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CHARACTER EVIDENCE QUICK REFERENCE
reputation – opinion – specific instances of conduct - habit
(pages 4-8)
Character of the Defendant – 404(a)(1)
- _Test: Relevance (to the crime charged)
- 403 balancing; rule of exclusion_
- Defendant gets to go first w/ "good character" evidence – reputation or opinion only ^ State can cross-examine
(see rule 405) as to specific instances of bad character
Law-abidingness ALWAYS relevant
General good character not relevant
Defendant's character is substantive evidence of innocence – entitled to instruction if requested
D's evidence of self-defense does not automatically put character at issue
(pages 8-11)
Character of the victim – 404(a)(2)
- _Test: Relevance (to the crime charged)
- 403 balancing; rule of exclusion_
Defendant gets to go first w/ "bad character" evidence: reputation or opinion only (see rule 405) ^ State can cross-examine as to specific instances of good character
Victim's violent disposition is relevant in self-defense cases to
(1) whether Defendant's fear was reasonable (D has to know about it) ^ not a 404 issue – goes to D's state of mind ^ V's criminal record can be admissible here if relevant to D's state of mind
(2) (D doesn't have to know about it)
whether victim was the aggressor
^ if D doesn't know about it, evidence is carefully limited to ^ V's criminal record not relevant here
close cases
(pages 14-29)
Other acts – 404(b)
_* Test: Proper Purpose + Relevance + Time
- Similarity + 403 balancing; rule of inclusion_
Put basis for ruling in record (including 403 balancing analysis)
D has burden to keep 404(b) evidence out
proper purposes: motive, opportunity, knowledge/intent, preparation/m.o., common scheme/plan, identity, absence of mistake/ accident/entrapment, res gestae (anything but propensity) ^ Credibility is never proper – 608(b), not 404(b)
time: remoteness is less significant when used to show intent, motive, m.o., knowledge, or lack of mistake/accident -
remoteness more significant ^ unless continuous course of conduct, or D is gone
when common scheme or plan (seven year rule)
similarity: particularized, but not necessarily bizarre ^ the more similar acts are, the less problematic time is
convictions generally not 404(b) admissible ^ unless used for motive for assault, malice in DWI murder cases, or statute-based
(pages 12-14)
Habit – 406
_Test: Relevance (to the crime charged)
Used to prove conformity of conduct
Can be opinion or specific instances
Factors: (1) similarity of conduct; (2) number of times; (3) regularity of conduct; (4) reliability of evidence
Habit of doing something (admissible) vs. habit of being something (usually not)
Harder to prove habit of inaction (not doing something) vs. habit of action
Rules 404, 405, and 406
CHARACTER AND HABIT EVIDENCE
Ripley Rand Special Superior Court Judge Advanced Criminal Evidence May 2010
A. Generally Speaking
The general rule:
CHARACTER EVIDENCE IS NOT ADMISSIBLE.
More particularly, character evidence is generally not admissible when offered for the purposes of proving conduct in conformity with the character trait offered.
Character is the actual qualities of an individual; reputation is that person’s standing in the community as viewed by other people. (As noted in State v. Ussery , 118 N.C. 1177 (1896), character is inside a person; reputation is outside a person.) Because of this distinction, courts typically limit the use of character evidence – it is not directly relevant to the charges at hand (except in very limited instances), and there is a danger that the jury will misuse it.
B. Use of Character Evidence
(1) Proof of character can be made in four ways:
Rule 404 Opinion
: Reputation *
Specific Instances of Conduct
Rule 405: Mechanics of how character evidence works
Rule 406: Habit
- Reputation evidence (with associates, or in the community) is a hearsay exception set out in Rule 803(21).
(2) Standard of Proof for Character Evidence: Preponderance of the Evidence
(3) Rule 405 – circumstantial use of character evidence: Where character trait is admissible, proof on direct examination may be made by testimony involving reputation or opinion testimony (circumstantial use of character evidence). Cross-examination of witness who gives reputation or opinion evidence can be made on relevant specific instances of conduct (relevant to the character trait at issue).
- be careful about mere evidence of gang membership , though (as opposed to gang-related activity) – evidence of gang membership must be relevant, as individual has a First Amendment right to association in a gang. Dawson v. Delaware , 503 U.S. 159 (1992), cert. denied , 519 U.S. 844 (1996). See also State v. Gayton , 185 N.C. App. 122 (2007) (admission of evidence about gang membership was error when it was not relevant to drug trafficking charge at issue); State v. Hope , ___ N.C. App. ___, 657 S.E.2d 909 (March 18, 2008) (admission of evidence about gang membership error when not relevant to murder charge). But see also State v. Medina , 174 N.C. App. 723 (2005), rev. denied , 360 N.C. 366 (2006) (admission of gang membership not error when it went to issue of identity); State v. Ruof , 296 N.C. 623 (1979) (same).
(4) Expert opinion as to character trait is INADMISSIBLE. State v. Aguallo , 318 N.C. 590 (1986) (opinion that victim was “believable” is inadmissible); State v. Mixion , 110 N.C. App. 138 (1993), cert. denied , 334 N.C. 437 (1993) (opinion that victim was “not homicidal” in murder case where Defendant claimed self- defense inadmissible); State v. Randall , ___ N.C. App. ___, 2008 N.C. App. Lexis 1995 (November 4, 2008) (unpublished) (opinion that victim gave a "clear and credible disclosure" of sexual assault inadmissible).
IMPORTANT DISTINCTION – Experts can testify as to the credibility of children in general, including the profiles of sexually abused children and whether the victim has characteristics or symptoms that are consistent with the profile. See State v. Kennedy , 320 N.C. 20 (1987); State v. O’Connor , 150 N.C. App. 710 (2002).
Experts can testify as to whether the victim suffered from a psychological or emotional condition that would impair victim’s ability to distinguish fantasy from reality, or to cause victim to fantasize or fabricate in general. State v. Teeter , 85 N.C. App. 624 (1987), rev. denied , 320 N.C. 175 (1987).
BUT experts cannot testify to the effect that victim suffered from a psychological or emotional condition that caused the victim to “make up a story about the assault.” State v. Heath , 316 N.C. 337 (1986).
IMPORTANT DISTINCTION - look out for things that sound like expert’s character assessments about victims but are not – “genuineness” or “reliability” of responses, or that victim “did not seem to be coached.” See State v. Jones , 339 N.C. 114 (1994), cert. denied , 515 U.S. 1169 (1995) (“reliability”); State v. Baymon , 336 N.C. 748 (1994) (victim “did not seem to be coached”); State v. Wise , 326 N.C. 421 (1990), cert. denied , 498 U.S. 853 (1990) (victim’s responses during interview seemed “genuine”).
Expert testimony about Defendant’s specific mental condition (here, that Defendant’s mental state makes him prone to false confessions – the defendant’s personality makes him likely to fabricate stories to reduce stress in confrontation with authority) ruled admissible. See State v. Baldwin , 125 N.C. App. 530 (1997), rev. dismissed , 347 N.C. 348 (1997).
when Defendant does not testify, expert can give opinion as to whether she thought Defendant was “lying” during evaluation, as it went to reliability of information received. State v. Jones , 339 N.C. 114 (1994).
(5) Direct use: Reputation, opinion, and specific instances of conduct evidence are all admissible where character trait is an essential element of a charge, claim, or defense.
- These are very rare in the criminal context. They include entrapment defense, seduction, perjury.
IMPORTANT NOTE – the violent disposition of a victim is NOT an “essential element” of a self-defense claim (as explained further below). So a defendant can offer only reputation and opinion testimony as a general rule. See State v. Wall , ___ N.C. App. ___, 2003 N.C. App. Lexis 392 (April 1, 2003) (unpublished), rev. denied , 357 N.C. 469 (2003).
C. Character Evidence about the Defendant – Rule 404(a)(1)
THE TEST: RELEVANCE + 403 BALANCING
(1) The State can’t get into bad character of Defendant until Defendant puts on evidence of his own good character first. See, e.g. , State v. Syriani , 333 N.C. 350 (1993), cert. denied , 510 U.S. 948 (1993).
Defendant can put evidence of good character on through character witnesses or through Defendant’s own testimony.
A judge can limit the number of character witnesses in an exercise of discretion (403 concerns). State v. McCray , 312 N.C. 519 (1985).
*** Honesty** : Relates to crime of dishonesty (embezzlement, etc.). Does not relate to drug offenses. See Bogle , 324 N.C. 190 (1989)
- While it may not be relevant to the charge, character evidence about honesty of defendant can be relevant when defendant testifies. Cf. Bogle; State v. Cardwell , 133 N.C. App. 496 (1999) (honesty not relevant to DWI, but Defendant didn’t testify).
*** But:** Where D does not testify but made statement to police about which State offers contradictory evidence at trial, D's credibility is "impugned," and D can offer reputation/opinion evidence as to truthfulness. State v. Marecek , 152 N.C. App. 479, 506-07 (2002).
*** Temperance (no drugs/drinking)** : Relates to crime involving drugs or alcohol.
- Reputation evidence that Defendant was not a drug user relevant to charge of drug trafficking. State v. Moreno , 98 N.C. App. 642 (1990).
- Irrelevant character traits include:
*** General “good character” or “moral character”** - see State v. Fultz , 92 N.C. App. 80 (1988); State v. Squire , 321 N.C. 541 (1988).
*** General “psychological make-up”** – an absence of mental health problems, absence of substance abuse problems, absence of sexual attraction to children, absence of “high risk” offender behaviors – all this is inadmissible. State v. Wagoner , 131 N.C. App. 285 (1998), rev. denied , 350 N.C. 105 (1999). But compare with State v. Baldwin , 125 N.C. App. 530 (1997), rev. dismissed , 347 N.C. 348 (1997), about the presence of problems – “evidence in the form of expert testimony as to conditions affecting a person’s mental condition is not character evidence.”)
BUT reputation or opinion evidence about non-use of drug or alcohol can be admissible if tailored to a particular charge involving drug or alcohol use. See Moreno , 98 N.C. App. 642.
history of military service (honorable discharge, etc.) is inadmissible. See State v. Mustafa , 113 N.C. App. 240 (1994), cert. denied , 336 N.C. 613 (1994).
(4) INSTRUCTIONS : The character traits of peacefulness, honesty, law- abidingness, etc., are substantive evidence of a defendant’s guilt or innocence
- so Defendant is entitled to an instruction on this issue if he asks. State v. Bogle , 324 N.C. 190 (1989).
- BUT you only get an instruction as to pertinent traits of character. Law- abidingness plus peacefulness in crimes of violence, or law-abidingness and honesty in crimes of dishonesty, etc.
(5) Once Defendant puts on evidence of his good character, State can cross- examine about specific instances of conduct involving relevant bad character.
State cannot put on reputation or opinion evidence that goes straight to the heart of the charges at issue - where Defendant charged with drug offenses, his reputation for being a drug dealer is not admissible. State v. McBride , 173 N.C. App. 101 (2005), rev. denied , 360 N.C. 179 (2005).
but evidence in a murder trial (or assault) that Defendant had a “temper” would be relevant once Defendant put on evidence of good character. Cf. State v. Stafford , 150 N.C. App. 566 (2002), cert. denied , 357 N.C. 169 (2003).
extrinsic evidence about specific instances would have to be admissible under 404(b) before being let in.
Defendant putting forth evidence of self-defense does not necessarily put character at issue; if evidence only goes to self-defense, then State can’t get into specific instances of unrelated violent conduct (unless independently admissible under 404(b)). See State v. Ammons , 167 N.C. App. 721 (2005); State v. Morgan , 315 N.C. 626 (1986).
(6) IMPORTANT DISTINCTION: The State can argue that Defendant has bad character traits or overall bad character based on the (non-character) evidence presented without violating Rule 404. State v. Taylor , 344 N.C. 31 (1996); State v. Abraham , 338 N.C. 315 (1994).
- BUT the State can’t argue bad general character if the evidence admitted went only to impeach defendant’s credibility. See State v. Tucker , 317 N.C. 532 (1986) (where defendant was cross-examined about assault convictions under 609 as to credibility, State could not argue that Defendant had a violent character).
(7) CAPITAL CASES: Generally, State can present competent relevant evidence about Defendant’s “bad character” during sentencing phase of capital trial when Defendant has placed character at issue by presenting evidence of good character (and to prevent arbitrary imposition of death penalty); this type of evidence also goes to jury’s assessment of mitigating circumstances. State v. Duke , 360 N.C. 110 (2005), cert. denied , ___ U.S. ___, 127 S. Ct. 130 (2006); State v. Williams , 339 N.C. 1 (1994), vacated on other grounds and remanded sub nom. Bryant v. North Carolina , 511 U.S. 1001 (1994).
Where Defendant goes beyond mere consent in rape/sex offense case and puts on evidence that, for example, victim wanted to cheat on spouse, Rule 412 does not apply, and 404(a) allows rebuttal evidence of marital fidelity and good moral character (Defendant opened the door). State v. Sexton , 336 N.C. 321 (1994).
Victim’s reputation for drunkenness not relevant to issue of consent in sexual assault case. State v. Cronan , 100 N.C. App. 641 (1990), rev. dismissed , 328 N.C. 573 (1991).
(4) SELF-DEFENSE CASES: The victim’s violent disposition is relevant in self- defense cases when offered to show two things:
(a) the defendant’s fear or apprehension was reasonable. State v. Watson , 338 N.C. 168 (1994), cert. denied , 514 U.S. 1071 (1995); State v. Winfrey , 298 N.C. 260 (1979).
*Victim’s violent character is relevant ONLY as related to
(1) the reasonableness of Defendant’s fear or apprehension, and
(2) the reasonableness of the Defendant’s use of force.
Defendant had to know about victim’s violent character for this evidence to be admissible.
Evidence about reasonableness of D's fear/apprehension can be reputation, opinion, or specific instances of conduct.
deceased victim’s criminal record is not admissible to show victim's reputation for violence in the community. State v. Corn , 307 N.C. 79 (1982); State v. Adams , 90 N.C. App. 145 (1988).
consequently, State cannot argue that victim's lack of a criminal record goes to show that victim did not have a reputation for violence in the community. State v. Burgess , 76 N.C. App. 534 (1985).
BUT the criminal record of a victim can be admissible to show reasonableness of D's belief or reasonableness of D's use of force where there is evidence that D knew about victim's criminal record. See State v. Jacobs , ___ N.C. ___, 2010 N.C. Lexis 195 (March 12, 2010).
The Supreme Court analyzed this issue under 404(b) and found that introduction of a victim's convictions does not violate the Wilkerson rule (see page 24 infra ) where conviction evidence is relevant.
Watch for mix-and-match evidence – effect of intoxication on victim’s (already) violent disposition is also relevant and therefore admissible. State v. Watson , 338 N.C. 168.
THIS TYPE OF EVIDENCE IS NOT ADMITTED UNDER RULE 404 – it goes to prove Defendant’s state of mind, not to prove conduct of the victim, so 404 does not apply.
(b) the victim was the aggressor. Watson.
It doesn’t matter whether Defendant knew of violent character or not.
if Defendant did not know of violent character of victim at the time, admissibility of victim’s character is carefully limited to when all the evidence in the case is circumstantial or the nature of the transaction is in doubt. State v. Winfrey , 298 N.C. 260 (1979); State v. Everett , 178 N.C. App. 44 (2006), aff’d by an equally divided court , 361 N.C. 217 (2007).
Evidence about whether the victim was the aggressor is admitted under Rule 404(a), as it goes to prove conduct of the victim.
This evidence can be reputation or opinion testimony but not specific instances of conduct (Rule 405 - prior specific acts of violence DO NOT go to essential element of claim of self-defense).
State cannot go ahead and put on evidence of victim’s peacefulness in case-in-chief even where it is obvious that Defendant will put on evidence that victim was aggressor. State v. Faison , 330 N.C. 347 (1991); Buie , ___ N.C. App. ___, 2009 N.C. App. Lexis 48 (January 6, 2009) (unpublished). .
Again, watch for mix-and-match evidence – effect of intoxication on victim’s violent disposition is relevant and therefore admissible. See Watson.
(c) “Reputation” or “opinion” or specific instances of conduct as to sexual orientation of victim is inadmissible – doesn’t go to either reasonableness of defendant’s fear or victim as the aggressor. State v. Laws , 345 N.C. 585 (1997).
E. Habit Evidence – Rule 406
THE TEST: RELEVANCE + 403 BALANCING
(1) What is a habit? Habit evidence involves “systematic conduct” of doing something with “invariable regularity”; where there is a “regular response to a repeated specific situation.” See, e.g. , State v. Hill , 331 N.C. 387 (1992), cert. denied , 507 U.S. 924 (1993). Habit evidence of a person, or of an organization, is admissible to prove that the conduct on a particular occasion was in conformity with the habit.
Difference in habit of doing something (admissible) vs. habit of being something (usually not admissible).
habit of drinking (admissible), not of being drunk/impaired (inadmissible)
"mere evidence” of drunkenness typically does not rise to habit. See Hill , 331 N.C. 387.
habit of abiding by laws (admissible), not of being convicted of breaking laws (inadmissible)
Habit evidence is different from 404(a) character evidence –
It refers to actual conduct of a person instead of character trait.
It is used to prove that the person’s conduct at a certain time was in conformity with conduct at other times.
It can also refer to actions of organizations (businesses, etc.)
It is harder to prove a “negative” habit (a habit of not doing something) than a positive habit (a habit of doing something).
Evidence from witnesses who knew Defendant for more than twenty years that Defendant was not known to carry a gun not sufficient to establish habit. State v. Rice , ___ N.C. App. ___, 2002 N.C. App. Lexis 2317 (August 6, 2002) (unpublished), rev. denied , 356 N.C. 689 (2003).
evidence proffered in this case was more reputation than specific instances or opinion, so didn’t establish habit.
“regular response to repeated specific situation” implies action of some sort, as opposed to inaction in this case.
(2) Standard of proof – preponderance of the evidence.
Habit can be proved two different ways:
opinion of eyewitnesses to habit behavior
specific instances of conduct.
succession of witnesses testifying about relevant conduct on single, separate occasions is OK – Crawford v. Fayez, 112 N.C. App. 328 (1993), rev. denied , 335 N.C. 553 (1994).
You don’t need eyewitnesses or other corroborative evidence of the habit; just sufficient foundation as to how witness knows of habit.
(3) FACTORS in determining habit:
- sufficiency of the foundation -
- BUT habit of other people with same job as an individual not necessarily relevant to establish habit of another individual. Cf. State v. Griffin , 136 N.C. App. 531 (2000), rev. denied , 351 N.C. 644 (2000).
- where victim visited store “two or three times a month,” not enough to show habit. State v. Fair , 354 N.C. 131 (2001), cert. denied , 535 U.S. 1114 (2002).
where victim “always” carried money on person and body was found with no money on it, admitted as habit to support robbery conviction (and therefore felony murder). See State v. Best , 342 N.C. 502 (1996), cert. denied , 519 U.S. 878 (1996); State v. Palmer , 334 N.C. 104 (1993).
where witness had operated breathalyzer machine “around a thousand times” the same way, admitted as habit to show that he complied with statutory provision about running simulator test before Defendant’s test. State v. Tappe , 139 N.C. App. 33 (2000).
- Act itself also does not have to be prior bad act – can be subsequent as long as other tests are met. State v. Hutchinson , 139 N.C. App. 232 (2000).
(3) 404(b) is a rule of inclusion ; other bad acts evidence admissible unless its only probative value is in showing propensity. State v. Berry , 356 N.C. 490 (2002), writ denied , 358 N.C. 236 (2004).
while other criminal offenses may be admissible at trial under 404(b), standard for joinder of different criminal offenses in one trial is different – more stringent standard under N.C. Gen. Stat. § 15A-926(a). State v. Bowen , 139 N.C. App. 18 (2000).
ruling on joinder is not relevant to issue whether evidence is admissible under 404(b). State v. Locklear , ___ N.C. ___, 2009 N.C. Lexis 814 (August 28, 2009).
watch for inadmissible evidence that tries to come in as a part of proper 404(b) evidence – although 404(b) evidence about Defendant’s acquisition of dynamite was properly admitted under 404(b) as part of plan to kill victim, the fact that Defendant stole dynamite is not relevant to plan and therefore not admissible under 404(b). State v. Sullivan , 86 N.C. App. 316 (1987), rev. denied , 321 N.C. 123 (1987).
(4) Standard of Proof: Preponderance of the evidence. Burden is on Defendant to show that the evidence should not be admitted. State v. Moseley , 338 N.C. 1, 32 (1994), cert. denied , 514 U.S. 1091 (1995).
- Evidence may include offenses committed by juveniles if they are Class A-E adult felonies.
(5) Procedure: The preferred way to deal with 404(b) evidence is to first hear it on voir dire outside the presence of the jury, make a ruling, and then bring the jury back in.
Put the basis for your ruling in the record. “Admissible under 404(b)” is not enough – make sure record reflects what the purpose was, time and similarity, 403, etc.
404(b) "specific instance of conduct" evidence is not limited to cross- examination of defendant; can be extrinsic evidence offered in State’s case-in-chief. See State v. Morgan , 315 N.C. 626 (1986).
When you are dealing with evidence on voir dire , Defendant does have right to ask questions on cross outside the presence of the jury to get the whole story on the record for judge to make ruling. Cf. State v. Smith , 152 N.C. App. 514 (2002), rev. denied , 356 N.C. 623 (2002) (presumed error where trial judge refused to let defense counsel ask 404(b)-related questions on voir dire outside presence of jury).
If judge fails to note additional 403 analysis of admitted 404(b) evidence on the record, it is presumed error. See Smith , 152 N.C. App. 514 (presumed error when trial judge does not note 403 analysis on the record); State v. Washington , 141 N.C. App. 354 (2000), disc. rev. denied , 353 N.C. 396 (2001) (no error where trial judge demonstrated 403 analysis in ruling); State v. Rowland , 89 N.C. App. 372, rev. dismissed , 323 N.C. 619 (1988) (evidence of Defendant’s drug addiction inadmissible under 404(b) where trial judge did not make findings as to admissibility under 404(b)).
(6) Proper purposes: (This list is not exclusive – can be for "any purpose" other than to show propensity. See State v. Moseley , 338 N.C. 1, 32 (1994), cert. denied , 514 U.S. 1091 (1995)).
(a) Motive:
***** in drug cases, evidence of other drug violations is often admissible to prove motive where the other acts go to the chain of events explaining the context, motive, and set-up of the crime and are naturally a part of telling the whole story of the crime to the jury. State v. Williams , 156 N.C. App. 661 (2003); see also State v. Welch , ___ N.C. App. ___, 2008 N.C. App. Lexis 1741 (October 7, 2008).
evidence of prior drug dealing went to motive in murder case where there was a dispute between Defendant and victim over manner in which drug money was to be distributed. State v. Lundy , 135 N.C. App. 13 (1999), rev. denied , 351 N.C. 365 (2000).
evidence of prior drug possession can go to motive in breaking and entering cases. See State v. Martin , ___ N.C. App. ___, 2008 N.C. App. Lexis 1447 (August 5, 2008) (unpublished) (motivation for money – also goes to res gestae ; see below).
evidence of prior sex offense against victim A went to motive to murder victim B where previous sex offense was discovered and Defendant could have feared that victim B would report him. State v. Coffey , 326 N.C. 268 (1990).
- evidence of previous drug sales (2½ years prior to offense date) was relevant to D's intent to commit offense of maintaining dwelling to keep controlled substances – since maintaining dwelling offense occurs over time, 2 ½ year period not too remote. State v. Rogers , ___ N.C. App. ___, 2009 N.C. App. Lexis 1284 (August 4, 2009) (unpublished).
(d) Preparation/plan/ modus operandi :
with sex offenses, evidence of preparation or plan involving pornography and other sexual paraphernalia must be tied to actual conduct with victim – introduction of sexually related evidence that is not related to conduct with victim at issue is error. Compare State v. Smith , 152 N.C. App. 514 (2002), rev. denied , 356 N.C. 623 (2002) (admission of unrelated pornographic videos and magazines is error) with State v. Rael , 321 N.C. 528 (1988) (admission of pornographic videos and magazines not error where defendant had showed them to victim).
See also State v. Maxwell , 96 N.C. App. 19 (1989), rev. denied , 326 N.C. 53 (1990) (defendant’s nudity and fondling himself not admissible where not related to any activity with victim); State v. Owens , ___ N.C. App. ___, 2009 N.C. App. Lexis 785 (May 19, 2009) (unpublished) (admission of incest-related and child pornography found on computer not error where D "considered himself to be uncle" to victim – also went to motive and intent).
gang activity involving drug dealing and robberies can go to modus operandi. State v. Hightower , 168 N.C. App. 661, disc. rev. denied , 359 N.C. 639 (2005).
domestic violence assault against different victim from 17 years earlier admissible under 404(b) where there were numerous similarities in the way the different assaults were carried out. State v. Brooks , 138 N.C. App. 185 (2000).
where Defendant was charged with sexual offenses involving son, evidence of sex offenses involving daughter also admissible to establish plan to molest his children. State v. DeLeonardo , 315 N.C. 762 (1986); see also State v. Owens , ___ N.C. App. ___, 2009 N.C. App. Lexis 785 (May 19, 2009) (unpublished) (admission of evidence that D molested one sister not error as to trial involving molestation of other sister during same general time period).
(e) Identity:
State can only use 404(b) for identity when identity is at issue in the case. State v. White , 101 N.C. App. 593 (1991), rev. denied , 329 N.C. 275 (1991).
where evidence showed more than one possible perpetrator, 404(b) evidence of domestic violence against child’s mother went to issue of identity of father as the perpetrator and was therefore admissible. State v. Carrilo , 149 N.C. App. 543 (2002).
where Defendant “pleaded not guilty and denied that he was the assailant,” identity was at issue, so 404(b) evidence to issue of identity was proper. State v. Gilliam , 317 N.C. 293 (1986); State v. Morgan , 359 N.C. 131 (2004), cert. denied , 546 U.S. 830 (2005).
where Defendant admits identity during opening statement, identity may no longer be at issue. Cf. White.
where officers knew Defendant from "past experiences" with him, use of 404(b) evidence was proper as to issue of identity. State v. Valentine , ___ N.C. App. ___, 2009 N.C. App. Lexis 1651 (October 20, 2009) (unpublished).
be mindful of Rule 403 concerns with respect to how much information you let in about those "past experiences" like this, though.
similar types of injuries to other victims admissible to show identity. State v. Burr , 341 N.C. 263 (1995), cert. denied , 517 U.S. 1123 (1996).
use of same gun in multiple robberies/shootings sufficient to show identity. State v. Brockett , 185 N.C. App. 18 (2007), rev. denied , 361 N.C. 697 (2007).
since evidence of other similar crimes can be admissible against defendant at trial, defendant can also offer 404(b) evidence of other similar crimes to show that someone else committed the offense at issue (doesn’t just go to identity of defendant). State v. Cotton , 318 N.C. 663 (1987).
