "630", "last_page": "639", "citations": [ { "type": "official", "cite": "165 N.C. App. 630" } ], "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": "284 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "531", "parenthetical": "fact that jury acquitted defendant of one of the charges \"takes on added significance\" when determining whether error as to second charge was harmless" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526634 ], "year": 1981, "pin_cites": [ { "page": "33", "parenthetical": "fact that jury acquitted defendant of one of the charges \"takes on added significance\" when determining whether error as to second charge was harmless" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0025-01" ] }, { "cite": "340 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "year": 1986, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "348 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "318 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731290 ], "year": 1986, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0400-01" ] }, { "cite": "151 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "268 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564406 ], "year": 1966, "pin_cites": [ { "page": "628-29" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0624-01" ] }, { "cite": "558 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "165-66", "parenthetical": "quoting Nat'l Food Stores v. N.C. Bd. of Alcoholic Control, 268 N.C. 624, 628-29, 151 S.E.2d 582, 586 (1966)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220102 ], "year": 2002, "pin_cites": [ { "page": "203", "parenthetical": "quoting Nat'l Food Stores v. N.C. Bd. of Alcoholic Control, 268 N.C. 624, 628-29, 151 S.E.2d 582, 586 (1966)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0198-01" ] }, { "cite": "559 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "10", "parenthetical": "Wynn, J., dissenting" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365770 ], "year": 2002, "pin_cites": [ { "page": "318", "parenthetical": "Wynn, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0310-01" ] }, { "cite": "571 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "583", "parenthetical": "Wynn, J., dissenting" } ], "opinion_index": 0 }, { "cite": "356 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511532 ], "year": 2002, "pin_cites": [ { "page": "418", "parenthetical": "Wynn, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0418-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "608", "parenthetical": "internal quotation marks omitted; emphasis original" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "88", "parenthetical": "internal quotation marks omitted; emphasis original" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "432 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "334 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530709 ], "year": 1993, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0356-01" ] }, { "cite": "257 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573254, 8573319, 8573365, 8573277, 8573341 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0616-01", "/nc/297/0616-03", "/nc/297/0616-05", "/nc/297/0616-02", "/nc/297/0616-04" ] }, { "cite": "253 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551953 ], "year": 1979, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0580-01" ] }, { "cite": "357 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "384" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128337 ], "year": 1987, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0291-01" ] }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568577, 2571922, 2569366, 2567258, 2567967 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0475-01", "/nc/321/0475-05", "/nc/321/0475-04", "/nc/321/0475-02", "/nc/321/0475-03" ] }, { "cite": "360 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "292" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358008 ], "year": 1987, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0152-01" ] }, { "cite": "238 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565309 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0486-01" ] }, { "cite": "50 S.E. 310", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "pin_cites": [ { "page": "311", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "138 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270096 ], "year": 1905, "pin_cites": [ { "page": "622", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/138/0620-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "428 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "485" }, { "page": "608" }, { "page": "485" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526050 ], "year": 1993, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0601-01" ] } ], "analysis": { "cardinality": 963, "char_count": 20464, "ocr_confidence": 0.723, "pagerank": { "raw": 7.417423180508613e-08, "percentile": 0.44338994281133765 }, "sha256": "6ec63a8dfa75b665674fbca23b3e088d95a8afaefc5dd49cd2c6ed56d65a5056", "simhash": "1:2f7a4fe25611bbfa", "word_count": 3426 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DANIEL DELANE COOK, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Daniel Delane Cook appeals from his conviction for embezzlement. He argues on appeal (1) that the trial court erred in denying his motion to dismiss for insufficient evidence that he was at least 16 years old; and (2) that the trial court erred by admitting evidence of a prior incident of embezzlement by defendant. We hold that the trial court properly denied defendant\u2019s motion to dismiss, but that the admission of evidence of a prior incident of embezzlement was prejudicial error. Defendant is, therefore, entitled to a new trial.\nFacts\nThe State\u2019s evidence tended to show the following. In the summer of 2001, defendant was employed at a Wendy\u2019s restaurant in Charlotte. On 10 June 2001, defendant reported that someone had robbed the restaurant at gunpoint while he was working at the drive-through window. Ten days later, defendant reported that the same person had again robbed the drive-through window while he was working there, this time cutting defendant\u2019s forearm with a knife when he reached through the window to hand the robber the money.\nOn the evening of 21 July 2001, defendant was operating the dining room cash register off and on from 6:00 p.m. until 10:00 p.m. At about 10:00 p.m., the manager of the Wendy\u2019s, Thomas Smith, asked defendant to stay a little later to close the restaurant. Smith locked the restaurant door and returned to his office. Approximately ten minutes later, when he came out of his office, Smith noticed that there was a line of people at the counter, but defendant was not at the register. The shift supervisor told Smith that he did not know where defendant was. Smith waited on the customers in line, then went to look for defendant. One of the employees informed him that defendant had \u201cbooked out the back door,\u201d but when Smith looked out the back door he did not see defendant. He checked the time clock and verified that defendant had not clocked out. Smith then checked the' register and lock box and found that $578.00 was missing.\nSmith called defendant\u2019s home and asked his mother to have him call the restaurant. Smith then called his general manager, who instructed him to call the police. A short time later, defendant called the general manager and reported that he had seen the perpetrator of the two recent robberies in the dining room of the restaurant, causing him to panic and flee the store.\nDefendant testified on his own behalf. He suggested that other employees could have taken the money, pointing out that when he began working on the register, it was not changed out and that the manager had taken over his cash drawer at least once. According to defendant, the restaurant had cameras trained on the register and he believed they worked. Defendant testified that after the manager locked the restaurant\u2019s doors (although there were 10 to 20 people still inside), he recognized one of the people as being the man who had cut him on 20 June 2001. He grabbed his clothes, ran out the back door, and left with a co-worker. When he called his mother a short time later, she told him about Smith\u2019s call. Defendant first called the manager to report what had happened and then called the police. He waited by the pay phone for the police to pick him up.\nDefendant was charged with three counts of embezzlement based on the 10 June, 20 June, and 21 July 2001 robberies of the Wendy\u2019s. The charges were consolidated for trial at the 25 June 2002 session of Mecklenburg Co\u00fanty Superior Court. On 27 June 2002, defendant was convicted of embezzlement arising from the 21 July 2001 incident, but was acquitted of the two charges arising from the 10 June and 20 June 2001 incidents. The trial judge sentenced defendant to six to eight months imprisonment, suspended the active sentence, placed defendant on 48 months supervised probation, and ordered him to pay restitution.\nI\nDefendant first contends that the trial court erred in denying his motion to dismiss for insufficient evidence, arguing only that the State failed to present substantial evidence that defendant was 16 years old or older. In ruling on a motion to dismiss for insufficient evidence, a trial court must determine whether the State has presented substantial evidence of each element of the offense. State v. Rupe, 109 N.C. App. 601, 607, 428 S.E.2d 480, 485 (1993). Substantial evidence is such evidence that, when viewed in the light most favorable to the State, a reasonable mind would accept as sufficient to support a conclusion. Id. If the State has offered substantial evidence of each essential element of the crime charged, the defendant\u2019s motion must be denied. Id. at 608, 428 S.E.2d at 485.\nThe crime of embezzlement is set out in N.C. Gen. Stat. \u00a7 14-90 (2003) (emphasis added):\nIf any . . . agent, consignee, clerk, bailee or servant, except persons under the age of 16 years . . . shall embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or shall take, make away with or secrete, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use any money,. .. belonging to any other person or corporation, unincorporated association or organization which shall have come into his possession or under his care, he shall be guilty of a felony.\nDefendant claims that this statute makes age an essential element of the offense of embezzlement that must be proven by the State. The State, however, contends that age is an affirmative defense.\nNearly a century ago, our Supreme Court held that age is an affirmative defense rather than an element of the offense:\nWhile the indictment must charge that the defendant was not an apprentice, nor under the age of 16 years, yet it is not an act constituting a part of the transaction which the State is called on to prove. It is a status, peculiarly within the knowledge of the defendant (like non-marriage in indictments for fornication and adultery), which though charged in the bill, if denied, is a defense to be shown by defendant. When the status of defendant, as being under a given age or married, by the terms of the statute would withdraw the defendant from responsibility, while the' indictment must negative such status, the status is a defense in the nature of a confession and avoidance which must be shown by the defendant. The State is not called upon to prove negative averments of this nature.\nState v. Blackley, 138 N.C. 620, 622, 50 S.E. 310, 311 (1905) (internal citations omitted), overruled on other grounds by State v. Batdorf, 293 N.C. 486, 238 S.E.2d 497 (1977). Nevertheless, in more recent cases, this Court has included the age restriction when listing the elements of embezzlement that must be proven by the State. See, e.g., State v. Britt, 87 N.C. App. 152, 153, 360 S.E.2d 291, 292 (1987), disc. review denied, 321 N.C. 475, 364 S.E.2d 924 (1988); State v. Melvin, 86 N.C. App. 291, 298, 357 S.E.2d 379, 384 (1987); State v. Pate, 40 N.C. App. 580, 583, 253 S.E.2d 266, 269, cert. denied, 297 N.C. 616, 257 S.E.2d 222 (1979).\nWe need not, however, resolve this apparent conflict in the law because the State in fact presented uncontroverted evidence that defendant was at least 16 years old. John Donaldson, the general manager of the Wendy\u2019s restaurant at which defendant worked, was asked about age requirements for employees. He stated: \u201cThey have to be minimum 16 years old. We don\u2019t hire below 16 years of age.\u201d Since this testimony was sufficient to allow the jury to infer that defendant was over the age of 16 on the date of the offense, the trial court did not err in denying defendant\u2019s motion to dismiss. For the same reason, we hold that the trial court did not err in denying defendant\u2019s motion to set aside the jury verdict.\nDefendant further argues that the trial court erred in denying his request for a jury instruction on age. A defendant is entitled to a requested jury instruction only when the instruction is \u201ccorrect in itself and supported by evidence[.]\u201d State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993). Here, the record contains no evidence suggesting defendant was under the age of 16, and, therefore, the trial court was not required to give the requested instruction.\nII\nDefendant has also assigned as error the trial court\u2019s admission into evidence of a prior incident of embezzlement by defendant as violating N.C.R. Evid. 404(b). Rule 404(b) of the North Carolina Rules of Evidence provides:\nEvidence 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.\nRule 404(b) is \u201ca clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001) (internal quotation marks omitted; emphasis original).\nThe trial court below allowed the State to present evidence during its case in chief that defendant previously embezzled money in January 2000 while employed as a bagger/cashier at a Bi-Lo grocery store in Charlotte. The Bi-Lo Regional Loss Prevention Specialist, Scott Goodwin, testified that he spoke to defendant while investigating an incident regarding a bag containing $1,100.00 that was missing from the Eastway Drive Bi-Lo where defendant worked. Goodwin testified that defendant admitted both verbally and in writing to taking the money for his personal use. Defendant\u2019s handwritten statement was admitted into evidence and read aloud by Goodwin. The State also called the investigating police officer, Paul B. Conner, who authenticated and read defendant\u2019s statement to him regarding the Bi-Lo embezzlement.\nAccording to the statements, defendant was bagging groceries at the Bi-Lo store. A cashier counted out the money in her register and separated it into two bags. She asked defendant to take both bags to the cash room. Defendant took one bag of money to the cash room, but put the other bag (containing $1,100.00) in a locker in the break room. He retrieved the bag when he finished work and took it home. Defendant was charged with embezzlement, but qualified for deferred prosecution. After he successfully completed the requirements of the deferred prosecution, the charges were dismissed.\nDuring voir dire, the trial court found that the evidence \u201cwould go to the credibility of the Defendant\u2019s explanation for the missing money, would tend to negate his contention made to his employer that the money was missing due to two robberies, and also due to his having to run from the restaurant out of fear.\u201d The court further found that the evidence was \u201cmore probative than prejudicial,\u201d as required by N.C.R. Evid. 403. The court admitted the evidence \u201cfor the limited purpose of contradicting the Defendant\u2019s explanations given on the three occasions for which he is being tried\u201d and gave the following limiting instruction to the jury:\nMembers of the jury, this evidence would be admitted for the limited purpose, and you may consider it for this limited purpose only.\nThat is, to the extent that you find that this evidence relates to the credibility of the explanations given by the Defendant to his employer on three occasions when money was found to be missing.\nYou may not consider this evidence for any other purpose other than this limited purpose. That is, the extent you find it bears on the credibility of the Defendant\u2019s explanation which he gave to his employer in these cases.\nThe State then argued in closing arguments:\nNow, we went over some evidence relating to an incident that occurred at Bi-Lo, the Bi-Lo located on Eastway back in 2000. And the Judge will tell you that he\u2019s not charged with that case today. The mere fact that that incident occurred does not in and of itself mean that the Defendant committed the embezzlement at Wendy\u2019s on June 10th, June 20th, and July 21st. But you can look at what happened at Bi-Lo in 2000, and determine for yourself whether or not you want to believe the Defendant\u2019s story. . . . Now, like I said, we\u2019re not using that to try to say that he did this or that in and of itself proves he commited [sic] the acts at Wendy\u2019s, but you can consider that based on the fact that the Defendant did this at Bi-Los [sic] you can consider. . . . You can consider whether or not you want to believe the Defendant\u2019s story today.\nWhile the State argues that the trial court admitted the disputed evidence for a purpose other than showing defendant\u2019s propensity to commit embezzlement, we disagree. The sole purpose for admission of the evidence at trial was to attack defendant\u2019s credibility. If we were to allow evidence of prior bad acts to be admissible under Rule 404(b) for purposes of challenging credibility, we would undermine the General Assembly\u2019s careful design regarding admission of character evidence.\nRule 608(b) (emphasis added) provides that \u201c[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.\u201d Instead, if probative of truthfulness or untruthfulness, they may \u201cbe inquired into on cross-examination of the witness[.]\u201d Id. Rule 609(a) in turn permits admission of evidence of certain, specified convictions \u201c[f]or the purpose of attacking the credibility of a witness,\u201d only \u201cif elicited from the witness or established by public record during cross-examination or thereafter.\u201d Under Rule 609, the State may not offer evidence of the details underlying the convictions apart from the name of the crime, the time and place of the conviction, and the punishment imposed. State v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993).\nBy allowing the State to introduce extrinsic evidence during its case in chief of the details of a prior embezzlement in which the charges have been dismissed pursuant to a deferred prosecution agreement, the trial court allowed the State to circumvent the strict limitations of Rules 608 and 609. Our Supreme Court has already held that the distinctions between Rule 404(b) and Rule 609 may not be blurred. State v. Wilkerson, 356 N.C. 418, 418, 571 S.E.2d 583, 583, adopting per curiam, 148 N.C. App. 310, 318, 559 S.E.2d 5, 10 (2002) (Wynn, J., dissenting). Since Rules 608 and 609 specifically address the admissibility of prior bad acts to challenge a witness\u2019 credibility, Rule 404(b) should not be construed in a manner inconsistent with those rules. As our Supreme Court has stated, in construing the Rules of Civil Procedure:\n\u201cWhere there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute, according to the authorities on the question, unless it appears that the legislature intended to make the general act controlling^]\u201d\nThigpen v. Ngo, 355 N.C. 198, 203, 558 S.E.2d 162, 165-66 (2002) (quoting Nat\u2019l Food Stores v. N.C. Bd. of Alcoholic Control, 268 N.C. 624, 628-29, 151 S.E.2d 582, 586 (1966)).\nNor is a reading that would find impeachment to be a proper purpose for admission of evidence under Rule 404(b) consistent with our Supreme Court\u2019s past explanations of the rule. Although Rule 404(b) is a rule of inclusion, our Supreme Court has held that evidence of other offenses is admissible only \u201cso long as it is relevant to any fact or issue other than the character of the accused.\u201d State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). Phrased differently, Rule 404(b) provides that proof of a person\u2019s character by evidence of prior bad acts \u201cmay properly be used as circumstantial proof of a controverted fact at trial (for instance, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, etc.).\u201d State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986). Credibility relates only to \u201cthe character of the accused\u201d and challenges to credibility do not amount to \u201ccircumstantial proof of a controverted fact.\u201d See 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 97, at 299 & n.237 (6th ed. 2004) (\u201ca person\u2019s character is only collaterally in issue, . . . [i].e., where it is offered on the question of a witness\u2019s credibility\u201d).\nIndeed, as offered here, in order for the jury to find that the prior embezzlement undercut the credibility of defendant\u2019s version of the facts, the jury would have to reason \u2014 as the State urged in closing argument \u2014 that if defendant embezzled money from a prior employer, then his claim that he did not embezzle money from Wendy\u2019s was unlikely to be true. This reasoning is precisely what Rule 404(b) prohibits. To allow otherwise inadmissible Rule 404(b) evidence to be admitted under the guise of challenging credibility would effectively erase the exclusionary portion of the rule.\nThe State has not pointed to any other basis for admission of the evidence apart from credibility. We therefore hold that the trial court erred in admitting the disputed evidence pursuant to Rule 404(b).\nHaving concluded that the trial court erred in admitting the disputed evidence, we must determine whether the error was harmless. Defendant bears the burden of demonstrating that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]\u201d N.C. Gen. Stat. \u00a7 15A-1443(a) (2003). Here, we cannot say with certainty that the admission of the evidence of the prior embezzlement was harmless. The evidence against defendant, in the absence of the Bi-Lo incident, was not overwhelming and the result hinged on the jury\u2019s assessment of his credibility. It is significant to this analysis that the jury acquitted defendant of the two counts of embezzlement arising from the 10 June 2001 and 20 June 2001 incidents. State v. McMillan, 55 N.C. App. 25, 33, 284 S.E.2d 526, 531 (1981) (fact that jury acquitted defendant of one of the charges \u201ctakes on added significance\u201d when determining whether error as to second charge was harmless). We conclude that the error was not harmless, and, as a result, the admission of the disputed evidence constituted prejudicial error requiring a new trial.\nNew trial.\nChief Judge MARTIN and Judge BRYANT concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by J. Douglas Hill, Assistant Attorney General, for the State.", "Leslie C. Rawls for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANIEL DELANE COOK, Defendant\nNo. COA02-1582\n(Filed 3 August 2004)\n1. Embezzlement\u2014 sufficiency of evidence \u2014 age\nEvidence that the restaurant from which defendant allegedly embezzled money did not hire anyone under 16 years of age was sufficient for the jury to infer that defendant was 16 on the date of the offense. The trial court correctly denied defendant\u2019s motion to dismiss for insufficient evidence and his request for a jury instruction on age.\n2. Evidence\u2014 prior crimes or bad acts \u2014 introduced by State to attack credibility\nThe trial court erred in an embezzlement prosecution by allowing the State to introduce evidence of a prior incident of embezzlement for which a charge was dismissed under a deferred prosecution agreement where the sole purpose was to attack defendant\u2019s credibility. The distinctions between N.C.G.S. \u00a7 8C-1, Rule 404(b) and Rule 609 may not be blurred.\n3. Evidence\u2014 prior bad act erroneously admitted\u2014 prejudicial\nThere was prejudice in the erroneous introduction of a prior embezzlement in an embezzlement prosecution because the evidence against defendant was not overwhelming and the result hinged on the jury\u2019s assessment of defendant\u2019s credibility.\nAppeal by defendant from judgment entered 27 June 2002 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 September 2003.\nAttorney General Roy Cooper, by J. Douglas Hill, Assistant Attorney General, for the State.\nLeslie C. Rawls for defendant-appellant." }, "file_name": "0630-01", "first_page_order": 662, "last_page_order": 671 }