I.General Consideration.

This rule sets a standard to which trial judges must adhere in determining whether proffered evidence is relevant; at the same time, this standard gives the judge great freedom to admit evidence because the rule makes evidence relevant if it has any logical tendency to prove any fact that is of consequence. State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226, 1991 N.C. App. LEXIS 1070 (1991), cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241, 1992 U.S. LEXIS 6406 (1992).

Rulings on Relevance Given Great Deference. —

Even though a trial court’s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226, 1991 N.C. App. LEXIS 1070 (1991), cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241, 1992 U.S. LEXIS 6406 (1992).

Compliance with the facial requirements of Rule 901(a), regarding authentication and identification, does not mean (i) that an exhibit automatically qualifies as relevant under Rule 401 or (ii) if relevant, that it is admissible under Rule 802, the hearsay rule. State v. Patterson, 103 N.C. App. 195, 405 S.E.2d 200, 1991 N.C. App. LEXIS 645 (1991), aff'd, 332 N.C. 409, 420 S.E.2d 98, 1992 N.C. LEXIS 476 (1992).

While G.S. 8C-1, N.C. R. Evid. 411 does not prohibit the admission of evidence of liability insurance to establish agency, the evidence must still meet the relevancy requirements of G.S. 8C-1, N.C. R. Evid. 401 to be admissible. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436, 2005 N.C. App. LEXIS 18 (2005).

Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. State v. Sloan, 316 N.C. 714, 343 S.E.2d 527, 1986 N.C. LEXIS 2409 (1986); State v. Wingard, 317 N.C. 590, 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986); State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911, 1989 N.C. LEXIS 479 (1989); State v. Murillo, 349 N.C. 573, 509 S.E.2d 752, 1998 N.C. LEXIS 851 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310 (1999).

Evidence is relevant if it can assist the jury in understanding the evidence. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, 1990 N.C. App. LEXIS 826 (1990).

Every circumstance that is calculated to throw any light upon the supposed crime is admissible; the weight of such evidence is for the jury. State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911, 1989 N.C. LEXIS 479 (1989).

The court has interpreted this rule broadly and has explained on a number of occasions that in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. State v. Collins, 335 N.C. 729, 440 S.E.2d 559, 1994 N.C. LEXIS 107 (1994).

Even though evidence may tend to show other crimes, wrongs or acts by the defendant, and his propensity to commit them, it is admissible under G.S. 8C-1, Rule 404(b) so long as it is also relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

An individual piece of evidence need not conclusively establish a fact to be of some probative value. It need only support a logical inference of the fact’s existence. State v. Payne, 328 N.C. 377, 402 S.E.2d 582, 1991 N.C. LEXIS 263 (1991).

When Relevant Hearsay Is Admissible. —

Hearsay evidence, even if relevant, is inadmissible unless it is covered by statutory exception, or unless its exclusion deprives a defendant of a trial in accord with fundamental standards of due process. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989) sentence vacated and remanded for further consideration at 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990) in light of State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651, 1988 N.C. App. LEXIS 278 (1988).

When Evidence Is Irrelevant. —

If proffered evidence has no tendency to prove a fact in issue in the case, the evidence is irrelevant and must be excluded. State v. Coen, 78 N.C. App. 778, 338 S.E.2d 784, 1986 N.C. App. LEXIS 2013 (1986).

Admission of irrelevant evidence is generally considered harmless error. State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379, 1987 N.C. App. LEXIS 2714 (1987).

Admission of irrelevant evidence will be treated as harmless unless the defendant shows that he was so prejudiced by the erroneous admission that a different result would have ensued if the evidence had been excluded. State v. Harper, 96 N.C. App. 36, 384 S.E.2d 297, 1989 N.C. App. LEXIS 938 (1989).

Defendant has the burden of showing that he was prejudiced by the admission of evidence. In order to show prejudice, defendant must meet the statutory requirements of G.S. 15A-1443(a). State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379, 1987 N.C. App. LEXIS 2714 (1987).

When relevant evidence not involving a right arising under the Constitution of the United States is erroneously excluded, a defendant has the burden of showing that the error was prejudicial. This burden may be met by showing that there is a reasonable possibility that a different result would have been reached had the error not been committed. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895, 1988 N.C. LEXIS 239 (1988).

Admission of Evidence Held Prejudicial Error. —

Where the challenged evidence that defendant was in custody for assault with a deadly weapon with intent to kill his girlfriend was especially prejudicial because of its similarity to the charge at issue, which was murder and assault with a deadly weapon with intent to kill, and the similarity of the charges was compounded by the additional “verification” evidence of a detective, such admissions constituted prejudicial error and defendant was entitled to a new trial. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566, 1988 N.C. LEXIS 465 (1988).

Cumulative Effect of Admitted Evidence Held Prejudicial. —

Where, in a murder prosecution, the State spent a great deal of time focusing on the details of defendant’s alleged prior offenses of selling marijuana to high school students, citation for possession of marijuana, and breaking and entering, the cumulative effect of the admission of the evidence was prejudicial error entitling the defendant to a new trial. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, 1988 N.C. App. LEXIS 722 (1988).

Admission of Evidence Held Not Prejudicial Error. —

In prosecution for rape, first-degree kidnapping, sexual offense, and common law robbery, the admission of the officer’s testimony that the defendant had a rifle in his car when he was arrested, if error, was not prejudicial, where there was no intimation by the officer that the defendant attempted to use the rifle when he was arrested, that it was used in the commission of any crime or that possession of the rifle was otherwise unlawful. State v. Herring, 322 N.C. 733, 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Defendant failed to show that any error in overruling the defendant’s objection and motion to strike testimony was prejudicial because a special agent had not begun testifying about the defendant’s case in particular but was speaking generally about the nature of the agent’s work; the special agent explained that when no DNA match was found, the person in question could not have committed the crime and did not affirmatively state that when a match was found, the subject definitely committed the crime. State v. Hurt, 235 N.C. App. 174, 760 S.E.2d 341, 2014 N.C. App. LEXIS 739 (2014).

Even if the trial court erred by admitting a forensic psychologist’s report and testimony, any error was non-prejudicial because the State presented other abundant evidence of defendant’s guilt; defendant failed to carry his burden of showing that had the psychologist’s report and corresponding testimony not been admitted at trial, a reasonable possibility existed that the jury would have reached a different result; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Even if the trial court erred in admitting song lyrics defendant wrote, the error was not prejudicial due to the other abundant evidence of defendant’s guilt. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Evidence of Defendant’s Behavior. —

Trial court did not abuse its discretion by admitting evidence of the defendant’s anti-social and disruptive behavior while in custody awaiting trial for the purpose of impeaching the defendant’s credibility. State v. Myers, 123 N.C. App. 189, 472 S.E.2d 598, 1996 N.C. App. LEXIS 690 (1996).

Evidence of Credentials. —

Evidence of the physical locations of the universities listed on the resume and diplomas of defendant, a naturopath, was relevant since it showed that he held himself out as a medical doctor. State v. Perry, 159 N.C. App. 30, 582 S.E.2d 708, 2003 N.C. App. LEXIS 1435 (2003).

In deciding whether evidence of insurance should be received under G.S. 8C-1, N.C. R. Evid. 411, a trial court should engage in the following analysis: (1) Is the insurance coverage offered for a purpose other than to show that a person acted negligently or otherwise wrongfully; (2) If so, is the evidence relevant to show that other purpose; and (3) If so, is the probative value of the relevant evidence substantially outweighed by the factors set forth in G.S. 8C-1, N.C. R. Evid. 403. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436, 2005 N.C. App. LEXIS 18 (2005).

Error Alleged on Appeal Not Preserved. —

Defendant’s claim that certain testimony was erroneously admitted was not preserved for purposes of appeal because defendant claimed, on appeal, that the testimony was irrelevant, under G.S. 8C-1, N.C. R. Evid. 401 and 402, and that the testimony was unduly prejudicial, under G.S. 8C-1, N.C. R. Evid. 403, but defendant did not make these specific objections at trial, nor were such objections apparent from the context, under N.C. R. App. P. 10(b)(1), from which it appeared that defendant made a hearsay objection. State v. Hueto, 195 N.C. App. 67, 671 S.E.2d 62, 2009 N.C. App. LEXIS 62 (2009).

Invited Error. —

With regard to witness testimony about defendant’s alleged molestation of another girl, defendant elicited that testimony on cross-examination of the State’s witnesses, and made no motion to strike the testimony; thus, any error was invited error and defendant could not be prejudiced as a matter of law. State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845, 2012 N.C. App. LEXIS 1444 (2012).

II.Relevant Evidence.

Background Evidence. —

Evidence which is essentially background in nature is universally offered and admitted as an aid to understanding. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799, 1986 N.C. App. LEXIS 2102 (1986).

Amount of Damages in Personal Injury Action. —

Where the determination to be made in a personal injuries action was the amount of damages, any fact bearing on the degree or severity of injury sustained by plaintiff was properly admitted. Ferrell v. Frye, 108 N.C. App. 521, 424 S.E.2d 197, 1993 N.C. App. LEXIS 85 (1993).

Evidence concerning the speed the defendant’s vehicle was traveling when it struck the rear of the plaintiffs’ vehicle was relevant to the extent of the plaintiffs’ injuries, and thus was relevant to the issue of damages. Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319, 1998 N.C. App. LEXIS 1389 (1998).

Passenger’s testimony regarding the force of the impact was relevant to determining damages for the injured party and thus, the trial court did not abuse its discretion in admitting said testimony. Dunn v. Custer, 162 N.C. App. 259, 591 S.E.2d 11, 2004 N.C. App. LEXIS 112 (2004).

Evidence that another person committed the crime for which defendant is charged generally is relevant and admissible, as long as it does more than create an inference or conjecture in this regard; under this rule, such evidence must tend both to implicate another and be inconsistent with the guilt of the defendant. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987), overruling prior decisions to the extent that they tend to indicate that a defendant may not present evidence to show that the crime charged was committed by another unless the crime was one that only could have been committed by one person acting alone. See also, State v. Brewer, 325 N.C. 550, 386 S.E.2d 569, 1989 N.C. LEXIS 604 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541, 1990 U.S. LEXIS 2638 (1990).

Excluded evidence which showed that within a few hours during the same night three homes in close proximity were broken into, the female occupants were sexually assaulted, and the modus operandi in each case was very similar, which tended to show that the same person committed all of the similar crimes in the neighborhood in question on that night and that the person was someone other than the defendant, was both relevant and admissible under this rule, and the trial court erred in ruling to the contrary. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277, 1987 N.C. LEXIS 1810 (1987).

The defendant was entitled to a new trial because a different result might have been reached had the trial court not excluded relevant and admissible evidence which cast doubt upon the State’s evidence that defendant was the perpetrator of the murder of an elderly victim and which further implicated another person as that perpetrator beyond conjecture or mere implication. State v. Israel, 353 N.C. 211, 539 S.E.2d 633, 2000 N.C. LEXIS 912 (2000).

Trial court did not err in not permitting defendant to introduce evidence that three other people may have been responsible for the crimes for which he was tried because the evidence did not tend both to implicate the others and to be inconsistent with the guilt of defendant. State v. Williams, 355 N.C. 501, 565 S.E.2d 609, 2002 N.C. LEXIS 538 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808, 2003 U.S. LEXIS 128 (2003).

Out-of-Court Statements Relevant. —

Defendant’s out-of-court statements were not hearsay; the sergeant testified that defendant was not in custody or under arrest at the time of the conversation, and after being advised that she could leave at any time, defendant willingly spoke to him. The statements were relevant and admissible. State v. Abbitt, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

Witness’ testimony in which he stated he was “pretty sure” that defendant had admitted to killing victim was relevant to the issue of the identification of defendant and not unfairly prejudicial. State v. Moses, 350 N.C. 741, 517 S.E.2d 853, 1999 N.C. LEXIS 882 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826, 2000 U.S. LEXIS 693 (2000), writ denied, 356 N.C. 442, 573 S.E.2d 160, 2002 N.C. LEXIS 1214 (2002), writ denied, 357 N.C. 510, 588 S.E.2d 380, 2003 N.C. LEXIS 1188 (2003), writ denied, 360 N.C. 652, 639 S.E.2d 57, 2006 N.C. LEXIS 1199 (2006), cert. denied, 365 N.C. 93, 706 S.E.2d 246, 2011 N.C. LEXIS 121 (2011).

Testimony Defendant Attempted to Procure False Alibi. —

Evidence that defendant attempted to procure a false alibi from a former girlfriend was relevant and, thus, admissible. State v. Rankin, 191 N.C. App. 332, 663 S.E.2d 438, 2008 N.C. App. LEXIS 1320 (2008).

Videotaped interview, initiated by defendant herself and containing the story as told to her family, police, doctors and the news reporter, was relevant to show how she lied consistently concerning the cause of the injuries leading to her child’s death and, even if wrongly admitted into evidence, was not prejudicial. State v. Burgess, 134 N.C. App. 632, 518 S.E.2d 209, 1999 N.C. App. LEXIS 866 (1999).

Defendant’s videotaped statement made in the back of a patrol car during a conversation with an officer was admissible; the defendant was not being interrogated by the officer at the time and Miranda warnings therefor were not required, the statement was relevant to the crime, and the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. State v. Gantt, 161 N.C. App. 265, 588 S.E.2d 893, 2003 N.C. App. LEXIS 2055 (2003).

Although defendant pled guilty, videotape showing murder was admissible as it showed that the murder was committed for pecuniary gain and that the murder was part of a course of conduct which included a crime of violence against another person. State v. Jones, 336 N.C. 229, 443 S.E.2d 48, 1994 N.C. LEXIS 242 (1994), cert. denied, 513 U.S. 1003, 115 S. Ct. 518, 130 L. Ed. 2d 423, 1994 U.S. LEXIS 8076 (1994), writ denied, 339 N.C. 619, 454 S.E.2d 263, 1995 N.C. LEXIS 74 (1995).

The witness’s plea agreement with the State, in which she agreed to testify against the defendant, was relevant to her credibility and therefore properly admitted. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633, 2000 N.C. App. LEXIS 1266 (2000), writ denied, 353 N.C. 392, 547 S.E.2d 33, 2001 N.C. LEXIS 46 (2001).

Evidence to Indicate Defendant Was Racist. —

In trial for murder, evidence which indicated that defendant was a racist was relevant where no evidence other than race as to why victim was singled out for abuse appeared from the record. State v. Wynne, 329 N.C. 507, 406 S.E.2d 812, 1991 N.C. LEXIS 527 (1991).

Testimony Regarding Victim’s Behavior. —

Testimony of a lay witness as to a child sexual abuse victim’s behavior before and after the alleged sexual abuse was relevant as to whether the abuse occurred. State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212, 2001 N.C. App. LEXIS 860 (2001), aff'd, 560 S.E.2d 148, 2002 N.C. LEXIS 82 (2002), cert. dismissed, 364 N.C. 612, 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010).

Under a plain error analysis, because of the defendant’s failure to object at trial, testimony explaining the murder victim’s various employment duties, responsibilities, and performance was admissible as it showed why the victim worked late nights; additionally, the testimony was relevant to describe the victim’s payday routine as well as where and how he kept his money. State v. Barden, 356 N.C. 316, 572 S.E.2d 108, 2002 N.C. LEXIS 1115 (2002), cert. denied, 538 U.S. 1040, 123 S. Ct. 2087, 155 L. Ed. 2d 1074, 2003 U.S. LEXIS 3818 (2003).

Testimony Regarding Mental State. —

Where doctor was allowed to testify about defendant’s mental state at the time of the murders and gave his opinion that defendant did not form the specific intent to kill, but was not allowed to give his opinion that the defendant “snapped”, defendant received a fair trial, free of prejudicial error. State v. Burgess, 345 N.C. 372, 480 S.E.2d 638, 1997 N.C. LEXIS 6 (1997).

Murder defendant was not prejudiced by the testimony of defendant’s case manager as to defendant’s frustration and desire to leave a homeless shelter and that defendant was irritated and argumentative. State v. Williams, 355 N.C. 501, 565 S.E.2d 609, 2002 N.C. LEXIS 538 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808, 2003 U.S. LEXIS 128 (2003).

Testimony of a victim of armed robbery as to how she felt when the gun was placed to her head was relevant, pursuant to G.S. 8C-1, Rule 401, in that her testimony as to her fear for her life and her intimidation proved the main element of the offense of robbery with a dangerous weapon in violation of G.S. 14-87. State v. Jackson, 161 N.C. App. 118, 588 S.E.2d 11, 2003 N.C. App. LEXIS 1980 (2003).

Testimony by two of the adult armed robbery victims as to the children’s state of mind was relevant to suggest that their lives were endangered and threatened by defendant’s actions. State v. Anderson, 181 N.C. App. 655, 640 S.E.2d 797, 2007 N.C. App. LEXIS 410 (2007).

In defendant’s criminal trial on a variety of charges, arising from a vehicular incident that resulted in deaths, a trial court properly allowed admission of testimony regarding defendant’s prior failure to take a breath test and defendant’s conviction for driving while intoxicated, as such was relevant under N.C. R. Evid. 401 and 402 to show defendant’s knowledge that the driver’s license was suspended and to show malice, which was an element of one of the charged offenses; further, the evidence was properly admitted for the purpose of showing defendant’s intent and it was not unfairly prejudicial under N.C. R. Evid. 404(b) and 403. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299, 2007 N.C. App. LEXIS 2253 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214, 2009 N.C. LEXIS 823 (2009).

Testimony of detention officers was relevant to whether defendant suffered from a mental illness, as defendant claimed for purposes of insanity and diminished capacity defenses; this testimony would have allowed the jury to infer that the mental health condition was due to mental illness rather than substance abuse and supported defendant’s contention that defendant’s behavior was the result of not being medicated for mental illness. State v. Shareef, 221 N.C. App. 285, 727 S.E.2d 387, 2012 N.C. App. LEXIS 765 (2012).

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent’s reassignment shouldn’t have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn’t have happened was admissible in an administrative hearing to show the declarants’ existing mental states and motives. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50, 2016 N.C. App. LEXIS 505 (2016).

Domestic violence evidence was relevant to offer an explanation as to why the victim delayed reporting and aided the jury’s understanding of the victim’s PTSD diagnosis; additionally, the domestic violence evidence was not more prejudicial than probative because it went directly to the victim’s credibility. State v. Betts, 2021-NCSC-68, 377 N.C. 519, 858 S.E.2d 601, 2021- NCSC-68, 2021 N.C. LEXIS 541 (2021).

Expert Testimony Regarding Post Traumatic Stress Disorder. —

If believed, expert testimony regarding post traumatic stress disorder could be helpful to jury in understanding behavioral patterns of sexual assault victims. North Carolina Court of Appeals and courts of other jurisdictions have recognized reliability of post traumatic stress disorder testimony in sexual assault cases. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, 1990 N.C. App. LEXIS 826 (1990).

Evidence Pertaining to Parental Relations of Decedent in Wrongful Death Action. —

Evidence pertaining to disease of plaintiff’s decedent and the effect it had on his relationship with his parents had a tendency to prove the extent of damages, which were in controversy in wrongful death action. The evidence was therefore relevant and should have been admitted on that ground. Hales v. Thompson, 111 N.C. App. 350, 432 S.E.2d 388, 1993 N.C. App. LEXIS 798 (1993).

Evidence of Sexually-Transmitted Disease in Sexual Abuse Case. —

In a sexual abuse prosecution, testimony from a public health department that defendant and the victim were both diagnosed with and treated for gonorrhea at approximately the same time, according to the department’s records, was relevant, under G.S. 8C-1, N.C. R. Evid. 401, to show that the victim had sexual contact with an infected person and defendant was an infected person. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643, 2002 N.C. App. LEXIS 1606 (2002).

Evidence of Sexual Activity in Paternity Case. —

Character evidence is generally not admitted in civil cases unless it is character which is in issue because this evidence is often more prejudicial than probative. Where, however, evidence of sexual activity and promiscuity goes to a central element of the case, i.e., the opportunity to impregnate plaintiff, whether or not other men had the opportunity to father child born out of wedlock is of ultimate relevance to the issue of paternity. In addition, this nongenetic outside information, as a factor in the probability of paternity calculation, must be received in order for the jury to weigh any expert’s assumptions underlying the calculation of numerical probability of paternity. State ex rel. Williams v. Coppedge, 105 N.C. App. 470, 414 S.E.2d 81, 1992 N.C. App. LEXIS 259, rev'd, 332 N.C. 654, 422 S.E.2d 691, 1992 N.C. LEXIS 578 (1992).

Evidence from a Void Statutory Rape Charge. —

The court rejected the defendant’s claim that the admission of evidence on a void statutory rape charge was irrelevant and unfairly prejudicial and found that the evidence of defendant’s sexual activity with the fourteen-year-old was relevant to establish intent, motive, knowledge, as well as defendant’s scheme of involving himself with vulnerable, disturbed teenage girls at the home. State v. Crockett, 138 N.C. App. 109, 530 S.E.2d 359, 2000 N.C. App. LEXIS 548 (2000).

Evidence of Previous Traffic Violations. —

The defendant’s previous traffic violations were relevant and admissible in his second-degree murder prosecution arising from a traffic accident to show malice based on defendant’s “depraved heart” on the night that he struck the two victims’ vehicle while intoxicated and while rounding a sharp curve at a speed at least 40 mph over the speed limit. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441, 1999 N.C. App. LEXIS 193 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299, 2000 N.C. LEXIS 239 (2000).

Trial court properly allowed plaintiff’s attorney to ask defendant motorist about traffic citations he received that resulted in a conviction, because the evidence was relevant to the issue of whether defendant company was liable for negligent entrustment because it employed the motorist and allowed him to drive a company van. Campbell v. McIlwain, 163 N.C. App. 553, 593 S.E.2d 799, 2004 N.C. App. LEXIS 399 (2004).

Police Officer’s Opinion Relevant. —

Where a defendant made a general objection to a police officer’s testimony and not a specific objection to the officer’s qualification as an expert, the admissibility of the officer’s testimony was not preserved for review, and because the testimony was in the form of an opinion based on the officer’s expertise and was likely to assist the jury, the testimony was not patently inadmissible or prejudicial. State v. White, 154 N.C. App. 598, 572 S.E.2d 825, 2002 N.C. App. LEXIS 1520 (2002).

Deputy’s testimony that defendant fell over when the deputy asked defendant to stand on one leg and hop was relevant to the deputy’s lay opinion that defendant was impaired. State v. Streckfuss, 171 N.C. App. 81, 614 S.E.2d 323, 2005 N.C. App. LEXIS 1190 (2005).

Medical Opinion Relevant. —

Court did not err in admitting doctor’s opinion that victims wound was consistent with the victim leaning over a chair when he was shot. State v. Cummings, 346 N.C. 291, 488 S.E.2d 550, 1997 N.C. LEXIS 480 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873, 1998 U.S. LEXIS 713 (1998).

Medical Records Relevant. —

The court properly allowed evidence of the plaintiff’s medical records indicating the possibility of a history of alcohol abuse to explain the reason defendants considered the possibility that alcohol withdrawal was a potential cause of the plaintiff’s post-operative confusion or hallucinations. Marley v. Graper, 135 N.C. App. 423, 521 S.E.2d 129, 1999 N.C. App. LEXIS 1151 (1999), cert. denied, 351 N.C. 358, 542 S.E.2d 214, 2000 N.C. LEXIS 94 (2000).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent’s child were admissible in a wrongful death and medical malpractice action because the personal representative failed to carry the burden to show that the records were unfairly prejudicial, or that the trial court abused its discretion in admitting the prior records into evidence. The prior records illustrated a complete picture of the decedent’s mental health and were relevant concerning causation and damages. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150, 2015 N.C. App. LEXIS 905 (2015).

Dreams and Diary Relevant. —

Testimony from witness about her dreams and diary entry when first incarcerated was relevant under this rule and admissible under Rule 403; however, references to later bad dreams were properly excluded. State v. Jones, 347 N.C. 193, 491 S.E.2d 641, 1997 N.C. LEXIS 656 (1997).

Song Lyrics Written by Defendant. —

Trial court did not err in admitting song lyrics defendant wrote because in light of the similarities between the lyrics and the facts surrounding the charged offense, the lyrics were relevant to establish identity, motive, and intent, and their probative value substantially outweighed their prejudicial effect to defendant. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Victim’s Character. —

Evidence that defendant had murdered a blood relative who had opened her home to him, had been especially caring, and had offered him a stable environment was admissible as it tended to support the aggravating circumstance that the murder was especially heinous, atrocious or cruel. State v. Davis, 353 N.C. 1, 539 S.E.2d 243, 2000 N.C. LEXIS 897 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 95, 151 L. Ed. 2d 55, 2001 U.S. LEXIS 5852 (2001).

Evidence that the murder victim’s last words were “I’m not scared of you. I’m a Christian,” was admissible because it was offered not to show the good character of the victim, but instead it was offered as circumstantial evidence of defendant’s state of mind when he was approaching the victim before he shot and killed the victim. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569, 2007 N.C. App. LEXIS 2192 (2007).

Trial court did not err in admitting the testimony of the victim’s mother about the victim’s involvement with drugs or a photo showing the victim before the victim started using drugs. Pursuant to G.S. 8C-1, N.C. R. Evid. 401, the evidence was relevant to support the State’s theory that the murder of the victim by defendant and another man was drug-related and to show the victim’s health before the victim became involved with drugs. State v. Hope, 189 N.C. App. 309, 657 S.E.2d 909, 2008 N.C. App. LEXIS 544 (2008).

Report in Defamation Case. —

Report did not demonstrate the substantial truth of the statements in question or the articles generally, did not address whether plaintiff’s work was deficient, and did not address the accuracy of the actual work; thus, the report was not relevant; even if the report had some relevance, it was substantially outweighed by the danger of unfair prejudice, as the report was an interim report and recommended further investigation, and that investigation confirmed that plaintiff’s analysis was accurate. Desmond v. News & Observer Publ'g Co., 263 N.C. App. 26, 823 S.E.2d 412, 2018 N.C. App. LEXIS 1272 (2018), aff'd in part, rev'd, 375 N.C. 21, 846 S.E.2d 647, 2020 N.C. LEXIS 698 (2020).

Evidence of Decedent’s Drinking Habits Held Relevant. —

Although evidence of decedent’s drinking habits did not by itself show that decedent knew defendant was under the influence, all of the evidence of decedent’s drinking habits, along with the evidence of defendant’s drinking on the day of the accident, established that decedent’s prior use of alcohol and his knowledge of its effect was relevant on the issue of contributory negligence for riding with intoxicated driver. McFarland v. Cromer, 117 N.C. App. 678, 453 S.E.2d 527, 1995 N.C. App. LEXIS 63, cert. denied, 340 N.C. 114, 458 S.E.2d 183, 1995 N.C. LEXIS 206 (1995).

Evidence of the Method Used by the Defendant in Loading Merchandise After the Accident. —

Since plaintiff allegedly had been injured by merchandise falling from the defendant’s trailer, defendant’s employee was properly permitted to testify that he had observed the method by which defendant loaded and packed its trailers and that he had observed merchandise fall out of the trailers when the rear doors were opened. The observations were not too remote in time (within 18 months) and allowed a reasonable inference that the same methods had been used to load the trailer involved in plaintiff’s injury. Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644, 531 S.E.2d 883, 2000 N.C. App. LEXIS 791 (2000).

Surveillance Video of Personal Injury Plaintiffs Admissible. —

A surveillance videotape was relevant and admissible in a personal injury trial on damages, where the occupants of a van were shown engaging in various physical activities, and this evidence was relevant to whether and to what extent the occupants were disabled by the injuries they sustained in a rear end collision. Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319, 1998 N.C. App. LEXIS 1389 (1998).

When a former patient testified regarding the patient’s health condition during the liability portion of the bifurcated trial in a medical malpractice action, the health care providers were allowed to present videotape surveillance evidence of the patient because the evidence was relevant to impeaching the patient’s testimony. Hill v. Boone, 279 N.C. App. 335, 865 S.E.2d 722, 2021- NCCOA-490, 2021 N.C. App. LEXIS 512 (2021).

A jury view of the police vehicle that defendant shot during incident was well within the court’s discretion and the evidence was relevant as defendant’s intent when he fired shots into the vehicle was at issue. State v. Tucker, 347 N.C. 235, 490 S.E.2d 559, 1997 N.C. LEXIS 647 (1997), cert. denied, 523 U.S. 1061, 118 S. Ct. 1389, 140 L. Ed. 2d 649, 1998 U.S. LEXIS 2344 (1998).

Weapons Evidence Admissible. —

The drawing of and testimony about a knife that the defendant habitually carried was admissible where the witnesses’ descriptions of the approximate size of defendant’s pocketknife overlapped with the medical examiner’s testimony regarding the approximate depth and width of the victim’s wounds; any variance in size between the knife described by the witnesses and the medical examiner’s description of the victim’s wounds merely affected the weight or probative value of the evidence, not its admissibility. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713, 2000 N.C. LEXIS 895 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5838 (2001).

Presence of a gun was relevant to the charges of possession of cocaine with intent to manufacture, sell, or deliver, and trafficking in cocaine. State v. Boyd, 177 N.C. App. 165, 628 S.E.2d 796, 2006 N.C. App. LEXIS 854 (2006).

Evidence that defendant who shot a police officer with a shotgun possessed an assault rifle was relevant and was not more prejudicial than probative; evidence showed why defendant was in a field and why he used the shotgun rather than the rifle, and it was also highly probative of defendant’s motive for the shooting: not wanting the victim to discover that defendant was violating his probation by possessing firearms. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258, 2006 N.C. App. LEXIS 1637 (2006).

Admission of photos of guns found in defendant’s home in a case charging defendant with drug trafficking and possession was proper because such evidence was relevant, and because guns were often used for protection in illegal drug trade, probative value was not substantially outweighed by danger of unfair prejudice. State v. Lakey, 183 N.C. App. 652, 645 S.E.2d 159, 2007 N.C. App. LEXIS 1093 (2007).

Victim’s testimony regarding the shiny object in defendant’s hand, which the victim thought to be a knife, was relevant to the first-degree rape charge. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898, 2008 N.C. App. LEXIS 1509 (2008), aff'd, 363 N.C. 118, 678 S.E.2d 658, 2009 N.C. LEXIS 231 (2009).

Knife found four years after the victim’s murder was determined to be relevant and admissible, where the trial court found that the description defendant provided to his wife of the knife used matched that of the knife found, defendant was in close proximity to the area where the knife was found at a time very recently after the death of the victim, and the knife matched the description of the type of knife that would have caused the victim’s wounds. State v. Rollins, 226 N.C. App. 129, 738 S.E.2d 440, 2013 N.C. App. LEXIS 279 (2013).

Three loose nine-millimeter cartridges turned over to investigators by the manager of the trailer park where defendant lived and where bodies were discovered were properly included as relevant evidence and an adequate foundation was laid for their inclusion. State v. Lytch, 142 N.C. App. 576, 544 S.E.2d 570, 2001 N.C. App. LEXIS 188 (2001), aff'd, 355 N.C. 270, 559 S.E.2d 547, 2002 N.C. LEXIS 184 (2002).

Demonstration of Effects of Pepper Spray. —

Trial court properly allowed the State, during its presentation of rebuttal evidence, to demonstrate the effects of pepper spray in an experiment under circumstances dissimilar to those that actually occurred and with the use of law enforcement officers trained in the use of pepper spray; defendant was given, but chose not to take, the opportunity to present his own demonstration on lay witnesses. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168, 2000 N.C. LEXIS 618 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2353 (2001), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2354 (2001), writ denied, 358 N.C. 157, 593 S.E.2d 84, 2004 N.C. LEXIS 158 (2004), cert. dismissed, 370 N.C. 375, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. dismissed, 375 N.C. 500, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (2020).

Testimony of Coast Guard officer as to ocean currents was relevant to show a connection between defendant and the crime where an inference could be drawn therefrom that a body had drifted from an area with which defendant was familiar. State v. Dial, 122 N.C. App. 298, 470 S.E.2d 84, 1996 N.C. App. LEXIS 379, cert. denied, 343 N.C. 754, 473 S.E.2d 620, 1996 N.C. LEXIS 430 (1996).

Cross-Examination Held Proper. —

Where State did not cross-examine defendant in murder case about an unrelated rape accusation to show defendant was unworthy of belief because of this alleged bad act, but for purpose of establishing defendant’s motive for crime for which he was on trial, cross-examination was proper. State v. Meekins, 326 N.C. 689, 392 S.E.2d 346, 1990 N.C. LEXIS 294 (1990).

Photographs of Crime Scene and Victim’s Clothes. —

Photographs of the crime scene and victim’s bloody clothes were admissible since they were only used so that the witnesses could explain and illustrate their testimony and the trial court instructed the jury as to their limited purpose; further, the photographs were not unnecessarily gory. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596, 2001 N.C. LEXIS 942 (2001).

Autopsy photographs, photographs of the victim’s car after she was shot, testimony regarding the amount of blood at the scene, and blood stained material were all properly admitted at defendant’s murder trial in accordance with G.S. 8C-1, N.C. R. Evid. 401, 402, and were not overly prejudicial in violation of G.S. 8C-1, N.C. R. Evid. 403. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794, 2005 N.C. LEXIS 361 (2005).

Evidence of Defendant’s Character. —

Trial court did not err by admitting a forensic psychologist’s report and testimony because the probative value of the report and testimony substantially outweighed the potential prejudicial effect to defendant; the psychologist’s reflections of defendant’s character, which comprised a small portion of the report, were not admitted for the truth of the matters asserted but were offered to demonstrate how the resulting recommendations were relevant to defendant’s state of mind; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Evidence of Threat in Abuse Case. —

Finding of fact by the North Carolina Department of Health and Human Services, Division of Facility Services, stating that the nurse aide had told an elderly nursing home patient that, if the patient kicked the nurse aide again, then the nurse aide would “knock the f—king hell out of” the patient, was relevant to the determination of whether the nurse aide abused the patient within the meaning of 42 C.F.R. § 488.301 and the nurse aide failed to show prejudice. Allen v. N.C. HHS, 155 N.C. App. 77, 573 S.E.2d 565, 2002 N.C. App. LEXIS 1634 (2002).

Evidence of Prior Assaults on Same Victim. —

In defendant’s trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant’s girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant’s claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443, 2003 N.C. App. LEXIS 743 (2003).

Evidence of Similar Crime Was Relevant. —

Evidence presented at a suppression hearing was sufficient to link defendant to a later break-in, including DNA evidence collected at the scene of the second break-in. The crimes were substantially similar in that a window at a convenience store in Charlotte was broken, cigarettes were taken, the crimes occurred a short time apart and at the same time of day, and defendant’s blood was found at both scenes; they were therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). Also, the evidence was relevant on the issue of whether defendant committed the charged crime, pursuant to G.S. 8C-1, N.C. R. Evid. 401. State v. Matthews, 218 N.C. App. 277, 720 S.E.2d 829, 2012 N.C. App. LEXIS 54 (2012).

Trial court did not err by admitting evidence at defendant’s trial for arson that defendant had four years earlier committed arson because the evidence was probative of defendant’s intent and was sufficiently similar, logically relevant, and not too remote in time. Both the arson for which defendant was tried and the prior arson were set during the nighttime on the exterior of a building at an entrance when defendant was intoxicated, knew the buildings to be occupied, and was angry about a perceived harm against defendant by the occupant. State v. Wilson-Angeles, 251 N.C. App. 886, 795 S.E.2d 657, 2017 N.C. App. LEXIS 55 (2017).

Trial court did not err in admitting evidence about a prior, violent incident in order to prove defendant’s identity because there were common elements of the prior incident with the incidents defendant was being charged with, including that the perpetrator wore a white hockey mask similar to the one seized from defendant, the targets were all suspected drug dealers or living with suspected drug dealers, the attacks all took place at night at the victims’ homes, defendant had an accomplice, and the incidents took place within a month or two of each other and within the same city. State v. Thomas, 268 N.C. App. 121, 834 S.E.2d 654, 2019 N.C. App. LEXIS 846 (2019).

Evidence Detailing Conduct as Basis of Plaintiffs’ Claims. —

Although memorandum orders containing the conclusions of the Virginia State Bar proceedings might have been irrelevant and immaterial in the present case because the standards in ethical proceedings differed from those in legal proceedings, the attorney’s testimony in the State Bar proceedings was relevant and material because it detailed the conduct that forms the basis of plaintiffs’ claims. Brissett v. First Mt. Vernon Indus. Loan Ass'n, 233 N.C. App. 241, 756 S.E.2d 798, 2014 N.C. App. LEXIS 308 (2014).

Relevancy Not Renewable Under Abuse of Discretion Standard. —

A trial court’s ruling on whether evidence is relevant is technically not discretionary and therefore is not reviewed under the abuse of discretion standard. Sherrod v. Nash Gen. Hosp., 126 N.C. App. 755, 487 S.E.2d 151, 1997 N.C. App. LEXIS 629 (1997), aff'd in part, rev'd, 348 N.C. 526, 500 S.E.2d 708, 1998 N.C. LEXIS 328 (1998).

Evidence Improperly Excluded. —

In a murder trial, where guilt was based on circumstantial evidence, the trial court committed reversible error in refusing to admit into evidence defendant’s proposed exhibit, a drawing found by law enforcement officers among the victim’s personal effects, which included a rough map of the area surrounding defendant’s North Carolina home and numerous written notations indicating a possible larceny scheme. The exhibit was clearly relevant to a crucial issue in the case, namely, whether this defendant, and not some other person, was in fact the perpetrator of the crime, and it therefore should have been admitted into evidence at trial. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442, 1988 N.C. LEXIS 122 (1988).

Trial court erred by its exclusion of evidence, during the trial on the issue of damages, regarding whether a businessman was financially ready, willing, and able to exercise a stock purchase option and restriction agreement during the period specified in the option contract, because the evidence was relevant to the issue of damages; for if, the businessman was not ready, willing, and able to exercise his rights under the option, he would be entitled to no more than nominal damages for its breach. Lee v. Scarborough, 162 N.C. App. 674, 592 S.E.2d 43, 2004 N.C. App. LEXIS 259, op. withdrawn, sub. op., 164 N.C. App. 357, 595 S.E.2d 729, 2004 N.C. App. LEXIS 812 (2004).

While a corporation and its principal were properly held liable for breaching an option agreement with a consultant, it was error to exclude evidence as to whether the consultant ever intended to exercise the option; the corporation and the principal were entitled to a new trial so that a jury could determine whether the consultant was ready, willing, and able to exercise the option and, if not, the consultant was entitled to only nominal damages. Lee v. Scarborough, 164 N.C. App. 357, 595 S.E.2d 729, 2004 N.C. App. LEXIS 812 (2004).

Even though the trial court erred by refusing to allow defense counsel to cross-examine a victim about statements he allegedly made to his wife and the police that he was addicted to porn, had an affair, and that he could not control his behavior because of defendant’s abuse of him, because the evidence was relevant and was not barred by the Rape Shield Act, defendant was not prejudiced because the evidence of defendant’s guilt was overwhelming. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45, 2015 N.C. App. LEXIS 1037 (2015).

Exclusion of relevant impeachment evidence that a victim’s mother had accused defendant of domestic violence was harmless because, on the entire record, it was not reasonably possible the evidence would have changed the jury’s verdict. State v. Martinez, 253 N.C. App. 574, 801 S.E.2d 356, 2017 N.C. App. LEXIS 384 (2017).

Evidence of “Look” Held Relevant. —

Witness’s testimony that the look on defendant juvenile’s face was defiant related to the witness’s perception of the juvenile shortly after the incident, and because the witness’s testimony stemmed from the witness’s personal experience combined with the witness’s observation of the defendant, it was admissible to shed light on the circumstances surrounding the incident, and thus was relevant and admissible. In re M.J.G., 234 N.C. App. 350, 759 S.E.2d 361, 2014 N.C. App. LEXIS 611 (2014).

Evidence Held Relevant. —

In a murder trial involving a 60 year old victim who was beaten and kicked about the head in June, 1983 and died in December, 1983 of complications resulting from injury to the brain received in the incident, admission of evidence regarding victim’s physical appearance at the scene and in the hospital was relevant under this rule on the issue of excessive force, was not prejudicial under G.S. 8C-1, Rule 403, and was not inflammatory under the old rules. State v. Moxley, 78 N.C. App. 551, 338 S.E.2d 122, 1985 N.C. App. LEXIS 4322 (1985).

Challenged testimony which addressed the substance of a New York lawsuit from which the action at issue, an action for attorneys’ fees, arose provided needed background information pertaining to the dispute at issue, was not prejudicial, and was properly admitted. Santora, McKay & Ranieri v. Franklin, 79 N.C. App. 585, 339 S.E.2d 799, 1986 N.C. App. LEXIS 2102 (1986).

Although motive was not an element of any of the crimes for which the defendant was convicted (murder, arson, and assault with a deadly weapon inflicting serious injury), his motives and state of mind at the time of the fire certainly were facts “of consequence to the determination of the action . . .”, and the trial court did not err by admitting evidence thereof. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55, 1986 N.C. LEXIS 1918 (1986).

In prosecution for first degree rape and intercourse by a substitute parent, the trial court did not commit prejudicial error in admitting into evidence, over objection, a letter which the defendant wrote to the victim’s mother, in which defendant promised not to “bother” victim again, despite defendant’s contention that what he had meant was that he would not discipline the victim anymore. State v. Moses, 316 N.C. 356, 341 S.E.2d 551, 1986 N.C. LEXIS 2059 (1986).

The alcohol level of defendant’s blood approximately one hour after the accident is relevant to the issue of defendant’s intoxication. State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553, 1986 N.C. App. LEXIS 2196 (1986).

In prosecution for rape and other offenses, where the State produced evidence that one of the defendants had threatened victim with a knife when they abducted her and that one of the three assailants had told her that he would be back for her and that she would be shot if she reported the crimes, trial court did not err in admitting knives and razor found in defendants’ car five nights later when defendants came to victim’s apartment around 1:00 a.m., beat on the door and attempted to open it, before leaving when a neighbor stepped outside his apartment, as by entering pleas of not guilty and denying that they were the assailants, defendants made identity an issue in the case, and this evidence clearly bore on the issue of identity. State v. Gilliam, 317 N.C. 293, 344 S.E.2d 783, 1986 N.C. LEXIS 2788 (1986).

Watch and ring taken from victim of rape and kidnapping were “relevant” in defendant’s trial for those offenses, because they tended to make the existence of a fact of consequence — defendant’s connection to the offenses with which he was charged — more probable than it would be without the evidence, and their admission was not unduly prejudicial. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885, 1986 N.C. LEXIS 2431 (1986).

State’s exhibits, which included $5,900 in United States currency, rolling papers and pipe, electric digital scales, a triple beam balance scale, a water bong, a plastic bag containing white powder, an airline bag in which the white powder was found and a briefcase with documents, with the exception of the briefcase, were relevant to the crime of trafficking in cocaine, in that they intended to show that defendant knowingly possessed cocaine and was trafficking in it, and the briefcase, which was in defendant’s possession at the time of arrest, tended to explain or illustrate the circumstances surrounding his arrest. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227, 1986 N.C. App. LEXIS 2455 (1986).

Because defendant’s statement that he had “unfinished business” in the area to take care of upon his release from prison had some probative value on the issue of defendant’s intent to kill the victim, the evidence was relevant and properly admitted. State v. Prevette, 317 N.C. 148, 345 S.E.2d 159, 1986 N.C. LEXIS 2784 (1986).

Evidence merely disclosing subsequent pregnancy of the rape victim was admissible as tending to prove penetration, an essential element of the crime of forcible rape; moreover, victim’s simple statement that she had an abortion served the purpose of corroborating both the fact of penetration and the fact of her pregnancy, and the mere fact that an abortion took place was not so inflammatory as to render it inadmissible. State v. Stanton, 319 N.C. 180, 353 S.E.2d 385, 1987 N.C. LEXIS 1892 (1987).

In a first degree sexual offense case, evidence that defendant attempted a remarkably odd and strikingly similar modus operandi some 10 weeks after his attack on victim was relevant and admissible as tending to prove the defendant’s modus operandi, motive, intent, preparation and plan. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

Videotape and magazines and detective’s testimony concerning them were relevant to corroborate child victim’s testimony that defendant had shown him such materials at the time defendant committed the crimes for which he was on trial, and since the exhibits and testimony were relevant to a fact or issue other than the character of the accused, G.S. 8C-1, Rule 404(b) did not require that they be excluded from the evidence at trial. State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988).

In prosecution for second-degree murder, evidence concerning defendant’s sale of marijuana to the victim was relevant in showing the relationship between the victim and defendant, and given the evidence defendant once questioned the witness about whether the victim was a “nark,” the evidence that defendant sold marijuana was admissible since it had some probative value concerning defendant’s possible motive in the shooting. However, the testimony that the defendant was in the business of selling marijuana to high school age persons had no tendency to make any fact of consequence more or less probable, nor was the evidence about how defendant procured his automobile and the evidence concerning the details of how the marijuana was packaged and sold relevant to any material fact in issue. Equally irrelevant was evidence concerning the victim’s citation for possession of marijuana. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, 1988 N.C. App. LEXIS 722 (1988).

In a rape case hair comparison testimony was clearly relevant on the issue of whether the victim was sexually assaulted even though the evidence of hair comparison analysis was not used to establish the identity of perpetrator, since a hair belonging to someone other than the victim was found in her pubic area tended to show that the person from whom the hair came could have engaged in sexual contact with the victim. State v. McNicholas, 322 N.C. 548, 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

Testimony by a rape victim that the defendant was on “house arrest” at the time of the rape was part of the chain of circumstances and relevant to the victim’s account of the crime, where the victim further explained that she ran to the corner after the attack because she knew that the defendant could not follow her as he was wearing a control device on his ankle. State v. Monk, 132 N.C. App. 248, 511 S.E.2d 332, 1999 N.C. App. LEXIS 118 (1999).

In a first-degree murder case evidence that insulation particles in defendant’s clothing had apparently come from the attic used to gain access to the victim’s apartment did not prove that he killed her, but was relevant to the State’s case since evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue, and certainly a fact of consequence was the presence of fiber on the defendant’s clothing consistent with that found in the victim’s apartment. State v. Crandell, 322 N.C. 487, 369 S.E.2d 579, 1988 N.C. LEXIS 471 (1988).

Evidence that approximately two weeks before he killed victim the defendant threatened to kill him, or to kill a group of which he was a member, was relevant and admissible as evidence tending to show premeditation and deliberation and to negate self-defense. State v. Groves, 324 N.C. 360, 378 S.E.2d 763, 1989 N.C. LEXIS 250 (1989).

Evidence that shortly after his arrest defendant gave as his address 6619 Somersworth Drive, Charlotte, was relevant since evidence tended to show that defendant lived at the house at the time of the search and his arrest. State v. Marshall, 94 N.C. App. 20, 380 S.E.2d 360, 1989 N.C. App. LEXIS 445 (1989).

In a negligence action where defendant employee parked garbage truck on the shoulder of the road facing oncoming traffic and van collided with the truck, evidence of the alternative method for collecting customer’s garbage prior to the accident as well as testimony revealing defendant employee’s rationale for stopping as he did was relevant not only to the issue of whether defendant employer and defendant employee violated G.S. 20-161(a) and (b) but also to the issue of defendant employee’s alleged negligent conduct. Smith v. Pass, 95 N.C. App. 243, 382 S.E.2d 781, 1989 N.C. App. LEXIS 769 (1989).

In trial for charges of trafficking in marijuana, trial court did not err in overruling defendant’s objection to the State’s evidence which tended to show defendant’s driving activities around the Virginia Beach area, the type of boat which was present several months earlier in a campground in which defendant was living and which was later present outside a beach cottage, and the accessibility of the beach cottage to a nearby inlet; the evidence was relevant to show defendant was arrested while she was on a trip which followed the same general route as trips which she had previously taken, the accessibility of the beach cottage to the inlet partially explained why surveillance of the beach cottage was instituted and the evidence about the boat being at the campground showed that the boat had some connection to the person who paid the cottage’s electric bill. State v. Drewyore, 95 N.C. App. 283, 382 S.E.2d 825, 1989 N.C. App. LEXIS 764 (1989).

Evidence of footprints or shoe prints at the scene of the crime corresponding to those of the accused is admissible as relevant circumstantial evidence tending to connect an accused with the crime. State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911, 1989 N.C. LEXIS 479 (1989).

In trial for robbery with a dangerous weapon, evidence of victim’s scholastic achievements presented by the assistant district attorney during preliminary questioning was relevant; it was offered as a means of introducing the victim to the court and jury and to assist in explaining the victim’s background, and considering the fact that defendant later portrayed victim as the aggressor, the challenged testimony was not prejudicial. State v. Summerlin, 98 N.C. App. 167, 390 S.E.2d 358, 1990 N.C. App. LEXIS 375 (1990).

A witness’ statement that his wife heard a rape victim say “Are you going to shoot me, too?” was relevant for the limited purpose of explaining why the witness called the sheriff a second time after he heard a commotion outside his house, and the statement was not inadmissible hearsay. State v. Roper, 328 N.C. 337, 402 S.E.2d 600, 1991 N.C. LEXIS 251, cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232, 1991 U.S. LEXIS 5029 (1991).

Testimony by a captain of a county sheriff’s department that, to his knowledge, wife of murder victim was beneficiary of the victim’s life insurance policy did not point directly to the guilt of another; at most, it cast suspicion upon another or raised a mere conjectural inference that the crime may have been committed by another. Therefore, it did not meet the relevancy test of this rule. State v. Eason, 328 N.C. 409, 402 S.E.2d 809, 1991 N.C. LEXIS 246 (1991).

Testimony that the defendant was calm and was not crying which described her emotional state shortly after her husband was killed, based upon the witnesses’ observations of her demeanor at that time, and evidence that the defendant disposed of her husband’s personal effects the day after his funeral, amounted to evidence tending to shed light upon the circumstances surrounding husband’s killing and, thus, were relevant and admissible. State v. Stager, 329 N.C. 278, 406 S.E.2d 876, 1991 N.C. LEXIS 522 (1991).

Photographs which showed numerous gunshot wounds were relevant to show not only the cause of death, but were also relevant as a means of proving the premeditation and deliberation elements of first-degree murder. State v. Brown, 335 N.C. 477, 439 S.E.2d 589, 1994 N.C. LEXIS 9 (1994).

Where defense counsel attacked the professionalism of the conduct of the law enforcement officers who investigated the case, the evidence that defendant was read his Miranda rights according to law and that he indicated his understanding of them tended to refute the characterization of the officers’ conduct as unprofessional and was therefore relevant. State v. Carter, 335 N.C. 422, 440 S.E.2d 268, 1994 N.C. LEXIS 14 (1994).

Evidence which tended to show that the defendant did not support his children and did not send them gifts following his wife’s death tended to shed light upon the circumstances surrounding the shooting and tended to rebut the defendant’s characterization of his relationship with his wife and children as a caring, supportive one and was thus relevant and admissible. State v. Collins, 335 N.C. 729, 440 S.E.2d 559, 1994 N.C. LEXIS 107 (1994).

Evidence that the defendant had escaped from jail was relevant and probative in that it tended to show the defendant’s consciousness of his guilt. Furthermore, the threats made by defendant during the course of his escape were relevant to show the strength of his desire to escape. State v. McDougald, 336 N.C. 451, 444 S.E.2d 211, 1994 N.C. LEXIS 290 (1994).

Evidence regarding the issuance of a warrant for defendant’s arrest for beating murder victim in the hour immediately preceding the murder tended to shed light on defendant’s emotional state at or around the time of the killing and the circumstances surrounding that killing; thus, it was relevant and admissible. The testimony established intent and motive of returning to continue the assault and tended to prove premeditation, deliberation, and malice. State v. Fisher, 336 N.C. 684, 445 S.E.2d 866, 1994 N.C. LEXIS 409 (1994), cert. denied, 513 U.S. 1098, 115 S. Ct. 768, 130 L. Ed. 2d 665, 1995 U.S. LEXIS 396 (1995).

Condensed videotape which included footage of a body being turned over, placed in a body bag and on a stretcher, then transported to elevator for removal was relevant to illustrate the crime scene prior to the arrival of medical personnel and was neither excessive nor cumulative evidence. State v. Leazer, 337 N.C. 454, 446 S.E.2d 54, 1994 N.C. LEXIS 429 (1994).

The evidentiary fact that defendant was armed and hesitant to submit to arrest was not inconsequential and was relevant to the determination of his guilt in the murder. State v. Mason, 337 N.C. 165, 446 S.E.2d 58, 1994 N.C. LEXIS 394 (1994).

Where the state’s theory of case was that defendant had moved to county to act as the leader of a drug ring, and as such had ordered a “hit” on the victim, evidence demonstrating that defendant may have had alternative motivations in moving to the county was relevant. The testimony may have had the tendency to make the State’s theory less plausible than it would have been without the testimony. State v. Wilson, 338 N.C. 244, 449 S.E.2d 391, 1994 N.C. LEXIS 649 (1994).

Testimony of police officers, which stemmed from their personal experience combined with their observation of defendant, was helpful to a clear understanding of a relevant issue — defendant’s demeanor shortly after the crime — was admissible under Rule 701 and relevant under this rule. State v. Lambert, 341 N.C. 36, 460 S.E.2d 123, 1995 N.C. LEXIS 401 (1995).

Bloody clothing of a victim that is corroborative of the state’s case, is illustrative of the testimony of a witness, or throws any light on the circumstances of the crime is relevant and admissible evidence at trial. State v. Knight, 340 N.C. 531, 459 S.E.2d 481, 1995 N.C. LEXIS 378 (1995).

Plaintiff’s possession of a Taurus .357 pistol was relevant where the victim died from gunshot wounds, a spent .38/.357 bullet was found in close proximity to the victim’s body, and this bullet had markings consistent with those of a Taurus pistol. State v. Soles, 119 N.C. App. 375, 459 S.E.2d 4, 1995 N.C. App. LEXIS 524 (1995).

Photographs received with limiting instructions that they were being admitted for the purpose of illustrating and explaining the testimony of victim’s mother and were not to be considered for any other purpose were appropriately admitted. State v. Alston, 341 N.C. 198, 461 S.E.2d 687, 1995 N.C. LEXIS 406 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100, 1996 U.S. LEXIS 1442 (1996).

Handgun and bullets introduced as evidence were relevant because they tended to link defendant to the crime where the handgun and bullets found in dumpster were linked to defendant through both his fingerprints and his own testimony, and the bullets found in the dumpster were consistent with the type of bullets recovered from the victim’s body; the evidence was probative on the question of defendant’s guilt. State v. Burke, 342 N.C. 113, 463 S.E.2d 212, 1995 N.C. LEXIS 540 (1995).

Admission of consent to search form bearing defendant’s signatures was not prejudicial error; the form was relevant evidence on the issue of defendant’s control of the premises. State v. Shine, 121 N.C. App. 78, 464 S.E.2d 475, 1995 N.C. App. LEXIS 964 (1995).

Evidence of a car chase was properly received as evidence of flight and was sufficient to support the trial court’s instruction on flight. State v. King, 343 N.C. 29, 468 S.E.2d 232, 1996 N.C. LEXIS 153 (1996).

Evidence of flight, i.e. that the defendant did not appear at his first scheduled trial, is a relevant circumstance to be considered by the jury, together with other circumstances, in determining the issue of the defendant’s guilt. State v. Williamson, 122 N.C. App. 229, 468 S.E.2d 840, 1996 N.C. App. LEXIS 246, cert. denied, 344 N.C. 637, 477 S.E.2d 54, 1996 N.C. LEXIS 544 (1996).

Where blood spatter experiments demonstrated that it was probable that defendant was in close proximity to victim at the time the gun was fired, the results cast doubt on the credibility of defendant’s statements to police chief that she did not remember being close to her husband at the time of the shooting and that she did not see the shooting; thus, the trial court properly admitted the results of the experiments. State v. Clifton, 125 N.C. App. 471, 481 S.E.2d 393, 1997 N.C. App. LEXIS 133 (1997).

Evidence that decedent was a police officer was not unfairly prejudicial and was relevant. State v. Larry, 345 N.C. 497, 481 S.E.2d 907, 1997 N.C. LEXIS 39, cert. denied, 522 U.S. 917, 118 S. Ct. 304, 139 L. Ed. 2d 234, 1997 U.S. LEXIS 6088 (1997).

Photographs of male models and men in underwear were properly admitted into evidence in defendant’s trial for taking indecent liberties with a child and crime against nature. State v. Creech, 128 N.C. App. 592, 495 S.E.2d 752, 1998 N.C. App. LEXIS 143 (1998).

Testimony by the wife of an eyewitness to a murder that he was restless and unable to sleep prior to his identification of the defendant but that he slept much better after doing so was admissible in the defendant’s prosecution for second degree murder, where the eyewitness’ credibility was in issue, and the wife’s testimony was relevant to the reliability of his identification. State v. Smith, 130 N.C. App. 71, 502 S.E.2d 390, 1998 N.C. App. LEXIS 843 (1998).

Where witness remembered that defendant had a gun similar to the one used in the two murders at issue because defendant had playfully held it to his head, the trial court properly allowed the prosecution to present evidence of the defendant’s prior misconduct with a handgun. State v. Moses, 350 N.C. 741, 517 S.E.2d 853, 1999 N.C. LEXIS 882 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826, 2000 U.S. LEXIS 693 (2000), writ denied, 356 N.C. 442, 573 S.E.2d 160, 2002 N.C. LEXIS 1214 (2002), writ denied, 357 N.C. 510, 588 S.E.2d 380, 2003 N.C. LEXIS 1188 (2003), writ denied, 360 N.C. 652, 639 S.E.2d 57, 2006 N.C. LEXIS 1199 (2006), cert. denied, 365 N.C. 93, 706 S.E.2d 246, 2011 N.C. LEXIS 121 (2011).

Officer’s testimony that he had training in the investigation of drug offenses, had dealt with occupants of the subject house when investigating drug offenses, and had arrested “folks” that resided in the house for drug offenses was relevant to show motive, i.e., that defendant committed robbery with a dangerous weapon in order to get money to buy drugs. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734, 1999 N.C. App. LEXIS 1378 (1999), cert. dismissed, 367 N.C. 515, 762 S.E.2d 453, 2014 N.C. LEXIS 693 (2014), writ denied, 368 N.C. 598, 780 S.E.2d 556, 2015 N.C. LEXIS 1205 (2015).

Murder defendant’s statement that he would like to see his former girlfriend get the electric chair was admissible in order to show defendant’s bias against her, as he had accused her of participating in the murder. State v. Williams, 355 N.C. 501, 565 S.E.2d 609, 2002 N.C. LEXIS 538 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808, 2003 U.S. LEXIS 128 (2003).

Evidence of defendant’s possession of pornographic materials, without any evidence that defendant had viewed the pornographic materials with the victim, or any evidence that defendant had asked the victim to look at pornographic materials other than the victim’s mere speculation, was not relevant to proving defendant committed the offenses of indecent liberties with a child and first degree sex offense with a female child under the age of 13 and should not have been admitted by the trial court; however, the error was not prejudicial under G.S. 15A-1443. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289, 2002 N.C. App. LEXIS 973 (2002).

Evidence that a defendant used drugs shortly before a fire he was accused of starting was relevant because it was part of the chain of events or circumstances leading to the time of the fire. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41, 2002 N.C. App. LEXIS 1276 (2002), aff'd in part, 357 N.C. 235, 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

Testimony as to the existence of a bullet hole in the wall of the defendant’s house trailer, which an expert testified was made by a bullet that was not found and which exited the defendant’s house trailer and which other parties testified did not exist before the victim’s disappearance, was relevant and admissible in a case in which the defendant was found guilty of voluntary manslaughter in the death of a woman whose recovered skeletal remains showed was beaten to death. State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d 488, 2003 N.C. App. LEXIS 1828 (2003).

Testimony from a police officer that defendant was arrested while driving a vehicle that had been reported stolen was properly admitted and was relevant because it offered an explanation for why defendant was detained and how defendant’s picture came to be included in a photographic lineup after he was stopped driving a vehicle similar to that described by prosecuting witnesses as being driven by an armed robber in an armed robbery two weeks earlier. State v. McCree, 160 N.C. App. 19, 584 S.E.2d 348, 2003 N.C. App. LEXIS 1667 (2003).

Testimony from an inmate that shared a jail cell with one of two defendants accused of robbery, burglary, and kidnapping that one defendant told him that defendants were going to claim that they were forced to commit the crimes was properly admitted because the evidence tended to prove that defendant and his co-defendant concocted a scheme to avoid liability for their criminal actions. State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898, 2004 N.C. App. LEXIS 181 (2004).

Court properly admitted evidence of lessors’ violation of a preliminary injunction and a temporary restraining order to be presented to the jury in a trial for breach of lease agreement and conversion; the evidence was relevant under G.S. 8C-1, N.C. R. Evid. 401 because it supported the lessees’ claims of breach of a lease agreement, conversion, and punitive damages. Zubaidi v. Earl L. Pickett Enters., 164 N.C. App. 107, 595 S.E.2d 190, 2004 N.C. App. LEXIS 716 (2004).

Trial court did not abuse its discretion during defendant’s trial on two counts of first-degree murder by allowing the State to introduce the testimony of nurses who treated defendant while he was in the hospital, even though the testimony duplicated other evidence the State offered. State v. Jones, 358 N.C. 330, 595 S.E.2d 124, 2004 N.C. LEXIS 341, cert. denied, 543 U.S. 1023, 125 S. Ct. 659, 160 L. Ed. 2d 500, 2004 U.S. LEXIS 8022 (2004).

Defendant’s threats to a holding cell officer that he “already killed one” and “I got one up under my belt” could have been interpreted as statements of guilt and used as direct evidence to prove that defendant acknowledged guilt in the death of his victim, as what was “up under his belt” was a human life, that he had already “killed one” was a woman like the officer, and “belt” was meant to imply that defendant had a black belt; accordingly, the statements were relevant in defendant’s felony murder trial. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724, 2004 N.C. LEXIS 669 (2004), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1595 (2005).

In a cardiologist’s action for breach of employment contract, the employer’s testimony about reservations prior to hiring the cardiologist was relevant to rebut the cardiologist’s offered evidence of a high collection rate at a previous hospital and a generally successful cardiology practice; also, testimony that the employer offered to allow the cardiologist to continue employment under certain conditions was relevant to both the issues of the employer’s attempt to mitigate any damages if the jury found a breach, and to the issue of the employer’s good faith and fair dealing in attempting to adhere to the employment contract terms. Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286, 2005 N.C. App. LEXIS 150 (2005).

Testimony regarding conversation between officer and witness regarding a statement by the victim was relevant because it concerned one of the circumstances surrounding the parties, and was necessary to be known, to property understand their conduct or motives. State v. McMillian, 169 N.C. App. 160, 609 S.E.2d 265, 2005 N.C. App. LEXIS 544 (2005).

Trial court did not err by admitting without editing or redacting letters that defendant and his accomplice wrote into evidence, as the letters were relevant under G.S. 8C-1-401 and G.S. 8C-1-402, and the probative value of the letters was not outweighed by prejudice under G.S. 8C-1-403. State v. Curry, 171 N.C. App. 568, 615 S.E.2d 327, 2005 N.C. App. LEXIS 1312 (2005).

No plain error existed in the trial court admitting evidence of defendant’s empty prescription pill bottle, testimony by an officer identifying the pills from the label, and testimony by a pharmacist about the interaction between the pills and alcohol in defendant’s trial for driving while impaired, hit and run, and second degree murder, following an auto accident, as the evidence was relevant to the charges against defendant. State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394, 2005 N.C. App. LEXIS 992 (2005).

Defendant’s statement to officers that he was expected to make a living outside prison showed a motive for the robbery and his statement that he wanted to go back to prison showed a possible motive to commit a crime in order to accomplish that objective; the statements were made by defendant himself shortly after the crime and were distinguishable from other evidence, and as such, the statements were probative of motive and intent, so there was no error in admission of the statements. State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d 500, 2005 N.C. LEXIS 844 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528, 2006 U.S. LEXIS 3148 (2006), cert. denied, 700 S.E.2d 925, 2010 N.C. LEXIS 588 (2010).

Evidence of prison records on defendant’s father were relevant in defendant’s rape trial to eliminate other potential perpetrators of the rape; specifically paternal relative of defendant. State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231, 2006 N.C. App. LEXIS 1923 (2006).

Trial court properly admitted two photographs of defendant’s foster daughters into evidence because they were relevant to the victim’s motives for coming forward with her allegations. State v. Whitman, 179 N.C. App. 657, 635 S.E.2d 906, 2006 N.C. App. LEXIS 2167 (2006).

Admissions of evidence of defendant’s unauthorized use of church credit cards in an action charging defendant with the murder of defendant’s wife was upheld because defendant’s use of the credit cards was linked in time and circumstances with the crime and was relevant to show the financial status of defendant and defendant’s wife before and immediately after the disappearance of defendant’s wife. State v. Pulley, 180 N.C. App. 54, 636 S.E.2d 231, 2006 N.C. App. LEXIS 2242 (2006).

In defendant’s murder trial, the trial court did not err in admitting evidence of defendant’s and defendant’s wife’s finances as well as the wife’s job status as relevant for showing motive, pursuant to G.S. 8C-1-401; at trial, the evidence presented on finances tended to show that the couple had some financial difficulty and defendant stood to inherit a large amount of money upon the wife’s death. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594, 2006 N.C. App. LEXIS 1980 (2006), aff'd, 361 N.C. 587, 652 S.E.2d 216, 2007 N.C. LEXIS 1101 (2007).

Average alcohol elimination rate offered by expert could have aided a finder of fact in determining whether it was more or less likely defendant’s breath alcohol level exceeded the statutory limit for driving while impaired purposes; accordingly, the testimony was relevant. State v. Teate, 180 N.C. App. 601, 638 S.E.2d 29, 2006 N.C. App. LEXIS 2515 (2006).

In a trial in which the State sought to show that defendant pressured her daughter to shoot defendant’s husband so that defendant could be with a boyfriend she met at a swingers party, the admission of sexually suggestive photographs of defendant and the boyfriend was proper under G.S. 8C-1-401, G.S. 8C-1-403, and G.S. 8C-1-404(b) because the photographs corroborated the existence of a sexual relationship between defendant and the boyfriend, the photographs illustrated the chain of events leading up to the murder, and the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516, 2007 N.C. App. LEXIS 687 (2007).

Evidence of a knife and a condom found at a crime scene was properly admitted as it was relevant under G.S. 8C-1-401 since: (1) defendant’s relationship with the victim’s mother was ending badly, and defendant had recently been experiencing sexual tension with the victim and had been asked to leave the home; (2) defendant stated that defendant had initially intended to use the condom when defendant assaulted the victim, and that defendant had left the knife in the master bedroom because defendant intended to kill the mother when the mother got home; (3) the knife further tended to corroborate the state’s evidence that the victim’s bra was cut in the front; and (4) defendant failed to establish prejudice. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Employee of a victim’s identification of a camera was clearly relevant, as the employee stated that the employee was personally familiar with the camera and testified that the employee recognized the camera found in a trailer that defendant claimed was defendant’s as the camera that was taken from the victim’s office. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250, 2007 N.C. App. LEXIS 1733 (2007).

Pastor was properly allowed to identify a camcorder as the one stolen from the pastor’s church, as the identification of the camcorder was relevant and was preceded by a proper foundation. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250, 2007 N.C. App. LEXIS 1733 (2007).

Detective’s statements as to other businesses that had reported break-ins was not inadmissible hearsay as: (1) defendant’s objection was overruled only as to what the detective did, and the evidence offered was both relevant, in that it explained the chain of events in the police investigation, and was not hearsay as it precluded the further admission of statements regarding the reported break-ins; (2) the statements were offered to explain the chain of events and were not offered for the truth of the matter asserted; and (3) the probative value of the statements was not substantially outweighed by their prejudicial effect as the detective’s testimony did not directly accuse defendant of other crimes, and was not offered to prove defendant’s conformity with character to commit wrongs, but was offered to explain the sequence of events. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250, 2007 N.C. App. LEXIS 1733 (2007).

Statements referring to an officer’s testimony given during trial and introduced to challenge the credibility of defendant’s testimony were relevant and thus, admissible. State v. Parker, 187 N.C. App. 131, 653 S.E.2d 6, 2007 N.C. App. LEXIS 2239 (2007).

Testimony of a trooper and a witness regarding an employee’s actions in fleeing the scene of a motor vehicle accident was relevant to show the employee’s motivation for leaving the scene as the evidence related to the possibility that the employee was acting as an agent for the employee’s employer. Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553, 2008 N.C. App. LEXIS 1623 (2008).

Evidence of the victims’ state of mind, including the victim’s fear that defendant would abuse the victim’s younger sister, kill the victim, and kill the victim’s family, and evidence concerning the treatment plan developed for the victim were all relevant to whether the victim had been sexually abused by defendant. State v. Davis, 191 N.C. App. 535, 664 S.E.2d 21, 2008 N.C. App. LEXIS 1508 (2008).

Evidence of defendant’s extra-marital affair was admissible because the evidence was relevant and helped explain why the child victim waited to come forward and report a sexual assault by defendant. State v. Tadeja, 191 N.C. App. 439, 664 S.E.2d 402, 2008 N.C. App. LEXIS 1503 (2008).

As the trial court’s preclusion of evidence regarding defendant’s peaceful and law-abiding character prevented defendant from offering evidence of two character traits which were both relevant and admissible as to his self-defense claim, and defendant demonstrated a reasonable possibility that, had the trial court not committed the error, the result at trial would have been different; thus, the defendant was prejudiced by the error. State v. Banks, 191 N.C. App. 743, 664 S.E.2d 355, 2008 N.C. App. LEXIS 1484 (2008).

Testimony about prior acts against defendant committed against the victim was admissible, where the testimony was relevant because it made it more probable than not that defendant committed the charged crimes against the victim given defendant’s belief that the victim was cheating on defendant again. State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317, 2008 N.C. App. LEXIS 1815 (2008).

Testimony that the victim of an arson refused to agree to allow defendant to store stolen goods in her home was relevant under G.S. 8C-1, N.C. R. Evid. 401 to show defendant’s motive to burn the premises. G.S. 8C-1, N.C. R. Evid. 404(b) did not require exclusion of the victim’s testimony as evidence that was probative only of defendant’s propensity to commit crimes. State v. Chappelle, 193 N.C. App. 313, 667 S.E.2d 327, 2008 N.C. App. LEXIS 1809 (2008).

Testimony by defendant’s sister and the sister’s boyfriend that they were feared defendant was relevant because the fear was a product of their belief in defendant’s guilt and explained by the sister did not contact law enforcement directly or more immediately after a codefendant confessed; as such, the testimony had some tendency as circumstantial evidence to make the existence of defendant’s guilt more probable. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618, 2009 N.C. LEXIS 239 (2009).

Letter from defendant to defendant’s mother was properly admitted, because it constituted defendant’s admission to the crime in defendant’s own words, reflecting a calculated murder for money and goods without any provocation, and had some tendency to make the fact of defendant’s real deliberation of the murder more probable, and thus, it was relevant. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618, 2009 N.C. LEXIS 239 (2009).

Trial court did not err by admitting into evidence a DVD recording of defendant’s police interview without redacting those questions posed to him by the detectives, which contained statements attributed to non-testifying third parties. The questions were relevant under G.S. 8C-1, N.C. R. Evid. 401 as their content made facts of consequence to the case more probable or less probable than they would be otherwise and also gave context to defendant’s responses. State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546, 2009 N.C. App. LEXIS 805 (2009).

Evidence of the reason for a son’s discontinued employment was relevant to the extent of opportunities usurped from a partnership and the resulting lost profits in an unfair trade practices suit; therefore, the evidence bore substantial probative value and minimal risk of confusing the issues, misleading the jury, or unfairly prejudicing the son and the father. Accordingly, the trial court did not abuse its discretion in allowing the partners’ counsel to ask questions concerning an alleged theft. White v. Thompson, 196 N.C. App. 568, 676 S.E.2d 104, 2009 N.C. App. LEXIS 530 (2009), aff'd, 364 N.C. 47, 691 S.E.2d 676, 2010 N.C. LEXIS 349 (2010).

Admission of statements defendant made after defendant’s arrest was proper, because they showed defendant’s intent and the absence of mistake or accident in the commission of the offenses. State v. Madures, 197 N.C. App. 682, 678 S.E.2d 361, 2009 N.C. App. LEXIS 1077 (2009).

Trial court did not err when it admitted the shaken baby syndrome demonstration because the shaken baby syndrome demonstration was relevant under G.S. 8C-1, N.C. R. Evid. 401 since defendant was charged with felonious child abuse inflicting serious injury and first-degree murder. Defendant’s intent to physically harm the child was a key element to the jury’s determination of the case. G.S. 14-17, G.S. 14-318.4(a3). The severity of the child’s injuries and how the injuries were inflicted made it more probable defendant intended to harm the child, and a demonstration for the jury of how those injuries were inflicted was relevant to defendant’s intent to harm the child; moreover, the State established the relevancy of that demonstration with a proper foundation from an expert in forensic pathology and a doctor. State v. Anderson, 200 N.C. App. 216, 684 S.E.2d 450, 2009 N.C. App. LEXIS 1611 (2009).

Trial court did not commit plain error by allowing an employee of child protective services, to testify that the victim’s mother had been a victim of sexual abuse as a child because the information that the mother had been a sexual abuse victim was relevant to the question of why she hesitated to contact authorities in the face of information from the victims that defendant was sexually molesting them; the employee’s statement concerning the possible emotions that the mother felt as a child victim of sexual abuse was relevant to explain why she delayed notifying authorities of the victims’ claims of sexual abuse and to rebut defendant’s assertion that the victims were lying because their mother did not immediately report the abuse. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145, 2010 N.C. App. LEXIS 640 (2010), cert. dismissed, 372 N.C. 708, 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Trial court did not commit plain error by admitting evidence that defendant had struck victims’ mother in their presence because the evidence was relevant to show why the victims were afraid to report defendant’s sexual abuse and to refute defendant’s assertion that the mother was pushing the victims to make the allegations to get defendant arrested and out of the house; under the plain error standard, G.S. 15A-1443(a), defendant failed to show a reasonable possibility that had the error not been committed, a different result would have been reached at the trial because the State presented overwhelming evidence against him. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145, 2010 N.C. App. LEXIS 640 (2010), cert. dismissed, 372 N.C. 708, 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Testimony of an earlier robbery victim was relevant to an armed robbery claim against defendant because it made the existence of several material facts more probable or less probable than they would have been without the evidence; facts that a truck had been used by two people in the commission of a robbery with a deadly weapon at an ATM earlier that evening was relevant to the jury’s determination of whether defendant, who was found driving the truck, was involved in a later ATM robbery scheme. State v. Hill, 210 N.C. App. 170, 706 S.E.2d 799, 2011 N.C. App. LEXIS 305, aff'd, 365 N.C. 273, 715 S.E.2d 841, 2011 N.C. LEXIS 814 (2011).

Admission of a detective’s testimony that defendant was lying was proper, as it as relevant, in that it provided the context surrounding defendant’s inculpatory responses, and the admission of such testimony was not unduly prejudicial. State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 290, 2011 N.C. App. LEXIS 1737 (2011).

Evidence that defendant had previously burglarized the victim’s apartment was relevant to prove defendant’s identity as the perpetrator, his motive, and the existence of a common plan or scheme. State v. Adams, 220 N.C. App. 319, 727 S.E.2d 577, 2012 N.C. App. LEXIS 580 (2012).

In defendant’s trial on a charge of embezzlement, evidence related to certain charge cards and insurance payments was relevant and properly admitted because the evidence showed that defendant “willfully misapplied” her employer’s funds by paying the charge card bills which defendant knew were incurred without the employer’s authorization on accounts she was instructed to close and “willfully misapplied” her employer’s funds by paying the insurance bills without making a corresponding deduction from her paycheck. State v. Renkosiak, 226 N.C. App. 377, 740 S.E.2d 920, 2013 N.C. App. LEXIS 351 (2013).

Detective’s testimony about his interrogation techniques was relevant to defendant’s credibility since the detective’s interrogation strategy was designed to encourage a defendant to provide any explanation for a killing that he had, and defendant, despite that encouragement, stuck to his guns. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74, 2013 N.C. App. LEXIS 670 (2013).

Detective’s opinion, expressed in his comments during the interrogation that defendant was lying, did not invade the jury’s province to determine credibility and was relevant since defendant acknowledged at trial that the detective was correct when he accused defendant of lying in the interrogation. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74, 2013 N.C. App. LEXIS 670 (2013).

Detective’s interrogation statements were relevant to defendant’s credibility where defendant steadfastly denied any involvement in the killing during his interrogation, but, at trial, admitted killing the victim and consciously and purposefully lying during the interrogation; the fact that defendant was willing to repeatedly lie, in spite of the detective’s pressuring interrogation techniques was highly probative of defendant’s credibility. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74, 2013 N.C. App. LEXIS 670 (2013).

Epsom salt taken from defendant along with a police officer’s testimony regarding his observations and belief that it could be crack cocaine and as a result field tested the substance, was relevant in that it had a tendency to make the existence of the fact that defendant sold and delivered a counterfeit controlled substance or possessed a counterfeit controlled substance with the intent to sell or deliver more probable than it would be without the evidence. State v. Hanif, 228 N.C. App. 207, 743 S.E.2d 690, 2013 N.C. App. LEXIS 723 (2013).

Testimony from officers concerning their search for weapons and recovery of firearms, ammunition, and instructions for claymore mines from defendant’s property was properly admitted, as it was relevant to show defendant’s advanced planning and state of mind. State v. Stewart, 231 N.C. App. 134, 750 S.E.2d 875, 2013 N.C. App. LEXIS 1234 (2013), writ denied, 371 N.C. 458, 814 S.E.2d 109, 2018 N.C. LEXIS 477 (2018), writ denied, 374 N.C. 268, 838 S.E.2d 463, 2020 N.C. LEXIS 214 (2020).

Because the photographs of defendant’s tattoo taken after his arrest were relevant to proving his identity as the perpetrator, the photographs were relevant and admissible. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478, 2014 N.C. App. LEXIS 238 (2014).

Expert testimony of forensic pathologists was admissible because: (1) the testimony was sufficiently reliable to let a jury find weight; (2) the witnesses were qualified, as one had done 6,700 to 6,800 forensic autopsies and both were cross-examined; and (3) the testimony on cause of death was relevant. State v. Borders, 236 N.C. App. 149, 762 S.E.2d 490, 2014 N.C. App. LEXIS 975 (2014).

Trial court erred in refusing to allow defense counsel to cross-examine a witness, defendant’s sister, with a message the witness left on another sister’s answering machine to attack the witnesses credibility because the message was relevant to attack the witness’s credibility and show her bias towards defendant and defendant’s family. State v. Triplett, 236 N.C. App. 192, 762 S.E.2d 632, 2014 N.C. App. LEXIS 956 (2014), rev'd, 368 N.C. 172, 775 S.E.2d 805, 2015 N.C. LEXIS 682 (2015).

Testimony of a daycare worker regarding statements by defendant’s daughter was relevant, as it clearly related to the identity of the victim’s assailant and was probative that the child observed the assailant, who cared for the child someway, leaving the child unharmed after the assault on the victim, the child’s mother. State v. Young, 233 N.C. App. 207, 756 S.E.2d 768, 2014 N.C. App. LEXIS 306 (2014), rev'd, 368 N.C. 188, 775 S.E.2d 291, 2015 N.C. LEXIS 687 (2015).

Trial court did not err by admitting evidence of four firearms found in the car when defendant was arrested following a traffic stop in South Carolina because it was relevant to show the context of defendant’s flight after the murder. State v. Broussard, 239 N.C. App. 382, 768 S.E.2d 367, 2015 N.C. App. LEXIS 81 (2015).

Statements defendant made to others prior to shooting indicating that he intended to shoot someone in order to retrieve the keys to his grandmother’s car were relevant to the charge of first-degree murder under the theory of premeditation and deliberation to illustrate his state of mind near the time of the shooting. State v. Mitchell, 240 N.C. App. 246, 770 S.E.2d 740, 2015 N.C. App. LEXIS 274 (2015).

Trial court properly determined that, while barely so, the evidence in question was relevant, and then weighed its probative value against prejudice concerns; because the trial court conducted that analysis, it necessarily found the voice mail relevant, and otherwise, the trial court would have excluded the evidence, making a prejudice analysis unnecessary or at least, mere surplusage. State v. Triplett, 368 N.C. 172, 775 S.E.2d 805, 2015 N.C. LEXIS 682 (2015).

Defendant’s failure to respond and to attend or reschedule the examination raised a reasonable inference as to her awareness that her claims were fraudulent; because this evidence was relevant to an essential element of an offense of obtaining property by false pretenses, its admission did not violate the rule. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

Trial court did not err, in defendant’s trial for cyber-bullying, by admitting defendant’s statements about Christianity because the comments were relevant to show defendant’s intent to intimidate or torment the victim and were also relevant to show the chain of events leading up to the victim’s parent contacting law enforcement. The trial court weighed the probative value of this evidence against any prejudicial effect and properly ruled it was admissible. State v. Bishop, 241 N.C. App. 545, 774 S.E.2d 337, 2015 N.C. App. LEXIS 522 (2015), cert. dismissed, 775 S.E.2d 834, 2015 N.C. LEXIS 729 (2015), rev'd, 368 N.C. 869, 787 S.E.2d 814, 2016 N.C. LEXIS 440 (2016).

Testimony by a doctor, who performed a physical examination of an alleged sexual abuse victim almost a full week after the last possible occurrence of sexual abuse alleged in defendant’s indictment, was relevant not only to help the jury understand the results of the examination, but also to demonstrate that a lack of physical evidence of sexual abuse did not preclude sexual abuse when there was a passing of time between the alleged incidents and the physical examination. State v. Chavez, 241 N.C. App. 562, 773 S.E.2d 108, 2015 N.C. App. LEXIS 512 (2015).

Trial court did not commit prejudicial error by allowing an accident report into evidence, which showed redactions for an automobile accident victim’s alcohol use and zeros or blanks for a motorist’s alcohol use because the victim’s estate failed to show any prejudice to warrant a different result at trial in that other unchallenged and admitted evidence showed that the motorist was not under the influence of alcohol. Scheffer v. Dalton, 243 N.C. App. 548, 777 S.E.2d 534, 2015 N.C. App. LEXIS 876 (2015).

Child custody expert’s testimony was admissible because the testimony was (1) limited to the qualified expert’s experience, and (2) relevant and not more prejudicial than probative. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12, 2016 N.C. App. LEXIS 446 (2016).

Testimony of the victim’s suicide was relevant, as it was necessary to complete the story of the crime. State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269, 2016 N.C. App. LEXIS 290 (2016).

Trial court did not abuse its discretion by admitting into evidence a rap song recording alleged to be defendant’s where it was relevant to prove that a social media webpage on which it was found was defendant’s page and that defendant knew that his dog was vicious and that he was proud of that fact. The trial court did not err by determining that the probative value of the song was not substantially outweighed by the prejudicial effect. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98, 2016 N.C. App. LEXIS 184 (2016).

Officer testified as an expert witness of crash investigation and reconstruction and explained to the jury, without objection, that one vehicle had struck a truck from behind, and thus the photographs in question were relevant as the photographs served as a visual aid to the officer’s expert testimony regarding how the accident occurred. State v. Moultry, 246 N.C. App. 702, 784 S.E.2d 572, 2016 N.C. App. LEXIS 342 (2016).

Trial court did not err by overruling defendant’s objections under this rule to the admission of the consensual sexual activity between defendant and his wife because the wife’s testimony was relevant to the victim’s allegations as it showed a common scheme or plan and was sufficiently similar to the victim’s allegations of sexual abuse. The probative value of the evidence was not outweighed by the danger of undue prejudice because it was of great probative value and was not so sensitive to be potentially inflammatory to the jury. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820, 2016 N.C. App. LEXIS 1172 (2016).

Trial court properly admitted a photograph because it illustrated a detective’s testimony that the victim used the photograph to identify defendant; the photograph was relevant to the victim’s identification of defendant, and it was not unduly prejudicial. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

Allowing the State to question defendant’s expert witness regarding the amount of fees he received for testifying in other, unrelated criminal cases was relevant to test partiality towards the party by whom the expert was called. State v. Coleman, 254 N.C. App. 497, 803 S.E.2d 820, 2017 N.C. App. LEXIS 552 (2017).

Clinical studies were admissible in a medical malpractice case because, (1) despite being published after a patient was hospitalized, the studies showed lack of causation and addressed morbidity, and (2) the studies’ subjects’ differences from the patient went to weight, not admissibility, so there was no unfair prejudice. Ingram v. Henderson Cty. Hosp. Corp., 259 N.C. App. 266, 815 S.E.2d 719, 2018 N.C. App. LEXIS 421 (2018).

Given that the trial court redacted civil domestic violence protective orders (DVPOs) and properly instructed the jury regarding the State of North Carolina’s burden of proof as well as the jury’s duty to find the facts in defendant’s trial for misdemeanor stalking, the trial court did not abuse its discretion in admitting the DVPOs and related filings into evidence because the DVPOs were relevant to show defendant’s course of conduct as well as defendant’s motive to commit the offense of stalking. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397, 2018 N.C. App. LEXIS 808 (2018).

Trial court did not err by admitting the photos because they were obtained from defendant’s cell phone, they showed he had access to firearms and the car depicted in one photo, they depicted him at almost the precise location where the shooting took place and one of the gun photos showed defendant in possession of a firearm resembling that used in the shooting. State v. Dixon, 261 N.C. App. 676, 821 S.E.2d 232, 2018 N.C. App. LEXIS 1003 (2018).

Letters were relevant as they indicated that defendant faced financial hardships, and this, coupled with evidence that the victim had threatened to remove defendant from the home and continue to request child support, indicated that the letters made the existence of a financial motive to murder the victim more probable; the court also limited the danger of unfair prejudice by prohibiting the State from publishing to the jury letters which indicated a criminal action against defendant. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Evidence of the jailhouse attack on the witness and testimony that the witness was concerned for his safety was relevant and admissible because defendant was, at minimum, aware of the attack or might have encouraged it; defendant was not unfairly prejudiced in light of the similar unchallenged evidence of defendant’s threats to intimidate the witness; and the evidence was relevant and probative to both the issues of defendant’s knowledge of his guilt and the witness’s credibility, and was not substantially outweighed by any undue prejudice. State v. Smith, 263 N.C. App. 550, 823 S.E.2d 678, 2019 N.C. App. LEXIS 45 (2019).

Trial court properly admitted a domestic violence protective order (DVPO) into evidence because it was relevant to show that defendant’s wife was not residing in or had not recently visited the home at the time a firearm was found, and, even if the DVPO was irrelevant for the purposes attributed to it by the State, such error was harmless where the State put on sufficient evidence that it was not likely that a different verdict would have been reached. State v. Robinson, 264 N.C. App. 135, 823 S.E.2d 167, 2019 N.C. App. LEXIS 144 (2019).

Trial court did not plainly err by admitting evidence of defendant’s past incidents of domestic violence against the victim and her mother because the evidence was relevant as the victim had delayed in reporting the alleged sexual abuse and the evidence went directly to the victim’s fear in reporting the abuse. State v. Betts, 267 N.C. App. 272, 833 S.E.2d 41, 2019 N.C. App. LEXIS 723 (2019), aff'd, modified, 377 N.C. 519, 858 S.E.2d 601, 2021- NCSC-68, 2021 N.C. LEXIS 541 (2021).

Impeachment exception to this rule applied, and therefore the decedent’s impeachment of an assistant division traffic engineer with his report, which stated that the stop sign at the intersection where the accident occurred was “too far out” and needed to be “moved in closer” to the road “for better sight distance,” was relevant to show a defect in the engineer’s perception, memory, and narration, as well as the veracity of his testimony on direct examination. Holland v. French, 273 N.C. App. 252, 848 S.E.2d 274, 2020 N.C. App. LEXIS 641 (2020).

Testimony Which Opens the Door to Otherwise Inadmissible Evidence. —

When defendant testified that he loved his wife and did not intend to kill her, the door was opened to questions by the State as to matters which would show the defendant did not love his wife, as evidenced by his affairs with other women. State v. Norman, 331 N.C. 738, 417 S.E.2d 233, 1992 N.C. LEXIS 414 (1992).

In a cardiologist’s action for breach of employment contract, the employer was properly allowed to present rebuttal evidence of the cardiologist’s prior performance problems at another hospital since the cardiologist had testified regarding his positive performance prior to working for the employer. Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286, 2005 N.C. App. LEXIS 150 (2005).

Testimony by the victim’s grandmother was relevant to show what occurred immediately after defendant’s alleged assault upon the victim as the fact that the victim reported the incident immediately tended to bolster the credibility of her testimony. State v. Harris, 236 N.C. App. 388, 763 S.E.2d 302, 2014 N.C. App. LEXIS 1000 (2014).

Trial court erred in admitting portions of a detective’s notes because defendant “opened the door” to the first page of the detective’s interview notes by eliciting testimony about a notation during cross-examination; the first page of the detective’s notes, which recounted defendant’s self-reported criminal history, was admissible to dispel the favorable inference created by defendant’s selective introduction of a single phrase found at the bottom of the page. State v. Hensley, 254 N.C. App. 173, 802 S.E.2d 744, 2017 N.C. App. LEXIS 455 (2017).

Demonstrative Evidence Properly Admitted. —

Where defendant, who was convicted of strangling his pregnant high school girlfriend with her waitress apron string, testified that his action was impulsive as shown by the fact that he tore off the “skirt” part of the apron after the strangulation. It was proper to allow a detective, using a mannequin at trial, to demonstrate how the apron was tied around the victim’s neck as the demonstration was relevant as to whether defendant acted with premeditation and deliberation and the demonstration was not excessively inflammatory. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637, 2003 N.C. App. LEXIS 1511 (2003).

Repetition of Evidence During Closing Argument. —

Defendant waived his right to object to the admission of testimony of a prosecution witness that he was afraid to testify for fear of gangs and to the prosecutor’s reference to that testimony during closing arguments; because the evidence was previously admitted under G.S. 8C-1, N.C. R. Evid. 401, allowing repetition of the evidence by the State in closing arguments was not an abuse of discretion. State v. Bodden, 190 N.C. App. 505, 661 S.E.2d 23, 2008 N.C. App. LEXIS 1022 (2008), cert. denied, 558 U.S. 865, 130 S. Ct. 175, 175 L. Ed. 2d 111, 2009 U.S. LEXIS 5616 (2009).

III.Irrelevant Evidence.

Prosecutor’s Questions Exceeded the Purpose for Which They Were Allowed. —

Although, in murder prosecution, evidence that defendant was familiar with the gun and had used it previously might have rebutted defendant’s claim of accident, the State greatly exceeded this purpose and questioned the witness at length about the details of the breaking and entering, details which had no connection with the crime for which defendant was being prosecuted. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, 1988 N.C. App. LEXIS 722 (1988).

Evidence Attempting to Implicate Another. —

Evidence showing that the defendant’s ex-girlfriend’s two sons were hostile toward his wife and were not in school on the day of the murder was not admissible under this rule because it did no more than arouse suspicion that the sons had motive and opportunity to murder the victim; this evidence neither directly linked sons to the murder nor tended to exculpate the defendant. State v. Floyd, 143 N.C. App. 128, 545 S.E.2d 238, 2001 N.C. App. LEXIS 215 (2001), cert. denied, 534 U.S. 1092, 122 S. Ct. 838, 151 L. Ed. 2d 717, 2002 U.S. LEXIS 29 (2002).

There was no abuse of discretion in the denial of defendant’s request to argue that another person shot the victim, where there was no evidence presented at trial that pointed directly or indirectly to the guilt of the other person, as the admissibility of the guilt of one other than defendant was governed by the general principle of relevancy, pursuant to G.S. 8C-1, N.C. R. Evid. 401. State v. Bullock, 154 N.C. App. 234, 574 S.E.2d 17, 2002 N.C. App. LEXIS 1476 (2002), cert. denied, 540 U.S. 928, 124 S. Ct. 338, 157 L. Ed. 2d 231, 2003 U.S. LEXIS 7162 (2003).

It was no error to exclude defendant’s testimony that a neighbor sexually assaulted defendant’s other daughter because the testimony (1) did not tend to prove defendant was less likely to have assaulted the victim or (2) impeach defendant’s wife’s eyewitness testimony due to the wife’s failure to report defendant’s assault while reporting the neighbor’s assault. State v. Alonzo, 261 N.C. App. 51, 819 S.E.2d 584, 2018 N.C. App. LEXIS 800 (2018), modified, aff'd, 373 N.C. 437, 838 S.E.2d 354, 2020 N.C. LEXIS 86 (2020).

Evidence of Prior Convictions. —

In an habitual offender prosecution, evidence of convictions not relied on to prove the habitual offender charge were irrelevant and should have been redacted from documents submitted to the jury. State v. Lotharp, 148 N.C. App. 435, 559 S.E.2d 807, 2002 N.C. App. LEXIS 18, rev'd, 356 N.C. 420, 571 S.E.2d 583, 2002 N.C. LEXIS 1102 (2002).

In defendant’s indecent liberties with a child case, the court erred by admitting evidence that defendant sexually assaulted a four-year-old boy 18 years before because there was no evidence of an ongoing pattern of crimes between the 1990 offense and the instant case, but only the single prior conviction for an offense over 18 years old. State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477, 2011 N.C. App. LEXIS 602 (2011).

Evidence Held Irrelevant. —

In trial on charge of first degree rape, which was tried on the theory that defendant was the principal and two other men were aiders and abettors, evidence of previous convictions of the other men was irrelevant under this rule, and being irrelevant, was not admissible. Further, the admission of such evidence violated defendant’s U.S. Const., Amend. VI right to confront the witnesses against him with regard to this charge. State v. Brown, 319 N.C. 361, 354 S.E.2d 225, 1987 N.C. LEXIS 1921 (1987).

Testimony of cellmate and detective that defendant was in jail on a charge of attempted murder of his girlfriend was not relevant where defendant was on trial for an unrelated crime of murder since the court determined that this testimony was not relevant to any fact or issue other than the character of the accused. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566, 1988 N.C. LEXIS 465 (1988).

Evidence of prior, noncriminal unrelated fire held inadmissible because of its prejudicial character since such evidence was irrelevant in that it neither confirmed nor suggested a relationship between two defendants charged with burning down a food market. Moreover, the State failed to show defendants had any connection with the previous fire. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607, 1988 N.C. App. LEXIS 632 (1988).

There can be no question that prejudice resulted from the testimony that defendant had returned to witness’s motel room three hours after the murder occurred with “mud or grass” stains on the knees of his pants, and that he was “very nervous and upset” and wanted to “get drunk” and did so, and the prejudicial effect of this testimony far outweighed the need to show witness to be less than credible (especially where the remainder of her testimony included little of value in the State’s case) or the need to bolster officer’s credibility. State v. Hunt, 324 N.C. 343, 378 S.E.2d 754, 1989 N.C. LEXIS 252 (1989), aff'd, 339 N.C. 622, 457 S.E.2d 276, 1994 N.C. LEXIS 717 (1994).

In wrongful death action, trial court erred in denying administrator’s in limine motion seeking to prevent the admission of testimony concerning decedent’s possession of a firearm and his blood/alcohol level; since no testimony existed on record that the defendant knew decedent had a handgun in his possession or that he was aware that decedent had consumed any alcohol, this evidence was not relevant. Young v. Warren, 95 N.C. App. 585, 383 S.E.2d 381, 1989 N.C. App. LEXIS 829 (1989).

Proffered testimony as to the victim’s alcohol consumption with other people in party settings had no tendency to prove that the victim consented to sexual activity with the defendant on the day in question. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Admission in capital case of testimony by fingerprint expert witness to the effect that he had discovered identifiable fingerprints in only three percent of the criminal cases in which he had been involved was error, as the testimony was not relevant to the issues in the case; however, the error was not prejudicial. State v. Robinson, 330 N.C. 1, 409 S.E.2d 288, 1991 N.C. LEXIS 666 (1991).

The trial court did not abuse its discretion by not permitting cross-examination of witness in order to show the extent of the affectionate relations between defendant and the witness after a shooting. State v. Bryant, 337 N.C. 298, 446 S.E.2d 71, 1994 N.C. LEXIS 421 (1994).

Where defendant was charged with trafficking in cocaine, the mere ownership of a passport showing travel to Colombia was not probative of a fact at issue in the case. State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425, 1996 N.C. App. LEXIS 123 (1996).

Even though the trial court erred in admitting evidence of defendant’s passport showing travel to Colombia, that error alone did not mandate a new trial where it was unlikely that a different result would have occurred at trial but for the introduction of the passport. State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425, 1996 N.C. App. LEXIS 123 (1996).

Testimony of codefendant’s cell mate, which defendant sought to introduce to prove codefendant’s manipulative hold over defendant, did not concern defendant’s motives or any actions taken by defendant in relation to proving his guilt or innocence, and as such was collateral and irrelevant. State v. York, 347 N.C. 79, 489 S.E.2d 380, 1997 N.C. LEXIS 599 (1997).

The fact that defendant’s wife had a prior criminal record, used drugs, had extra-marital affairs, and had a baby by another man during her marriage to defendant were of no relevance to any theory of defendant’s case, nor probative of his defense of diminished capacity. State v. Clark, 128 N.C. App. 87, 493 S.E.2d 770, 1997 N.C. App. LEXIS 1280 (1997), cert. denied, 348 N.C. 285, 501 S.E.2d 913, 1998 N.C. LEXIS 282 (1998).

In a rape and kidnapping case, evidence that defendant possessed pornographic magazines was not relevant because it did not tend to make the existence of any fact that is of consequence more or less probable since they were not shown to the victim, and they were not used to show dominion and control over a motel room; however, the error was harmless since a different outcome in the case would not have resulted due to overwhelming evidence of guilt. State v. Moore, 173 N.C. App. 494, 620 S.E.2d 1, 2005 N.C. App. LEXIS 2103 (2005), cert. dismissed, 634 S.E.2d 894, 2006 N.C. LEXIS 612 (2006).

In a rape and kidnapping case, evidence of a criminal citation issued to defendant for drugs a few days before an attack was not relevant because it did not matter whether defendant actually possessed drugs; the admission of the evidence was harmless because the State could have proven the attack at any rate due to the testimony of the victim. State v. Moore, 173 N.C. App. 494, 620 S.E.2d 1, 2005 N.C. App. LEXIS 2103 (2005), cert. dismissed, 634 S.E.2d 894, 2006 N.C. LEXIS 612 (2006).

In defendant’s trial ending in her conviction for second-degree murder, evidence of her prior conduct in shooting a dog was irrelevant under G.S. 8C-1-401; the evidence was not necessary to show that defendant was knowledgeable about firearms or had used a gun in the past because defendant had admitted that she shot her victim and whether or not she knew how to use a pistol was not contested, and the evidence was irrelevant to her claim of self-defense. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

In the absence of evidence connecting a nine-millimeter bullet to a murder victim or to the defendant, the bullet was not relevant evidence, G.S. 8C-1, N.C. R. Evid. 401; the bullet did not have any tendency to prove that defendant committed the crime. State v. Bodden, 190 N.C. App. 505, 661 S.E.2d 23, 2008 N.C. App. LEXIS 1022 (2008), cert. denied, 558 U.S. 865, 130 S. Ct. 175, 175 L. Ed. 2d 111, 2009 U.S. LEXIS 5616 (2009).

Domestic violence protective order against entered against a father pursuant to G.S. 50B-3 was erroneous because there was no competent evidence that the father had placed a member of the mother’s family in fear of (1) imminent serious bodily injury or (2) continued harassment that rose to such a level as to inflict substantial emotional distress; the fact that there was an investigation by the Department of Social Service was not relevant where there was no evidence presented regarding what any alleged investigation revealed. The director of Department of Social Service was required to investigate any report of abuse, neglect, or dependency pursuant to G.S. 7B-302(a). Burress v. Burress, 195 N.C. App. 447, 672 S.E.2d 732, 2009 N.C. App. LEXIS 148 (2009).

Evidence about the guns was wholly irrelevant and, thus, inadmissible because there was not a scintilla of evidence linking either of the guns to the crimes charged where (1) the victims’ description of the gun used in the attack did not match either of the guns found in defendant’s closet; (2) neither witness identified either gun as the gun used in the robbery; and (3) although the assailant used the gun to hit the victim just above the eyebrow, opening up a bloody gash, no tissue or blood was collected from either gun. State v. Samuel, 203 N.C. App. 610, 693 S.E.2d 662, 2010 N.C. App. LEXIS 726 (2010).

Trial court erred in allowing gang-related testimony because it had no tendency to make any fact of consequence more likely than not; the State’s proffered evidence that defendant was a self-admitted gang member was neither relevant to the alleged criminal act nor to the aggravating factor of which the State had given notice of its intent to show, and the admission of the testimony constituted plain error because it had a probable impact on the jury’s finding that defendant was guilty. State v. Hinton, 226 N.C. App. 108, 738 S.E.2d 241, 2013 N.C. App. LEXIS 275 (2013).

Trial court erred by admitting two photographs, as substantive evidence, when a police detective was not able to authenticate the two photographs as depicting defendant’s sons because the photographs did not have any tendency to make the existence of any fact of consequence more probable or less probable than it would have been without the photographs. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452, 2013 N.C. App. LEXIS 882 (2013).

Trial court did not err in excluding evidence about gang culture and evidence from other witnesses about the decedent’s gang membership because the evidence was irrelevant; none of the proffered evidence related to what defendant knew about the victim’s gang membership or character for violence. State v. Gayles, 233 N.C. App. 173, 756 S.E.2d 46, 2014 N.C. App. LEXIS 300 (2014), cert. dismissed, 368 N.C. 687, 781 S.E.2d 610, 2016 N.C. LEXIS 111 (2016).

In a case involving first degree rape and other offenses, evidence regarding a police department’s evidence room was not relevant because the condition of the refrigerators had no tendency to make the existence of any fact more or less probable; moreover, the probative value was minimal, and photographs of the refrigerators might have confused the issues and misled the jury. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565, 2014 N.C. App. LEXIS 1210 (2014).

While the trial court properly admitted evidence of a subsequent murder to show a common plan or design, the cumulative effect of the trial court’s errors deprived defendant of a fair trial where there was a distinct risk that the jury might have been led to convict based on evidence of an offense not then before it, allowed the second victim’s sister to testify about that victim’s good character, which evidence was irrelevant to the crime charged, and allowed the prosecution to argue that defense counsel had in effect suborned perjury when, whether or not defendant committed perjury, there was no evidence that he had done so at his attorneys’ behest. State v. Hembree, 368 N.C. 2, 770 S.E.2d 77, 2015 N.C. LEXIS 265 (2015).

Neither defendant proffered evidence tending to both implicate another person and exculpate either defendant; the proffered evidence merely inferred that another person might have been involved in or assisted in committing the crimes. Such inferences, if true, were not inconsistent with direct and eyewitness evidence of either defendant’s guilt, and the trial court’s exclusion of the proffered evidence, as not relevant and not admissible, was not reversible error. State v. Abbitt, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

Trial court did not err by concluding that cross-examination concerning the victims’ civil suit was irrelevant because defendant did not seek to question the victim about a suit the victims had filed against defendant, but instead sought to question him about a suit they had filed against a third party-the parking lot owner. It was not necessary for the victims to prove in the civil suit that defendant was the assailant, but simply that the attack occurred; defendant’s alleged involvement in the attack was immaterial to the civil suit. State v. Glenn, 274 N.C. App. 325, 852 S.E.2d 436, 2020 N.C. App. LEXIS 784 (2020).

In a case involving assault on a law enforcement officer and attempted robbery charges, testimony concerning the field test conducted on a substance found in a plastic bag on defendant after the charged assault and attempted common law robbery was irrelevant, as it did not help to explain the officers’ investigative actions before or during the events underlying the charges. The testimony regarding the field test should have been excluded, not limited via judicial instruction. State v. Cobb, 272 N.C. App. 81, 845 S.E.2d 870, 2020 N.C. App. LEXIS 466 (2020).

As a consent order constituted an express contract, evidence tending to show that a company was unjustly enriched as the result of defendant’s conduct was simply not relevant to plaintiff’s breach of contract claim. Scigrip, Inc. v. Samuel B. Osae & Scott Bader (Feb. 28, 2019).

Although some of the expert’s testimony touched upon information relevant to plaintiff’s breach of contract claim, the opinions the expert expressed concerning whether the information constituted a trade secret had no bearing upon the validity of the contract claim, which was governed by the consent judgment. Scigrip, Inc. v. Samuel B. Osae & Scott Bader (Feb. 28, 2019).

Even though the trial court erred by admitted evidence of the submerged truck because it was not relevant to the insurance fraud charge, as it did not have a tendency to make any fact of defendant’s failure to disclose major repairs more or less probable, defendant was not prejudiced because sufficient evidence supported defendant’s conviction for insurance fraud. The truck for which defendant obtained insurance had previously been involved in an accident and the mechanic’s testimony supported a finding that the repairs he preformed on the truck were major. State v. Koke, 264 N.C. App. 101, 824 S.E.2d 887, 2019 N.C. App. LEXIS 132 (2019).

Neither defendant proffered evidence tending to both implicate another person and exculpate either defendant; the proffered evidence merely inferred that another person might have been involved in or assisted in committing the crimes. Such inferences, if true, were not inconsistent with direct and eyewitness evidence of either defendant’s guilt, and the trial court’s exclusion of the proffered evidence, as not relevant and not admissible, was not reversible error. State v. Abbitt, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

Failure to Disclose Evidence Deemed Irrelevant. —

Failure to disclose an internal report pertaining to a lead detective in the investigation of defendant’s case was not erroneous, as the report was not material in the constitutional sense when the State was able to prove its case through the testimony of other law enforcement officers and without the detective ever taking the stand. State v. McCoy, 228 N.C. App. 488, 745 S.E.2d 367, 2013 N.C. App. LEXIS 833 (2013).

Erroneously But Not Prejudicially Admitted. —

The State’s exhibition of investigating officer’s gun was error but not prejudicial error; the gun had not been introduced into evidence, and the exhibition was not relevant under this rule because the evidence did not establish any relationship between the investigating officer’s gun and the gun used by defendant other than that defendant’s gun “could have been a little bigger” than the investigating officer’s gun. The exhibition of the gun did not establish that defendant knew the procedure for firing the gun that he used in the shootings; rather, this fact was established by his testimony regarding his use of his own gun. State v. Godley, 140 N.C. App. 15, 535 S.E.2d 566, 2000 N.C. App. LEXIS 1097 (2000), cert. denied, 532 U.S. 964, 121 S. Ct. 1499, 149 L. Ed. 2d 384, 2001 U.S. LEXIS 2820 (2001).

Evidence that defendant, who shot a police officer with a shotgun, possessed a pistol was irrelevant because the pistol was not connected to the shooting in any way; the error was harmless under G.S. 15A-1443(a), however, because of the overwhelming evidence of defendant’s guilt. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258, 2006 N.C. App. LEXIS 1637 (2006).

In defendant’s prosecution for trafficking in cocaine by possession, the admission of testimony about defendant’s alleged gang affiliation was erroneous under G.S. 8C-1-403 because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant trafficked in or possessed cocaine under G.S. 90-95(h)(3), but the error was harmless because the evidence of defendant’s guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275, 2007 N.C. App. LEXIS 1739 (2007).

In defendant’s prosecution for carrying a concealed weapon, the admission of testimony about the effect of hollow point bullets, which were found in the weapons seized from defendant and defendant’s associate, was erroneous because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant possessed a concealed weapon under G.S. 14-269(a1), but the error was harmless because the evidence of defendant’s guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275, 2007 N.C. App. LEXIS 1739 (2007).

Trial court abused its discretion in allowing the State, over defendant’s objection, to make arguments referencing the amount of punishment that the finding of an aggravating factor would empower a judge to impose and the effect of the merger doctrine on defendant’s convictions in the closing arguments, as those issues were irrelevant to the issue of a factor’s presence in an offense; however, based on the overwhelming evidence that defendant was operating his vehicle at a dangerously high rate of speed while legally intoxicated, there was no reasonable possibility that, had the error in question not been committed, a different result would have been reached, and the error was therefore not prejudicial. State v. Lopez, 188 N.C. App. 553, 655 S.E.2d 895, 2008 N.C. App. LEXIS 199 (2008), aff'd, 363 N.C. 535, 681 S.E.2d 271, 2009 N.C. LEXIS 795 (2009).

Picture of the decedent with his family was irrelevant in that it did not make the existence of any fact that was of consequence to the determination of the murder trial more probable or less probable than it would have been without the evidence. However, the admission of the evidence was harmless due to the fact that, following defendant’s objection to the picture, a witness testified about the decedent’s family life and described his family, including his wife and two young children, without objection. State v. Mitchell, 194 N.C. App. 705, 671 S.E.2d 340, 2009 N.C. App. LEXIS 10 (2009), cert. denied, 363 N.C. 809, 692 S.E.2d 391, 2010 N.C. LEXIS 134 (2010), cert. denied, 363 N.C. 809, 692 S.E.2d 392, 2010 N.C. LEXIS 137 (2010), cert. denied, 363 N.C. 809, 692 S.E.2d 392, 2010 N.C. LEXIS 302 (2010).

Evidence of defendant’s aunt’s trial and conviction for drug trafficking was not relevant in defendant’s trial for various controlled substance and firearms offenses, because it did not make the existence of any fact that was consequential to defendant’s guilt or innocence more or less probable that it would have been without the evidence. State v. Cowan, 194 N.C. App. 330, 669 S.E.2d 811, 2008 N.C. App. LEXIS 2248 (2008).

Evidence Improperly Admitted. —

Defendant’s conviction of indecent liberties with a child under G.S. 14-202.1 was reversed as a composition book entry relating to defendant’s forced anal intercourse with an adult woman was inadmissible under G.S. 8C-1, N.C. R. Evid. 401 and 404(b) to prove intent and sexual gratification since the actual force used in the composition book was not analogous to the constructive force theory between a parent and a child; the writings did not give rise to any inference that defendant was desirous of or obtained sexual gratification from anal intercourse with his four- or six-year-old son. State v. Davis, 726 S.E.2d 900, 2012 N.C. App. LEXIS 764 (Ct. App. 2012), op. withdrawn, 2012 N.C. App. LEXIS 824 (N.C. Ct. App. June 29, 2012), sub. op., 222 N.C. App. 562, 731 S.E.2d 236, 2012 N.C. App. LEXIS 1030 (2012).

Court properly excluded evidence that victim’s father had been convicted of sexually assaulting the victim’s sister 17 years before the claimed sexual assault allegedly committed by defendant was properly excluded. State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420, 2004 N.C. App. LEXIS 592 (2004).

Evidence Properly Excluded. —

In an action against an insurer in which plaintiff sought to recover the cost of chiropractic services rendered to her and her two minor children as a result of injuries sustained in an automobile collision, where plaintiff testified to the extent and type of damage to her automobile as a result of the collision, the court, in the exercise of its discretion under G.S. 8C-1, Rule 403, could properly exclude the automobile repair bill by which plaintiff sought to corroborate her testimony, as this evidence was cumulative and its probative value was weak, and moreover, the potential for confusion of issues by its admission was clear. Brown v. Allstate Ins. Co., 76 N.C. App. 671, 334 S.E.2d 89, 1985 N.C. App. LEXIS 3920 (1985).

Proffered testimony as to the amount of rent victim was paying for her apartment had no logical tendency to prove that the shower in her apartment was in good working order on the day in question. State v. Coen, 78 N.C. App. 778, 338 S.E.2d 784, 1986 N.C. App. LEXIS 2013 (1986).

Evidence that another person, bearing a resemblance to defendant and utilizing a modus operandi similar to that used in the robbery for which defendant was being tried, robbed another fast food restaurant two months after the robbery was not admissible where there was no evidence that the other person committed the crime with which defendant was charged. Stated another way, the proffered evidence did not point directly to the other person’s guilt of the crime with which the defendant was charged. Neither did the proffered evidence in any way refute the identification of the defendant by the eyewitnesses as the perpetrator of the robbery. State v. Allen, 80 N.C. App. 549, 342 S.E.2d 571, 1986 N.C. App. LEXIS 2187 (1986).

The fact that defendant pointed his gun at victim three years previously and that both men laughed afterward did not indicate that three years later defendant did not fear victim or make the apparent necessity to defend himself more or less probable than it would be without the evidence; thus, it was error to allow testimony of this extrinsic act of misconduct in order to show the defendant’s character for violence and that therefore he must have acted in conformity with that character, and not in self defense, when he fatally shot the victim. State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130, 1986 N.C. App. LEXIS 2750 (1986).

In prosecution of defendant for committing sexual offenses upon two of her young stepsons, trial court committed reversible error in excluding evidence that defendant, her husband and the oldest stepson consulted a lawyer for the purpose of bringing an action for custody of the boys against their natural mother shortly before natural mother accused defendant of sexual offenses against them, as this evidence was relevant in tending to establish why natural mother might have suborned her sons’ testimony. State v. Helms, 322 N.C. 315, 367 S.E.2d 644, 1988 N.C. LEXIS 292 (1988).

The evidence defendant sought to introduce in his trial for first-degree sexual offense of his two daughters, which primarily involved his marital dispute over their property would only have muddled the evidence worthy of the jury’s consideration, and the trial court committed no error in precluding the introduction of evidence regarding defendant’s theory that the victim’s mother devised this scheme for her financial benefit. State v. Knight, 93 N.C. App. 460, 378 S.E.2d 424, 1989 N.C. App. LEXIS 207 (1989).

Where defendant was accused of sexually abusing his 14-year-old adopted daughter, evidence regarding a prior accusation of sexual misconduct made by the prosecutrix directed at her uncle was relevant and defendant should not have been prevented from offering such proof at his trial. State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553, 1989 N.C. App. LEXIS 936 (1989).

The trial court properly excluded exhibits which merely indicated plaintiff’s legal position towards defendants and did not have a tendency to prove a fact at issue in the case. Raintree Homeowners Ass'n v. Bleimann, 116 N.C. App. 561, 449 S.E.2d 13, 1994 N.C. App. LEXIS 1072 (1994), rev'd, 342 N.C. 159, 463 S.E.2d 72, 1995 N.C. LEXIS 553 (1995).

Interjecting evidence which the defendant contended would allow the jury to infer his immaturity, and immaterial matter, so that the jury could make an additional leap to infer a fact of consequence, that he lacked capacity to form the requisite intent would have unnecessarily confused the issues, given the slight probative value of the contested evidence; therefore, even if this evidence was relevant and admissible, its exclusion was within the trial court’s discretion. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479, 1994 N.C. LEXIS 702 (1994).

Trial court properly denied defendant’s motion to question victim about prior arrests, where the arrests showed nothing beyond the facts that victim was arrested and there was insufficient evidence to proceed with the charges. State v. Johnson, 128 N.C. App. 361, 496 S.E.2d 805, 1998 N.C. App. LEXIS 32 (1998), cert. denied, 350 N.C. 842, 538 S.E.2d 581, 1999 N.C. LEXIS 775 (1999).

Trial court properly precluded defendant from cross-examining victim concerning an alleged sexual offense on grounds of lack of relevance. State v. Chavis, 134 N.C. App. 546, 518 S.E.2d 241, 1999 N.C. App. LEXIS 858 (1999).

The trial court properly excluded the defendant’s proffered expert testimony that the defendant was reacting to a potential fear that he was about to be harmed when defendant killed the victim since such testimony would not aid but rather tend to confuse the jury in understanding the evidence and determining the facts in issue. State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807, 2000 N.C. LEXIS 441 (2000).

Evidence of substantial amounts of drugs belonging to others and seized at the trailer where the defendant lived was irrelevant, prejudicial and inadmissible to show his knowledge that the substance in a van he was driving was cocaine where the defendant was not charged with any offense in connection with the drugs seized. State v. Moctezuma, 141 N.C. App. 90, 539 S.E.2d 52, 2000 N.C. App. LEXIS 1287 (2000).

Trial court properly excluded as irrelevant evidence regarding the income and assets of an ex-wife’s current husband, who was not a party, because a prior out-of-state court order determined the obligations of the ex-wife and her ex-husband for their sons educational and medical expenses and that order, by its plain and unambiguous language, obligated only the parties to pay for their sons’ expenses and mandated that only the parties’ income, assets, and liabilities be considered. Helms v. Schultze, 161 N.C. App. 404, 588 S.E.2d 524, 2003 N.C. App. LEXIS 2202 (2003).

Where defendant was indicted for first-degree kidnapping, but the arrest warrant charged him with second-degree kidnapping, the trial court properly denied defendant’s attempt to admit evidence of the arrest warrant since it had no relevance on the issue of defendant’s guilt or whether the victim was released in a “safe place,” because the allegations of an arrest warrant do not necessarily “frame” what is relevant to a particular criminal case tried upon an indictment. State v. Corbett, 168 N.C. App. 117, 607 S.E.2d 281, 2005 N.C. App. LEXIS 146 (2005), aff'd, 360 N.C. 287, 624 S.E.2d 625, 2006 N.C. LEXIS 4 (2006).

Personal representatives for a decedent were properly disallowed from admitting evidence of a fishing club’s insurance policy because the policy did not show whether a boat driver, who was a director for the fishing club, was its agent. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436, 2005 N.C. App. LEXIS 18 (2005).

In a termination of parental rights hearing in a case in which a mother’s children were removed from her because, inter alia, her house was unsanitary, and the children were adjudicated neglected on that basis, in part, it was proper for the trial court to sustain an objection, at the termination hearing, to questions about the condition of the mother’s home the day after the department of social services’ initial visit there, because the relevant issue, under G.S. 8C-1, N.C. R. Evid. 401, at the termination hearing was whether the evidence supported a finding of neglect at the time of the termination hearing, rather than the condition of the mother’s home before the children were adjudicated neglected. In re J.W., 173 N.C. App. 450, 619 S.E.2d 534, 2005 N.C. App. LEXIS 2109 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 780, 2006 N.C. LEXIS 11 (2006).

That an unidentified man accused the victim of assault several years before the murder for which defendant was charged took place did not make any fact in the case more probable or less probable, and the trial court’s ruling that the testimony was not relevant and was, hence, inadmissible until defendant introduced substantive evidence of self-defense or evidence that the victim was the first aggressor, was not in error. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1, 2005 N.C. LEXIS 842 (2005).

Trial court properly prohibited defendant from cross-examining a witness who was also at the crime scene as to why he refused to voluntarily submit DNA sample to compare with that taken from a hat; conflicting testimony was presented as to whether the assailant was wearing a hat, and thus whether or not the witness would submit to a DNA test did no more than raise a conjecture that he was wearing the hat, a fact which was not inconsistent with defendant’s guilt and did not directly point to the witness’s guilt. State v. Ryals, 179 N.C. App. 733, 635 S.E.2d 470, 2006 N.C. App. LEXIS 2161 (2006).

Evidence of prior methamphetamine use by a shed owner’s daughter was not relevant, as it did not tend to exculpate defendant, who was charged with various drug related offenses, in any way. State v. Loftis, 185 N.C. App. 190, 649 S.E.2d 1, 2007 N.C. App. LEXIS 1701 (2007).

Parents’ substance abuse records were not relevant during the adjudication hearing in a neglect and dependency case because the department of social services presented sufficient evidence of the parents’ substance abuse without the subject records, and based upon the evidence presented, the trial court made findings regarding the parents’ substance abuse and its impact on the welfare of the children. In re E.P, 183 N.C. App. 301, 645 S.E.2d 772, 2007 N.C. App. LEXIS 1163, aff'd, 362 N.C. 82, 653 S.E.2d 143, 2007 N.C. LEXIS 1229 (2007).

In an involuntary manslaughter case, the trial court did not err in excluding the testimony of a nurse and a trooper, that defendant’s brother told him he was a passenger in defendant’s car at the time of the accident, because it was irrelevant; the excluded evidence did not point directly to the guilt of defendant’s brother, did not tend to implicate defendant’s brother in the commission of the crimes, and was not inconsistent with defendant’s guilt. State v. Lopez, 188 N.C. App. 553, 655 S.E.2d 895, 2008 N.C. App. LEXIS 199 (2008), aff'd, 363 N.C. 535, 681 S.E.2d 271, 2009 N.C. LEXIS 795 (2009).

Trial court did not err in precluding ex mero motu defendant’s cross-examination of his employer regarding the side effects of the chemicals to which defendant was exposed the day prior to a collision because defendant failed to show that the preclusion of the testimony constituted a manifest abuse of discretion; the trial court interrupted defense counsel’s cross-examination, which attempted to introduce evidence of defendant’s impairment by chemicals at work, sent the jury out of the courtroom, and found that the questioning was irrelevant, and defendant failed to request a limiting instruction upon the jury’s return and to lay a sufficient foundation for the line of questioning through later testimony. State v. Cook, 193 N.C. App. 179, 666 S.E.2d 795, 2008 N.C. App. LEXIS 1750 (2008).

Trial court properly excluded the proffered testimony of a sales agent’s other clients because it was irrelevant; the agent’s “good acts” or innocuous conduct with respect to his other clients did not tend to make the fact that he defrauded investors more or less probable given that the investors only alleged and attempted to prove that the agent defrauded them in connection with their investments. Latta v. Rainey, 202 N.C. App. 587, 689 S.E.2d 898, 2010 N.C. App. LEXIS 366 (2010).

Even if a trial court erred in excluding investors’ net worths, a sales agent failed to demonstrate any prejudice resulting from the exclusion of the evidence because he testified that he took the investors’ net worths into consideration in determining whether to recommend investing in a corporation; although the trial court prevented the agent from presenting to the jury evidence of each investors’ net worth in specific monetary terms, the agent testified extensively that the corporation’s investments were suitable for the investors based on their net worths. Latta v. Rainey, 202 N.C. App. 587, 689 S.E.2d 898, 2010 N.C. App. LEXIS 366 (2010).

Neuropharmacologist could not testify regarding the existence of a direct connection between any withdrawal symptoms and the reliability of defendant’s confession; accordingly, this testimony was properly excluded by the trial court under G.S. 8C-1-401. State v. Lane, 365 N.C. 7, 707 S.E.2d 210, 2011 N.C. LEXIS 141, cert. denied, 565 U.S. 1081, 132 S. Ct. 816, 181 L. Ed. 2d 529, 2011 U.S. LEXIS 8690 (2011).

There was no error in the exclusion of defendant’s opinion testimony regarding his medical conditions and its impact on his conduct as it was more confusing than helpful to the jury without further supporting evidence, such as expert testimony, demonstrating its relevance. State v. Solomon, 259 N.C. App. 404, 815 S.E.2d 425, 2018 N.C. App. LEXIS 436 (2018).

Because what did or did not happen to other town council members was not relevant to the question of one member’s residence, testimony to that effect would be properly excluded; the member had a full opportunity to test a citizen’s credibility and purported biases for bringing the voter registration challenge on cross-examination following her testimony, but chose not to do so. Rotruck v. Guilford Cty. Bd. of Elections, 267 N.C. App. 260, 833 S.E.2d 345, 2019 N.C. App. LEXIS 718 (2019).

I.General Consideration.

Test for determining whether evidence of crimes, wrongs or acts other than those specifically at issue is admissible is whether the incidents are sufficiently similar and not too remote in time so as to be more probative than prejudicial under the balancing test of this rule. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988); State v. Boyd, 321 N.C. 574, 364 S.E.2d 118, 1988 N.C. LEXIS 23 (1988); Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825, 1994 N.C. App. LEXIS 920 (1994); State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80, 1999 N.C. App. LEXIS 111 (1999).

In deciding whether evidence of insurance should be received under G.S. 8C-1, N.C. R. Evid. 411, a trial court should engage in the following analysis: (1) Is the insurance coverage offered for a purpose other than to show that a person acted negligently or otherwise wrongfully; (2) If so, is the evidence relevant to show that other purpose; and (3) If so, is the probative value of the relevant evidence substantially outweighed by the factors set forth in G.S. 8C-1, N.C. R. Evid. 403. Williams v. Bell, 167 N.C. App. 674, 606 S.E.2d 436, 2005 N.C. App. LEXIS 18 (2005).

Although admissible under G.S. 8C-1, Rule 404(b), the probative value of evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under this rule. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Even if testimony is admissible as corroborative, the trial court still must determine whether its probative value outweighs the danger of unfair prejudice to defendant. State v. Coffey, 345 N.C. 389, 480 S.E.2d 664, 1997 N.C. LEXIS 24 (1997).

“Unfair prejudice,” as used in this rule, means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986); State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327, 1986 N.C. App. LEXIS 2670 (1986).

Unfairness of Prejudice Is Determinative. —

All evidence favorable to plaintiff will be, by definition, prejudicial to defendants; however, the test under this rule is whether that prejudice to defendants is unfair. Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594, 1987 N.C. App. LEXIS 3451 (1987); Screaming Eagle Air, Ltd. v. Airport Comm'n, 97 N.C. App. 30, 387 S.E.2d 197, 1990 N.C. App. LEXIS 30 (1990).

Question of Prejudice Is One of Degree. —

Necessarily, evidence which is probative in the State’s case will have a prejudicial effect on the defendant; the question is one of degree. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885, 1986 N.C. LEXIS 2431 (1986).

Whether to exclude evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice is a matter left to the sound discretion of the trial court, and the question is one of degree, because evidence that is probative of the state’s case necessarily will have a prejudicial effect on the defendant. State v. Hoffman, 349 N.C. 167, 505 S.E.2d 80, 1998 N.C. LEXIS 561 (1998), cert. denied, 526 U.S. 1053, 119 S. Ct. 1362, 143 L. Ed. 2d 522, 1999 U.S. LEXIS 2399 (1999).

Probative Value Must Be Substantially Outweighed. —

Most evidence tends to prejudice the party against whom it is offered; to be excluded, the probative value of the evidence must not only be outweighed by the danger of unfair prejudice, it must be substantially outweighed. State v. Lyons, 340 N.C. 646, 459 S.E.2d 770, 1995 N.C. LEXIS 391 (1995).

Once a trial court determines that other crimes evidence is properly admissible under G.S. 8C-1, Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under G.S. 8C-1, Rule 403. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198, 2001 N.C. App. LEXIS 430, cert. denied, 354 N.C. 222, 554 S.E.2d 647, 2001 N.C. LEXIS 1024 (2001).

Trial court did not abuse its discretion by admitting evidence of other break-ins alleged to have been perpetrated by defendant nine and 12 months after the break-in for which defendant was on trial because the lapses of time were not too remote considering the great similarity between the subsequent incidents and the one for which defendant was on trial where the perpetrator in each case had broken glass to enter a store and had used a large, white bag to carry away cartons of cigarettes and where defendant was identified by police officers as the perpetrator in the two subsequent break-ins; hence, the probative value of such evidence was not substantially outweighed by any prejudice resulting from its admission. State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519, 2003 N.C. App. LEXIS 1820 (2003).

Specific Finding Not Required So Long as Balancing Test Occurred. —

The court’s failure to make a specific finding as to whether the probative value of the evidence of defendant’s prior assault on murder victim outweighed its prejudicial effect did not constitute reversible error where the court conducted the balancing test required by this rule outside the presence of the jury. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388, 2000 N.C. App. LEXIS 1405 (2000).

As long as the procedure followed by the trial court when admitting prejudicial evidence demonstrates that a balancing test, weighing the prejudicial impact of the evidence against its probative value, has been conducted, a specific finding is not required. State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547, 2002 N.C. App. LEXIS 411 (2002).

Where the State presented substantial evidence of guilt of second-degree sexual offense through the testimony of a cellmate, which was corroborated by two other inmates who heard defendant bragging about the sexual assault, the trial court did not commit plain error in admitting evidence of defendant’s prior acts, despite defendant’s claim that the trial court failed to use a balancing test. State v. Locklear, 174 N.C. App. 547, 621 S.E.2d 254, 2005 N.C. App. LEXIS 2465 (2005).

Factors to Consider in Determining Admissibility. —

Although no definitive test for the admissibility of photographs alleged to be inflammatory and unduly prejudicial has been developed, factors that courts have looked to in the past include: (1) the number of the photographs; (2) whether the photographs were unnecessarily duplicative of other testimony; (3) whether the purpose of the photographs was aimed solely at arousing the passions of the jury; and (4) the circumstances surrounding the presentation of the photographs. State v. Brown, 335 N.C. 477, 439 S.E.2d 589, 1994 N.C. LEXIS 9 (1994).

Although the trial court did not state its reason(s) for refusing to allow the persons who made statements regarding defendant’s prior acts to testify, the court could have concluded that such testimony would have merely wasted time; thus, defendant’s contention that the prosecutor’s argument regarding the statements was improper because the evidence was necessarily prejudicial was unpersuasive to the appellate court. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Where a party is responsible for opening the door with respect to certain evidence, that party may not complain of unfair prejudice resulting from its admission. Everhart v. O'Charley's, Inc., 200 N.C. App. 142, 683 S.E.2d 728, 2009 N.C. App. LEXIS 1627 (2009).

Expert opinion regarding the general reliability of children’s statements may be admissible so long as the requirements of G.S. 8C-1, N.C. R. Evid. 702 and this rule are met. As with any proposed expert opinion, the trial court shall use its discretion, guided by this rule and Rule 702, to determine whether the testimony should be allowed in light of the facts before it. State v. Walston, 244 N.C. App. 299, 780 S.E.2d 846, 2015 N.C. App. LEXIS 992 (2015), rev'd, 369 N.C. 547, 798 S.E.2d 741, 2017 N.C. LEXIS 279 (2017).

Passage of Time Should Be Weighed in Admitting Evidence. —

A process that allows for the passage of time to be weighed in a court’s initial decision to admit such evidence is the better reasoned approach and one that ensures that an accused is tried only for the acts for which he has been indicted. State v. Jones, 322 N.C. 585, 369 S.E.2d 822, 1988 N.C. LEXIS 475 (1988).

Effect of Remoteness in Time. —

Remoteness in time is most important where evidence of another crime is used to show that both crimes arose out of a common scheme or plan; remoteness in time is less important when the other crime is admitted because its modus operandi is so strikingly similar to the modus operandi of the crime being tried as to permit a reasonable inference that the same person committed both crimes. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Generally, remoteness in time goes to the weight of the evidence and not to its admissibility. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Defendant’s Conduct After Crime. —

There is no rule prohibiting the admission of evidence concerning a defendant’s conduct after the crime as long as it has a tendency to shed light on the issue of whether the defendant committed the crime for which he or she is standing trial; in order to evaluate the validity of a defendant’s argument the court determines whether that evidence had probative value without being overly concerned about the temporal relationship between the events and the date upon which the crime was committed. State v. Young, 368 N.C. 188, 775 S.E.2d 291, 2015 N.C. LEXIS 687 (2015).

Prior Bad Act. —

Where the testimony tended to prove that defendant’s prior acts of sexual abuse occurred continuously over a period of twenty-six years, the prior bad acts were not too remote in time to be considered evidence of defendant’s common plan or scheme to sexually abuse female family members. State v. Frazier, 344 N.C. 611, 476 S.E.2d 297, 1996 N.C. LEXIS 510 (1996).

Prior acts evidence was properly admitted under both G.S. 8C-1, N.C. R. Evid. 404(b) and G.S. 8C-1, N.C. R. Evid. 403 where notable similarities existed between defendant’s prior drug related acts and the crimes he was charged with, the prior acts were not too remote in time, and the trial court guarded against prejudice by giving a limiting instruction. State v. Stevenson, 169 N.C. App. 797, 611 S.E.2d 206, 2005 N.C. App. LEXIS 791 (2005).

Trial court did not err in admitting the testimony of a witness that defendant had touched the witness, a minor at the time, in a sexual manner without the consent of the witness. The evidence pursuant to the balancing test of G.S. 8C-1, N.C. R. Evid. 403 was not more prejudicial than probative since there was a similarity and temporal proximity regarding that incident and the present charges against defendant. State v. Bowman, 188 N.C. App. 635, 656 S.E.2d 638, 2008 N.C. App. LEXIS 281 (2008).

Evidence of Another Child’s Death. —

Three reasons enumerated by the trial court were proper reasons to allow in the evidence of another child’s death while under defendant’s care in defendant’s trial for misdemeanor child abuse and contributing to the delinquency of a minor, and it could not be said that the ruling was so arbitrary that it was not the result of a reasoned decision; however, the State’s use of the evidence regarding the other child went beyond the purposes for which the trial court admitted the evidence and the State improperly argued that defendant had the propensity to leave young children unattended, resulting in death by drowning.

Evidence of a party’s mental or physical condition at a time remote from the execution of a document is generally not admissible, but where he has a progressive degenerative illness, evidence of his condition some years prior to and after the date of execution may be admissible to show the onset of the disorder and the gradual deterioration of the party’s mind and will. Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594, 1987 N.C. App. LEXIS 3451 (1987).

Evidence of decedent’s mental condition over a year before the critical time was admissible, and was not too remote. Caudill v. Smith, 117 N.C. App. 64, 450 S.E.2d 8, 1994 N.C. App. LEXIS 1176 (1994).

Even relevant evidence may be excluded if its probative value is outweighed by the danger that it will confuse or mislead the jury. State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154, 1985 N.C. App. LEXIS 4293 (1985).

Regardless of a statement’s relevancy, the court retains discretionary authority to exclude it if its probative value is substantially outweighed by its unfairly inflammatory effect. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

The admissibility of demonstrative or experimental evidence depends, as does any other piece of evidence, upon whether its probative value is outweighed by the potential undue prejudicial effect it may have on defendant’s case. State v. Hunt, 80 N.C. App. 190, 341 S.E.2d 350, 1986 N.C. App. LEXIS 2139 (1986).

Foundation for Courtroom Demonstration. —

In the case of a courtroom demonstration, the demonstrator may not need to be qualified as an expert in the same way as an experimenter, but a proper foundation must still be laid as to the person’s familiarity with the thing he or she is demonstrating. State v. Hunt, 80 N.C. App. 190, 341 S.E.2d 350, 1986 N.C. App. LEXIS 2139 (1986).

Evidence of Psychological Trauma. —

The trial court should balance the probative value of evidence of post-traumatic stress, or rape trauma, syndrome against its prejudicial impact under this rule. It should also determine whether admission of this evidence would be helpful to the trier of fact under Evidence Rule 702. State v. Hall, 330 N.C. 808, 412 S.E.2d 883, 1992 N.C. LEXIS 66 (1992).

In a trial on rape charges, evidence that the victim has suffered a conversion reaction may be admitted for corroborative purposes to the same extent as evidence that she has suffered from post-traumatic stress syndrome; however, admission of evidence on these two psychological phenomena constituted error where it was offered for the substantive purpose of proving that a rape did in fact occur. State v. Hall, 330 N.C. 808, 412 S.E.2d 883, 1992 N.C. LEXIS 66 (1992).

Evidence of Intent. —

Evidence of robbery of a restaurant committed by defendants one week prior to the attempted robbery in case at issue was sufficiently similar to show intent. State v. Davis, 340 N.C. 1, 455 S.E.2d 627, 1995 N.C. LEXIS 152, cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83, 1995 U.S. LEXIS 5843 (1995).

The fact that victim had in his possession videotapes which depicted violent homosexual acts had little tendency to show that the victim was the aggressor with intent to sodomize the defendant. State v. Lovin, 339 N.C. 695, 454 S.E.2d 229, 1995 N.C. LEXIS 101 (1995).

Where defendant, who was convicted of strangling his pregnant high school girlfriend testified that his action was impulsive and that he tore off the “skirt” part of the apron after the strangulation, it was proper to allow a detective, using a mannequin at trial, to demonstrate how the apron was tied around the victim’s neck as the demonstration was relevant as to whether defendant acted with premeditation and deliberation and the demonstration was not excessively inflammatory. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637, 2003 N.C. App. LEXIS 1511 (2003).

Trial court did not err in admitting song lyrics defendant wrote because in light of the similarities between the lyrics and the facts surrounding the charged offense, the lyrics were relevant to establish identity, motive, and intent, and their probative value substantially outweighed their prejudicial effect to defendant. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Rape Shield Rule Evidence. —

Trial court erred by concluding that the evidence about the complainant was inadmissible per se because it did not fall within one of the four categories in the Rape Shield Statute, and the trial court should have looked beyond the four categories to determine whether the evidence was relevant to show the complainant’s motive to falsely accuse defendant and, if so, conducted a balancing test; this error was prejudicial with respect to defendant’s conviction of the 2008 incident, as the State’s case was based almost entirely on the complainant’s testimony, but he failed to show how the error prejudiced him regarding his conviction based on the 2006 incident. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330, 2015 N.C. App. LEXIS 516 (2015).

Waiver of Objection. —

Where arresting officer’s opinion that defendant possessed marijuana was of minimal probative value since the purposes for admitting “chain of circumstances” evidence could have easily been accomplished without the arresting officer’s opinion, defendant waived any objection under this rule on appeal since defendant admitted during his direct examination the truth of the State’s allegation that he possessed marijuana at the time of his arrest. State v. Agee, 93 N.C. App. 346, 378 S.E.2d 533, 1989 N.C. App. LEXIS 215 (1989), aff'd, 326 N.C. 542, 391 S.E.2d 171, 1990 N.C. LEXIS 244 (1990).

Discretion of Trial Judge. —

Whether or not to exclude evidence under this rule is a matter within the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 340 S.E.2d 430, 1986 N.C. LEXIS 1894 (1986); State v. Penley, 318 N.C. 30, 347 S.E.2d 783, 1986 N.C. LEXIS 2580 (1986); State v. Brooks, 83 N.C. App. 179, 349 S.E.2d 630, 1986 N.C. App. LEXIS 2691 (1986); State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, 1987 N.C. App. LEXIS 2390, cert. denied, 319 N.C. 408, 354 S.E.2d 724, 1987 N.C. LEXIS 2007 (1987); State v. Frazier, 319 N.C. 388, 354 S.E.2d 475, 1987 N.C. LEXIS 1926 (1987); State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182, 1987 N.C. App. LEXIS 2607 (1987); State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987); State v. Mack, 87 N.C. App. 24, 359 S.E.2d 485, 1987 N.C. App. LEXIS 2967 (1987); State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518, 1988 N.C. LEXIS 622 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1309 (1990) (in light of) State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990); In re Eldridge, 350 N.C. 152, 513 S.E.2d 296 (1999).

Whether to exclude evidence under this rule is a matter within the sound discretion of the trial court; however, where the trial court has discretion, but erroneously fails to exercise it and rules as a matter of law, the prejudiced party is entitled to have the matter reconsidered. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277, 1987 N.C. LEXIS 1810 (1987).

Whether or not to exclude evidence under this rule because its probative value is substantially outweighed by the danger of unfair prejudice is a matter within the sound discretion of the trial judge. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Whether or not to exclude evidence under this rule is a matter within the sound discretion of the trial court, and his ruling may be reversed for an abuse of discretion only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139, 1988 N.C. App. LEXIS 310 (1988), overruled in part, State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663, 2000 N.C. LEXIS 9 (2000).

Whether evidence should be excluded under this Rule is ordinarily a decision within the trial court’s discretion. State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643, 1994 N.C. App. LEXIS 622 (1994).

Trial court’s decision to admit evidence under this rule was not to be grounds for relief on appeal unless it was manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision; in a case involving a charge that defendant performed a sex act on a minor girl, the trial court did not err in allowing the girl’s mother to testify that defendant had performed a sex act on the mother nearly 20 years before. State v. Love, 152 N.C. App. 608, 568 S.E.2d 320, 2002 N.C. App. LEXIS 971 (2002).

Whether to exclude relevant evidence under G.S. 8C-1, N.C. R. Evid. 403, is in the trial court’s discretion; the appellate court reviews the trial court’s decision for an abuse of that discretion. State v. Sims, 161 N.C. App. 183, 588 S.E.2d 55, 2003 N.C. App. LEXIS 2044 (2003).

Because the issue of whether to exclude evidence under G.S. 8C-1, N.C. R. Evid. 403 was within the sound discretion of the trial court, and the plain error standard of review did not apply to issues that fell within the realm of the trial court’s discretion, defendant’s assertion of error based on a stipulation was overruled. State v. Cunningham, 188 N.C. App. 832, 656 S.E.2d 697, 2008 N.C. App. LEXIS 260 (2008).

Trial court did not abuse its discretion by reviewing a representative portion of 562 e-mail correspondences between the parties because the court properly exercised its authority to limit the presentation of cumulative evidence. Wolgin v. Wolgin, 217 N.C. App. 278, 719 S.E.2d 196, 2011 N.C. App. LEXIS 2422 (2011).

Because plain error review is inapplicable to issues that fall within the realm of the trial court’s discretion, which include a trial court’s determination as to the admissibility of evidence based on the balancing test in this rule, defendant’s argument concerning the admissibility of the evidence was overruled. State v. Duffie, 241 N.C. App. 88, 772 S.E.2d 100, 2015 N.C. App. LEXIS 377 (2015).

Although affidavits were not actually offered into evidence, a trial court would not have abused its discretion in declining to admit the affidavits into evidence because the proponent of the evidence explicitly described the affidavits as unnecessary and cumulative and meant to bolster an earlier affidavit that had already been given to the court. In re Herndon, 245 N.C. App. 83, 781 S.E.2d 524, 2016 N.C. App. LEXIS 97 (2016).

Trial court did not abuse its discretion by disallowing defendant’s expert from testifying about the time and disguise concepts as they relate to identifications because they were common sense conclusions that would have been of little if any benefit to the jury. The procedure the trial court followed showed that it conducted its discriminatory balancing test under this section and its ruling was the result of a reasoned decision. State v. Vann, 261 N.C. App. 724, 821 S.E.2d 282, 2018 N.C. App. LEXIS 979 (2018).

The appellate court will not intervene where the trial court has properly weighed both the probative and prejudicial value of evidence and made its ruling accordingly. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 524 S.E.2d 591, 2000 N.C. App. LEXIS 52 (2000).

Standard of Review. —

When analyzing rulings applying G.S. 8C-1, N.C. R. Evid. 404(b) and 403, the North Carolina Supreme Court conducts distinct inquiries with different standards of review; when a trial court has made findings of fact and conclusions of law to support an G.S. 8C-1, N.C. R. Evid. 404(b) ruling, the Court looks to whether the evidence supports the findings and whether the findings support the conclusions, and the Court reviews de novo the legal conclusion that the evidence is, or is not, within the coverage of G.S. 8C-1, N.C. R. Evid. 404(b), after which the Court reviews the trial court’s G.S. 8C-1, N.C. R. Evid. 403 determination for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012).

Plain Error Analysis Not Required. —

Defendant did not preserve his claim of error in the balancing test under this rule and a plain error analysis was not required. State v. Garcia, 228 N.C. App. 89, 743 S.E.2d 74, 2013 N.C. App. LEXIS 670 (2013).

Plain Error Review Not Applied. —

Defendant failed to object to the introduction of certain evidence, but plain error review was not applied to issues that fell within the realm of the trial court’s discretion, and defendant’s attempt to rely on the rule was misplaced. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

Preservation for Review. —

Defendant’s appeal was dismissed where he challenged an officer’s testimony under G.S. 8C-1, N.C. R. Evid. 404 on appeal, but objected to the testimony at trial based on this rule as defendant did not object pursuant to Rule 404, his objection was not preserved on appeal, and he did not argue plain error. State v. Howard, 228 N.C. App. 103, 742 S.E.2d 858, 2013 N.C. App. LEXIS 663 (2013), aff'd, 367 N.C. 320, 754 S.E.2d 417, 2014 N.C. LEXIS 172 (2014).

Error Not Properly Preserved. —

Although defendant challenged the trial court’s decision allowing a detective to testify concerning his ongoing investigation of defendant prior to his arrest, contending that the testimony should have been excluded under G.S. 8C-1-403, defendant failed to properly object to the proffered testimony, and therefore appellate review was for plain error only under N.C. R. App. P. 10(b)(1) and (c)(4); but because defendant did not specifically and distinctly allege plain error, he was not entitled to plain error review of the issue. State v. McDougald, 181 N.C. App. 41, 638 S.E.2d 546, 2007 N.C. App. LEXIS 90 (2007), rev'd in part, 362 N.C. 224, 657 S.E.2d 351, 2008 N.C. LEXIS 136 (2008).

Trial court did not err by excluding evidence of a sexual assault victim’s allegedly delinquent child support payments as not relevant to the sexual assault trial under G.S. 8C-1, N.C. R. Evid. 403; however, defendant had abandoned his argument because he only referenced it in a heading of his brief and did not provide a reason, argument, or authority to support his claim, as required by N.C. R. App. P. 28(b)(6). State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701, 2008 N.C. App. LEXIS 431 (2008).

Defendant’s claim that certain testimony was erroneously admitted was not preserved for purposes of appeal because defendant claimed, on appeal, that the testimony was irrelevant, under G.S. 8C-1, N.C. R. Evid. 401 and 402, and that the testimony was unduly prejudicial, under G.S. 8C-1, N.C. R. Evid. 403, but defendant did not make these specific objections at trial, nor were such objections apparent from the context, under N.C. R. App. P. 10(b)(1), from which it appeared that defendant made a hearsay objection. State v. Hueto, 195 N.C. App. 67, 671 S.E.2d 62, 2009 N.C. App. LEXIS 62 (2009).

Court of appeals could not conclude that the trial court abused its discretion in admitting the nature of defendant’s prior felony conviction where the court of appeals was limited to a review for plain error; defendant stipulated that he was convicted of felony possession of cocaine, and defendant failed to preserve the issue for appeal. State v. Miles, 223 N.C. App. 160, 733 S.E.2d 572, 2012 N.C. App. LEXIS 1196 (2012).

Defendant’s relevance and hearsay arguments were not properly before the supreme court because a general objection, if overruled was no good, unless on the face of the evidence, there was no purpose whatever for which it could have been admissible, and the challenged evidence was not inadmissible for all purposes. State v. Young, 368 N.C. 188, 775 S.E.2d 291, 2015 N.C. LEXIS 687 (2015).

Claim Abandoned. —

Defendant failed to argue error under this rule in his appellate brief, and any argument pertaining to this rule was deemed abandoned. State v. Howard, 228 N.C. App. 103, 742 S.E.2d 858, 2013 N.C. App. LEXIS 663 (2013), aff'd, 367 N.C. 320, 754 S.E.2d 417, 2014 N.C. LEXIS 172 (2014).

Clearly False Statement. —

The admission of a statement that is so clearly false and that is made by a witness who is unavailable to testify or be cross-examined would be misleading to a jury. State v. Brown, 335 N.C. 477, 439 S.E.2d 589, 1994 N.C. LEXIS 9 (1994).

In a trial before a judge without a jury, it is presumed that the judge disregarded any incompetent evidence and did not draw inferences from testimony otherwise competent which would render such testimony incompetent. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, 1987 N.C. App. LEXIS 2530 (1987), cert. denied, 319 N.C. 673, 356 S.E.2d 779, 1987 N.C. LEXIS 2118 (1987), cert. denied, 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646, 1988 U.S. LEXIS 228 (1988).

Admission of expert testimony regarding memory factors is within trial court’s discretion, and appellate court will not intervene where trial court properly appraises probative and prejudicial value of evidence under G.S. 8C-1, Rule 403. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456, 1990 N.C. App. LEXIS 815 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514, 1991 N.C. LEXIS 608 (1991).

Factors Entering into Expert’s Opinion. —

Although court was not required to conduct a balancing test under this section in the sentencing proceeding, it correctly allowed admission of evidence of list of serial killers defendant possessed near the time of two murders as relevant for cross-examination of mental health expert, because jury was entitled to know to what extent, if any, these materials entered into the expert’s opinion regarding defendant’s state of mind. State v. Moses, 350 N.C. 741, 517 S.E.2d 853, 1999 N.C. LEXIS 882 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826, 2000 U.S. LEXIS 693 (2000), writ denied, 356 N.C. 442, 573 S.E.2d 160, 2002 N.C. LEXIS 1214 (2002), writ denied, 357 N.C. 510, 588 S.E.2d 380, 2003 N.C. LEXIS 1188 (2003), writ denied, 360 N.C. 652, 639 S.E.2d 57, 2006 N.C. LEXIS 1199 (2006), cert. denied, 365 N.C. 93, 706 S.E.2d 246, 2011 N.C. LEXIS 121 (2011).

Evidence of Common Malpractice Carrier. —

Trial court did not abuse its discretion by granting motion in limine which suppressed evidence that defendant and two of his expert witnesses shared a common malpractice carrier. Warren v. Jackson, 125 N.C. App. 96, 479 S.E.2d 278, 1997 N.C. App. LEXIS 4 (1997).

Terminology of Expert. —

Doctor’s use of the term “homicidal assault” was not a legal term of art, nor correlated to a criminal offense and the testimony related a proper opinion for an expert in the field of forensic pathology; thus, the trial court did not err in allowing the testimony. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158, 1996 N.C. LEXIS 512 (1996).

II.Photographs and Videotapes.

Photographs Held Relevant. —

Color autopsy photographs, although gruesome, were relevant to illustrate the testimony of the pathologist and were illustrative of testimony regarding the number and nature of the victim’s wounds and were therefore admissible. State v. Rose, 335 N.C. 301, 439 S.E.2d 518, 1994 N.C. LEXIS 7 (1994), cert. denied, 512 U.S. 1246, 114 S. Ct. 2770, 129 L. Ed. 2d 883, 1994 U.S. LEXIS 5081 (1994), overruled in part, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823, 2001 N.C. LEXIS 263 (2001).

Autopsy photographs, photographs of the victim’s car after she was shot, testimony regarding the amount of blood at the scene, and blood stained material were all properly admitted at defendant’s murder trial in accordance with G.S. 8C-1, N.C. R. Evid. 401, 402, and were not overly prejudicial in violation of G.S. 8C-1, N.C. R. Evid. 403. State v. Chapman, 359 N.C. 328, 611 S.E.2d 794, 2005 N.C. LEXIS 361 (2005).

Photographs which showed numerous gunshot wounds were relevant to show not only the cause of death, but were also relevant as a means of proving the premeditation and deliberation elements of first-degree murder. State v. Brown, 335 N.C. 477, 439 S.E.2d 589, 1994 N.C. LEXIS 9 (1994).

Photographs of the decedent admitted into evidence that were illustrative of testimony regarding the nature and number of the victim’s wounds and the condition of the body upon discovery and of the crime scene were properly admitted. State v. Williams, 341 N.C. 1, 459 S.E.2d 208, 1995 N.C. LEXIS 384 (1995), cert. denied, 516 U.S. 1128, 116 S. Ct. 945, 133 L. Ed. 2d 870, 1996 U.S. LEXIS 1181 (1996), writ denied, 762 S.E.2d 449, 2014 N.C. LEXIS 667 (2014).

The relevance of fifty-one photographs was upheld where these photographs, albeit numerous, were unique in subject matter and in detail in that they (1) depicted the exceedingly large number of wounds inflicted upon different parts of the victim’s body by various weapons, including a knife, a drill bit, a pipe, an ax head, and a limb or pruning saw, (2) depicted the condition of the body, its location, and the crime scene, (3) corroborated defendant’s confession by demonstrating that the victim was attacked in his bedroom, that he fell to the floor with his head toward the closet, that he was stabbed while on the floor, and that his neck was cut with a saw while on the floor. State v. Hyde, 352 N.C. 37, 530 S.E.2d 281, 2000 N.C. LEXIS 443 (2000), cert. denied, 531 U.S. 1114, 121 S. Ct. 862, 148 L. Ed. 2d 775, 2001 U.S. LEXIS 738 (2001), writ denied, 360 N.C. 72, 623 S.E.2d 779, 2005 N.C. LEXIS 1126 (2005).

A photograph depicting blood in victim’s grocery store, which resulted from a head injury defendant inflicted on victim when he struck him with a gun during robbery, and the accompanying testimony were relevant to support the existence of the aggravating circumstance that defendant had been previously convicted of a felony involving the use of violence to the person. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799, 2000 N.C. LEXIS 528 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780, 2001 U.S. LEXIS 783 (2001), writ denied, 359 N.C. 192, 607 S.E.2d 650, 2004 N.C. LEXIS 1212 (2004).

Admission of photos of guns found in defendant’s home in a case charging defendant with drug trafficking and possession was proper because such evidence was relevant, and because guns were often used for protection in illegal drug trade, probative value was not substantially outweighed by danger of unfair prejudice. State v. Lakey, 183 N.C. App. 652, 645 S.E.2d 159, 2007 N.C. App. LEXIS 1093 (2007).

There was no abuse of discretion in the admission under G.S. 8-97 of eight autopsy photographs in defendant’s criminal trial that arose from the murder of a victim in a gunfight, as there was an issue as to whether defendant shot the victim in self-defense and the photographs depicted the location of the wounds and illustrated the manner of the killing; the photographs were probative and any prejudicial effect under G.S. 8C-1, N.C. R. Evid. 403 was outweighed. State v. Damenon Ropmele Early, 194 N.C. App. 594, 670 S.E.2d 594, 2009 N.C. App. LEXIS 49 (2009).

Trial court did not abuse its discretion in admitting photographs of the victim’s decomposed body because the photographs were used to illustrate relevant testimony regarding an element of the crime of first-degree murder, and the victim suffered many distinct injuries to different parts of her body; the photographs were used to illustrate the testimony of the law enforcement officers who unearthed the victim’s body and the testimony of the pathologist who conducted the autopsy, and the pathologist’s testimony about the dealing of lethal blows after the victim was rendered helpless but still alive and the brutality and number of her wounds were circumstantial evidence of defendant’s premeditation and deliberation, elements of first-degree murder. State v. Bedford, 208 N.C. App. 414, 702 S.E.2d 522, 2010 N.C. App. LEXIS 2444 (2010).

In an action in which defendant appealed his conviction for first-degree murder and his death sentence, trial court did not abuse its discretion by admitting the autopsy photographs where: (1) they were relevant and probative of material facts in this case; and (2) the photos were not unnecessarily repetitive, were not unduly gruesome or inflammatory, and illustrated both the doctor’s testimony pertaining to the autopsy and corroborating statements made by defendant to the investigators. State v. Waring, 364 N.C. 443, 701 S.E.2d 615, 2010 N.C. LEXIS 915 (2010).

Trial court properly admitted a photograph because it illustrated a detective’s testimony that the victim used the photograph to identify defendant; the photograph was relevant to the victim’s identification of defendant, and it was not unduly prejudicial. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

Photographs Held Irrelevant. —

In a case involving first degree rape and other offenses, evidence regarding a police department’s evidence room was not relevant because the condition of the refrigerators had no tendency to make the existence of any fact more or less probable; moreover, the probative value was minimal, and photographs of the refrigerators might have confused the issues and misled the jury. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565, 2014 N.C. App. LEXIS 1210 (2014).

Discretion of Court. —

What represents an excessive number of photographs and whether the photographic evidence is more probative than prejudicial are matters within the sound discretion of the trial court. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158, 1996 N.C. LEXIS 512 (1996).

In defendant’s trial on charges of first-degree murder and robbery with a firearm, the trial court did not abuse its discretion by admitting photographs of the location where the victim was killed, even though those photographs depicted a cross and memorial flowers at the scene. State v. Haselden, 357 N.C. 1, 577 S.E.2d 594, 2003 N.C. LEXIS 318, cert. denied, 540 U.S. 988, 124 S. Ct. 475, 157 L. Ed. 2d 382, 2003 U.S. LEXIS 8097 (2003).

Proper Inquiry Regarding Admissibility of Photographs. —

Critical to the trial court’s inquiry into the admissibility of a photograph is the determination that it does not unduly reiterate illustrative evidence already presented. When a photograph adds nothing to the State’s case, then its probative value is nil, and nothing remains but its tendency to prejudice. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523, 1988 N.C. LEXIS 607 (1988).

What a photograph depicts, its level of detail and scale, whether it is color or black and white, a slide or a print, where and how it is projected or presented, the scope and clarity of the testimony it accompanies — these are all factors the trial court must examine in determining the illustrative value of photographic evidence and in weighing its use by the State against its tendency to prejudice the jury. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523, 1988 N.C. LEXIS 607 (1988).

The test for excess in the use of photographs is not formulaic; the trial court’s task is to examine both the content and the manner in which photographic evidence is used, and to scrutinize the totality of circumstances composing that presentation. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523, 1988 N.C. LEXIS 607 (1988).

Repetitive photographs may be introduced, even if they are gruesome or revolting, as long as they are used for illustrative purposes and are not offered solely to arouse prejudice or passion of the jury. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158, 1996 N.C. LEXIS 512 (1996).

When the use of photographs that have inflammatory potential is excessive or repetitious, the probative value of such evidence is eclipsed by its tendency to prejudice the jury. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523, 1988 N.C. LEXIS 607 (1988).

Photographs Held Not Excessive. —

Photographs of the murder victim, including one illustrating the visible wounds on the decedent’s body, were not excessive. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789, 1995 N.C. LEXIS 242 (1995).

Two photographs of a dead police officer in the emergency room were properly admitted into evidence at defendant’s trial for second-degree murder in the death of a law enforcement officer during a high speed pursuit of defendant, because the photographs were introduced during another police officer’s testimony to provide a chain of causation between the accident and the victim’s death and to illustrate the testifying officer’s observations of the state of the victim’s body; the photographs were not introduced in an excessive or repetitious manner in order to arouse the passions of the jury but, rather, were introduced to allow the State to prove the chain of causation, which was an essential element of the case. State v. Bethea, 167 N.C. App. 215, 605 S.E.2d 173, 2004 N.C. App. LEXIS 2150 (2004), cert. denied, 362 N.C. 88, 2007 N.C. LEXIS 1249 (2007).

Where a party introduces photographs for illustrative purposes and not solely to arouse prejudice or passion, they are admissible even if revolting and repetitious. State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747, 1995 N.C. LEXIS 377 (1995), cert. denied, 516 U.S. 1079, 116 S. Ct. 789, 133 L. Ed. 2d 739, 1996 U.S. LEXIS 589 (1996), writ denied in part, 343 N.C. 754, 477 S.E.2d 34, 1996 N.C. LEXIS 669 (1996).

Where defendant conceded that the autopsy photographs of the victim were used to illustrate the testimony of the medical examiner, the defendant failed to show that the photographs were unduly prejudicial or that their admission was not proper. State v. Norwood, 344 N.C. 511, 476 S.E.2d 349, 1996 N.C. LEXIS 497 (1996), cert. denied, 520 U.S. 1158, 117 S. Ct. 1341, 137 L. Ed. 2d 500, 1997 U.S. LEXIS 2160 (1997).

The admission of two photographs depicting the victim’s damaged car did not result in unfair prejudice to defendant where the court instructed the jury that the photographs were being admitted only for the purpose of illustrating the investigating trooper’s testimony; although blood was visible in both photographs, and prominent in one, the photographs were not gruesome, horrifying, or revolting. State v. Gray, 137 N.C. App. 345, 528 S.E.2d 46, 2000 N.C. App. LEXIS 324 (2000).

Videotape taken of the murder victim’s body found sitting beside a road was admissible as the videotape was offered and received solely for illustrative purposes and not to inflame the passions of the jury; furthermore, a proper foundation was laid for the admission of the videotape. State v. Smith, 152 N.C. App. 29, 566 S.E.2d 793, 2002 N.C. App. LEXIS 867, cert. denied, 356 N.C. 311, 571 S.E.2d 208, 2002 N.C. LEXIS 1011 (2002).

Defendant’s Photograph Admissible to Contradict Self-Defense Theory. —

A photograph of defendant which only illustrated his facial features and showed he looked like a “mean kind of fellow” was admissible to demonstrate that defendant was neither injured nor disheveled and to contradict defendant’s theory of self-defense. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388, 2000 N.C. App. LEXIS 1405 (2000).

Trial court did not err in allowing child sexual molestation victim to describe photos she took of defendant and her mother, even though the trial court refused to admit the photos themselves; the testimony was not significantly different than the daughter’s prior testimony about the sexual relationship between her mother and defendant. State v. Pendleton, 175 N.C. App. 230, 622 S.E.2d 708, 2005 N.C. App. LEXIS 2743 (2005).

Photographs Held Properly Admitted. —

Photographs of decedent’s body after he had been shot illustrated testimony with respect to the crime scene in general, the location and position of the body when found, and the wounds suffered by the deceased, and it was therefore within the trial court’s discretion to allow these pictures into evidence. State v. Smith, 320 N.C. 404, 358 S.E.2d 329, 1987 N.C. LEXIS 2255 (1987).

While some photographic evidence at issue was gruesome, there was no suggestion slide projections were done unfairly, there was no needless repetition of photographs and presentation of each photograph or slide was accompanied by competent testimony of witnesses, which photographic evidence illustrated; thus, trial court did not abuse its discretion in permitting photographic evidence to be used. State v. Robinson, 327 N.C. 346, 395 S.E.2d 402, 1990 N.C. LEXIS 707 (1990).

The defaced photographs of victim’s wife given to murder victim by defendant, considered with the original photographs defendant gave to the wife moments before the shooting, were important, highly probative evidence for the State. This evidence tended to show defendant’s hostility toward the victim and his bizarre preoccupation with the victim’s wife during the four months immediately before the shooting. The probative value of this evidence to show malice was not outweighed by the potential for unfair prejudice. State v. Terry, 329 N.C. 191, 404 S.E.2d 658, 1991 N.C. LEXIS 401 (1991).

Admission in murder trial of color photographs and slides picturing the victim’s body and of testimony about the condition of the body when found including the fact that it was infested with maggots, did not constitute an abuse of discretion. State v. Wynne, 329 N.C. 507, 406 S.E.2d 812, 1991 N.C. LEXIS 527 (1991); State v. Trull, 349 N.C. 428, 509 S.E.2d 178, 1998 N.C. LEXIS 852 (1998), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80, 1999 U.S. LEXIS 5255 (1999).

Where doctor who performed autopsy used one photograph showing victim’s bare breast to illustrate his testimony about the cause of death and the nature and location of the wound, the danger of redundant and excessive use of potentially inflammatory photographs was not present, and the trial court acted within its sound discretion in ruling under G.S. 8C-1, Rule 403 that the probative value of the unaltered photograph was not substantially outweighed by any prejudice. State v. Butler, 331 N.C. 227, 415 S.E.2d 719, 1992 N.C. LEXIS 206 (1992), writ denied, 559 S.E.2d 187, 2001 N.C. LEXIS 1261 (2001), writ denied, 368 N.C. 607, 780 S.E.2d 566, 2015 N.C. LEXIS 1244 (2015), writ denied, 368 N.C. 692, 781 S.E.2d 611, 2016 N.C. LEXIS 107 (2016).

Defendant failed to show that the trial court abused its discretion in denying his motion to exclude gun and photograph of gun from evidence. State v. Thompson, 332 N.C. 204, 420 S.E.2d 395, 1992 N.C. LEXIS 480 (1992).

Where photographs of a homicide victim’s body were not excessive in number and were used solely for the purpose of illustrating a medical examiner’s testimony, the trial court did not err in admitting them into evidence. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58, 1992 N.C. LEXIS 585 (1992), cert. denied, 513 U.S. 1089, 115 S. Ct. 749, 130 L. Ed. 2d 649, 1995 U.S. LEXIS 269 (1995).

Photograph of rape victim was properly admitted for the limited purpose of illustrating witness medical examiner’s testimony as to cause of death. State v. McCollum, 334 N.C. 208, 433 S.E.2d 144, 1993 N.C. LEXIS 342 (1993), cert. denied, 512 U.S. 1254, 114 S. Ct. 2784, 129 L. Ed. 2d 895, 1994 U.S. LEXIS 5089 (1994).

There was no abuse of discretion in the admission of photographs where each photograph related to material events and facts to which each identifying witness was testifying and further, the testimony of each witness whose testimony the photographs illustrated related to different aspects of the case and served different purposes. State v. Gray, 337 N.C. 772, 448 S.E.2d 794, 1994 N.C. LEXIS 576 (1994).

Photographs of defendants’ home were properly admitted for the purpose of illustrating four witnesses’ testimony. Raintree Homeowners Ass'n v. Bleimann, 116 N.C. App. 561, 449 S.E.2d 13, 1994 N.C. App. LEXIS 1072 (1994), rev'd, 342 N.C. 159, 463 S.E.2d 72, 1995 N.C. LEXIS 553 (1995).

Photographs which depicted the victim’s fatal wound may have been prejudicial to the defendant, but they were not unfairly so. They were not excessive in number, repetitious or peculiarly gruesome, were properly used to illustrate the testimony of deputy sheriff, and as such, their admission by the trial court did not amount to an abuse of discretion. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479, 1994 N.C. LEXIS 702 (1994).

Where there was no evidence that photograph was used solely to arouse the passions of the jury but was used to illustrate testimony concerning defendant’s possession and control of the murder weapon, because the photograph had probative value and there was minimal potential for any unfair prejudice, the trial court did not abuse its discretion; this assignment of error was overruled. State v. Thibodeaux, 341 N.C. 53, 459 S.E.2d 501, 1995 N.C. LEXIS 399 (1995).

Admission of photo was not error where the photograph was used for illustrative purposes during nephew’s testimony to describe his aunt and uncle while alive. State v. Goode, 341 N.C. 513, 461 S.E.2d 631, 1995 N.C. LEXIS 415 (1995).

Videotape and photographs of crime scene and autopsy photographs of child who had been brutally raped and murdered were properly admitted. State v. Kandies, 342 N.C. 419, 467 S.E.2d 67, 1996 N.C. LEXIS 16, cert. denied, 519 U.S. 894, 117 S. Ct. 237, 136 L. Ed. 2d 167, 1996 U.S. LEXIS 5859 (1996).

The State may introduce photographs into evidence although the defendant stipulates the cause of death. State v. French, 342 N.C. 863, 467 S.E.2d 412, 1996 N.C. LEXIS 130 (1996).

The probative value of the gruesome photographs outweighed the prejudice where they were used to show the circumstances of the killing and to establish the extent of the victim’s head wound. State v. Ocasio, 344 N.C. 568, 476 S.E.2d 281, 1996 N.C. LEXIS 504 (1996), writ denied, 683 S.E.2d 383, 2009 N.C. LEXIS 836 (2009).

Seven photographs of the victim were properly admitted where they were used during the testimony of a police officer to show the location, position, and condition of the body when it was discovered and used to illustrate a pathologist’s testimony. State v. Warren, 348 N.C. 80, 499 S.E.2d 431, 1998 N.C. LEXIS 216 (1998), cert. denied, 525 U.S. 915, 119 S. Ct. 263, 142 L. Ed. 2d 216, 1998 U.S. LEXIS 6278 (1998), writ denied, 359 N.C. 286, 610 S.E.2d 714, 2005 N.C. LEXIS 31 (2005).

Photographs of the victims’ bodies at the crime scene, and the victims’ bodies during autopsy were admissible in a prosecution for aiding and abetting first-degree murder, since the photographs depicted the condition and location of the bodies at the time they were found or showed a unique perspective or contained unique details or subject matter. State v. Goode, 350 N.C. 247, 512 S.E.2d 414, 1999 N.C. LEXIS 238 (1999).

Court properly allowed photographs of victims before and after their deaths where it gave due consideration to counsel’s objection and arguments and found the photos relevant, not repetitive, and no more gruesome than photos from other murders of the same nature, and where the probative value of the photos outweighed the danger of any prejudice to the defendant. State v. Morganherring, 350 N.C. 701, 517 S.E.2d 622, 1999 N.C. LEXIS 881 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 322, 2000 U.S. LEXIS 1998 (2000).

Photographs of defendant’s victims were not too gory or gruesome to show to the jury. State v. Williams, 355 N.C. 501, 565 S.E.2d 609, 2002 N.C. LEXIS 538 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808, 2003 U.S. LEXIS 128 (2003).

Photographs of two murder victims were properly admitted into evidence where they were not excessively gruesome and were used to identify one of the victims and to indicate the relative location of the victims to each other. State v. Walters, 357 N.C. 68, 588 S.E.2d 344, 2003 N.C. LEXIS 570, cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320, 2003 U.S. LEXIS 7795 (2003).

Trial court did not err in ruling that 10 autopsy photos of the murder victim were more probative than prejudicial and in allowing admission of them into evidence. State v. Gladden, 168 N.C. App. 548, 608 S.E.2d 93, 2005 N.C. App. LEXIS 351 (2005).

Trial court’s ruling admitting enlarged autopsy photographs that were projected onto a screen was proper for the purpose of illustrating the extent of the victim’s wounds; thus, the probative value of the photographs outweighed any potential unfair prejudice due to the nature of the photographs. State v. Snider, 168 N.C. App. 701, 609 S.E.2d 231, 2005 N.C. App. LEXIS 395 (2005).

Two photographs of defendant’s foster daughters were not unduly prejudicial where they were not necessarily sexually suggestive as alleged by defendant but could have been viewed as relatively benign. State v. Whitman, 179 N.C. App. 657, 635 S.E.2d 906, 2006 N.C. App. LEXIS 2167 (2006).

In an action in which defendants appealed from a judgment of the Wayne County Court, which convicted defendants of first degree murder, the State had shown that inflaming the jury was not the sole purpose of the evidence; the photographic evidence introduced was offered to illustrate its witnesses’ testimony. State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36, 2006 N.C. App. LEXIS 2517 (2006), aff'd, 361 N.C. 584, 650 S.E.2d 594, 2007 N.C. LEXIS 1011 (2007).

Photographs of victim’s frontal injuries were not cumulative or excessive, as other photographs shown were of the crime scene and defendant while defendant was lying face down in the position in which officers found defendant; thus, they showed a different view of the body, a different injury inflicted, and different pieces of evidence found around the body. State v. Bowman, 183 N.C. App. 631, 644 S.E.2d 596, 2007 N.C. App. LEXIS 1099 (2007).

In a trial in which the State sought to show that defendant pressured her daughter to shoot defendant’s husband so that defendant could be with a boyfriend she met at a swingers party, the admission of sexually suggestive photographs of defendant and the boyfriend was proper under G.S. 8C-1-401, G.S. 8C-1-403, and G.S. 8C-1-404(b) because the photographs corroborated the existence of a sexual relationship between defendant and the boyfriend, the photographs illustrated the chain of events leading up to the murder, and the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516, 2007 N.C. App. LEXIS 687 (2007).

Trial court did not abuse its discretion by overruling defendant’s objection to the admission of photographs showing the murder victim’s dismembered and decomposed body, where the photographs were introduced to illustrate the testimony by a special agent about the condition of victim’s body, having exposed bone and being in a state of mummification, when it was discovered. State v. Bare, 194 N.C. App. 359, 669 S.E.2d 882, 2008 N.C. App. LEXIS 2238 (2008).

In a case in which defendant was convicted for both first and second degree murder, he unsuccessfully argued on appeal that the trial court erred in allowing the State to introduce into evidence four photographs of the deceased victims at the crime scene because, according to defendant, the photographs were unnecessarily gruesome and carried no probative value. The State made use of the photographs in conjunction with testimony for illustrative purposes only, and the photographs were not used to inflame the jury’s passions. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539, 2009 N.C. App. LEXIS 2252 (2009), writ denied, 377 N.C. 557, 857 S.E.2d 531, 2021 N.C. LEXIS 508 (2021).

Photograph of defendant with a gun that looked like the one defendant had in defendant’s possession on the day crimes were committed was properly admitted under G.S. 8C-1, N.C. R. Evid. 403, as its probative value outweighed any prejudicial effect. State v. Stevenson, 211 N.C. App. 583, 710 S.E.2d 304, 2011 N.C. App. LEXIS 902 (2011).

Trial court did not abuse its discretion in admitting photographs into evidence to illustrate witness testimony concerning the crime scene, the victims’ locations, or the injuries sustained by each victim. State v. Stewart, 231 N.C. App. 134, 750 S.E.2d 875, 2013 N.C. App. LEXIS 1234 (2013), writ denied, 371 N.C. 458, 814 S.E.2d 109, 2018 N.C. LEXIS 477 (2018), writ denied, 374 N.C. 268, 838 S.E.2d 463, 2020 N.C. LEXIS 214 (2020).

Because the photographs of defendant and his tattoos taken at the jail after his arrest did not clearly show defendant in jail garb or in handcuffs, and the trial court specifically found that it was unable to determine from the pictures of defendant that they were taken in a jail, the admission of the pictures was not unfairly prejudicial. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478, 2014 N.C. App. LEXIS 238 (2014).

Even to the extent that a juror could have deduced that the pictures of defendant and his tattoos were taken in a jail, the trial court did not abuse its discretion in determining that the unfair prejudice did not substantially outweigh the probative value of the photographs and did not err in admitting the photographs of defendant because it is common knowledge that defendants charged with armed robbery are often arrested and that when people are arrested they are taken to jail. State v. Carpenter, 232 N.C. App. 637, 754 S.E.2d 478, 2014 N.C. App. LEXIS 238 (2014).

Trial court provided a limiting instruction to the jury explaining that photographs were only allowed for the purpose of illustrating an officer’s testimony; thus, the defendant did not show any unfair prejudice from the jury’s viewing of the photographs. State v. Moultry, 246 N.C. App. 702, 784 S.E.2d 572, 2016 N.C. App. LEXIS 342 (2016).

Trial court did not err in allowing the State of North Carolina to introduce several crime scene photographs into evidence at defendant’s trial for murder, assault with a deadly weapon, and attempted murder because the admission of each photograph — of the victim as found at the crime scene and of the autopsy — was a thoroughly reasoned decision. Furthermore, defendant was unable to show that the admission of the photographs, cumulatively, was prejudicial because of the other overwhelming evidence of defendant’s guilt. State v. Canady, 267 N.C. App. 310, 833 S.E.2d 215, 2019 N.C. App. LEXIS 714 (2019).

Photographs and videotape were properly admitted where each photograph at issue illustrated, in some unique respect, the manner in which the victim was killed, including depiction of electrical wire used to bind the victim at the wrists, knees, and ankles, and the videotape uniquely depicted the condition and location of the victim’s body in the context of the crime scene; both illustrated witness testimony. State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799, 2000 N.C. LEXIS 528 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780, 2001 U.S. LEXIS 783 (2001), writ denied, 359 N.C. 192, 607 S.E.2d 650, 2004 N.C. LEXIS 1212 (2004).

Admission of Photographs Held Error. —

The admission into evidence of 26 photographs taken at the victims’ autopsies which added nothing to the State’s case as already delineated in crime scene slides and their accompanying testimony, was error; given the absence of additional probative value, these photographs—grotesque and macabre in and of themselves—had potential only for inflaming the jurors. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523, 1988 N.C. LEXIS 607 (1988).

The prejudicial effect of photographs used repetitiously in a murder case was compounded by the manner in which the photographs were presented, where an unusually large screen was erected on a wall directly over defendant’s head such that the jury would continually have him in its vision as it viewed the slides. This was a manner of presentation that in itself quite probably enhanced the prejudicial impact of the slides themselves. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523, 1988 N.C. LEXIS 607 (1988).

Trial court erred by admitting two photographs, as substantive evidence, when a police detective was not able to authenticate the two photographs as depicting defendant’s sons, because the photographs did not have any tendency to make the existence of any fact of consequence more probable or less probable than it would have been without the photographs. State v. Murray, 229 N.C. App. 285, 746 S.E.2d 452, 2013 N.C. App. LEXIS 882 (2013).

Although the trial court may have abused its discretion in defendant’s trial for misdemeanor stalking by admitting into evidence photographs of firearms, ammunition, and surveillance equipment found throughout defendant’s home, all of which defendant legally possessed at the time the search warrant was executed, defendant received a fair trial, free from prejudicial error, because of the overwhelming additional evidence presented at trial. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397, 2018 N.C. App. LEXIS 808 (2018).

Admittance of Videotape Recordings. —

The basic principles governing the admissibility of photographs apply also to motion pictures. Videotape recordings may be admitted into evidence where they are relevant and have been properly authenticated. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707, 1991 N.C. App. LEXIS 1069 (1991).

Condensed videotape which included footage of a body being turned over, placed in a body bag and on a stretcher, then transported to elevator for removal was relevant to illustrate the crime scene prior to the arrival of medical personnel and was neither excessive nor cumulative evidence. State v. Leazer, 337 N.C. 454, 446 S.E.2d 54, 1994 N.C. LEXIS 429 (1994).

A relevant videotape may be played for a jury even if gory and gruesome if not used solely to arouse the passions of the jury. State v. French, 342 N.C. 863, 467 S.E.2d 412, 1996 N.C. LEXIS 130 (1996).

A videotape of capital murder defendant’s stepdaughter made 49 days before her death was properly admitted, where the videotape of the two-year-old, thirty pound victim was probative of the State’s case to show why it would be especially heinous, atrocious, or cruel for a man as large and powerful as defendant to murder the child with his hands while she was in his care. State v. Flippen, 349 N.C. 264, 506 S.E.2d 702, 1998 N.C. LEXIS 718 (1998), cert. denied, 526 U.S. 1135, 119 S. Ct. 1813, 143 L. Ed. 2d 1015, 1999 U.S. LEXIS 3527 (1999), writ denied, 636 S.E.2d 186, 2006 N.C. LEXIS 850 (2006), writ denied, 635 S.E.2d 592, 2006 N.C. LEXIS 847 (2006).

Where defendant was accused of inviting teenage girls to his home, giving them alcohol and drugs, and encouraging them to undress as he photographed them, the trial court did not err in allowing portions of a 17 year old videotape of defendant engaging in sexual activity with a minor to be played for the jury, as the probative value of the videotape was not outweighed by the prejudicial effect upon defendant. State v. Patterson, 149 N.C. App. 354, 561 S.E.2d 321, 2002 N.C. App. LEXIS 215 (2002).

Videotape of the crime scene was properly admitted into evidence, as it provided a unique perspective into the layout of the area in question that still photographs admitted into evidence did not depict; the record reflected that the videotape was not used excessively or solely to inflame the passions and prejudices of the jury against defendant, and in light of the distinctive perspective that the videotape afforded and the limiting instruction given by the trial court its admission was not an abuse of discretion. State v. Roache, 358 N.C. 243, 595 S.E.2d 381, 2004 N.C. LEXIS 340 (2004).

Defendant’s conviction of robbery with a firearm was proper; the State set a proper foundation for the admission of a videotape of the robbery under G.S. 8-97 by presenting testimony that the tape came from a store security camera, and had been in police custody and had not been altered, and the probative value of the videotape was not outweighed by any undue prejudice under G.S. 8C-1, N.C. R. Evid. 403. State v. Ayscue, 169 N.C. App. 548, 610 S.E.2d 389, 2005 N.C. App. LEXIS 677 (2005).

Admission of videos did not violate G.S. 8C-1, N.C. R. Evid. 403, since the portions of the tape that defendant contended were inflammatory were not shown at trial. State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366, 2005 N.C. App. LEXIS 998 (2005).

Video of Surgical Procedure Properly Admitted. —

Trial court properly admitted a video into evidence and instructed the jury on the issues at trial because an expert established that the video was a fair and accurate representation of the surgical procedure he was describing and did not create a risk of potential prejudice or confusion, allowing defense counsel to refer to a nurse anesthetist by his first was within the trial court’s discretion in managing the trial proceeding, the jury properly was instructed both on the issues it must decide and on the legal responsibility of the nurse and hospital respectively, and the trial court’s re-instruction did not create any contradiction or confusion. Connette v. Charlotte-Mecklenburg Hosp. Auth., 272 N.C. App. 1, 845 S.E.2d 168, 2020 N.C. App. LEXIS 467 (2020).

Failure to View Videotape Prior to Admission. —

Trial court did not violate G.S. 8C-1, N.C. R. Evid. 403 by failing to view the DVD recording of defendant’s police interview before ruling on its admissibility as the trial court made its ruling on admissibility based on forecasts provided by both parties as to what was contained in the DVD. Given that the trial court gave a limiting instruction with regard to the evidence in dispute, it followed that it recognized the potential for prejudice and exercised its discretion in permitting its introduction. State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546, 2009 N.C. App. LEXIS 805 (2009).

Inability to View Lost Videotape. —

That jurors were unable to view a lost videotape did not, per se, result in a violation of G.S. 8C-1, Rule 403; G.S. 8C-1, Rule 1004 permits admissibility of secondary evidence where the original is lost or destroyed. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790, 2005 N.C. App. LEXIS 2031 (2005).

Statements of Defendant on Videotape. —

If a videotape contains incriminating statements by the defendant, upon his objection, the judge must conduct a voir dire to determine the admissibility of any in-custody statements or admissions in the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707, 1991 N.C. App. LEXIS 1069 (1991).

Sequence of Events Video. —

Admission of videotape showing the sequence of events at issue in the defendant’s murder trial, even if shown in slow motion, was not an abuse of discretion because of the videotape’s probative value. State v. Brewington, 343 N.C. 448, 471 S.E.2d 398, 1996 N.C. LEXIS 341 (1996).

Conduct of Defendant on Videotape. —

Where a videotape depicts conduct of a defendant in a criminal case, the trial judge should grant a request from the defense to preview the tape. State v. Billings, 104 N.C. App. 362, 409 S.E.2d 707, 1991 N.C. App. LEXIS 1069 (1991).

Compact disc presentation on shaken baby syndrome, used to illustrate the State’s expert’s testimony on the manner in which shaking an infant causes the severity of injuries sustained in the typical shaken baby syndrome case, was not unduly prejudicial to defendant accused of felony murder for shaking a child; the trial court limited the jury’s consideration of the video to its use as illustrative evidence only. State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47, 2002 N.C. App. LEXIS 280 (2002).

Motion Pictures. —

The principles that govern the admissibility of photographs apply to motion pictures as well. State v. French, 342 N.C. 863, 467 S.E.2d 412, 1996 N.C. LEXIS 130 (1996).

III.Prejudicial Evidence, Evidence Excluded Based on Confusion, Etc.

Analysis Under This Section Necessary to Determine Admissibility. —

Trial court’s determination that the victim’s prior allegations and inconsistent statements were covered by this rule was error, as although the statements involved the mention of sexual behavior, they were not with the purview of this rule and may have been admissible to attack the victim’s credibility if they were not more prejudicial than probative under G.S. 8C-1, N.C. R. Evid. 403. State v. Rorie, 242 N.C. App. 655, 776 S.E.2d 338, 2015 N.C. App. LEXIS 695 (2015).

Refusal to Exclude Evidence of Other Killings Held Prejudicial. —

In trial for murder of defendant’s husband, rulings of the trial judge denying defendant’s motion in limine to exclude evidence implicating her in other killings was held to have impermissibly chilled her right to testify in her own defense. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600, 1988 N.C. LEXIS 227 (1988).

While the trial court properly admitted evidence of a subsequent murder to show a common plan or design, the cumulative effect of the trial court’s errors deprived defendant of a fair trial where there was a distinct risk that the jury might have been led to convict based on evidence of an offense not then before it, allowed the second victim’s sister to testify about that victim’s good character, which evidence was irrelevant to the crime charged, and allowed the prosecution to argue that defense counsel had in effect suborned perjury when, whether or not defendant committed perjury, there was no evidence that he had done so at his attorneys’ behest. State v. Hembree, 368 N.C. 2, 770 S.E.2d 77, 2015 N.C. LEXIS 265 (2015).

Evidence of One Murder in Support of Another. —

The defendant failed to show that the trial court abused its discretion in permitting evidence of one murder to show opportunity and identity in support of another murder. State v. Moses, 350 N.C. 741, 517 S.E.2d 853, 1999 N.C. LEXIS 882 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826, 2000 U.S. LEXIS 693 (2000), writ denied, 356 N.C. 442, 573 S.E.2d 160, 2002 N.C. LEXIS 1214 (2002), writ denied, 357 N.C. 510, 588 S.E.2d 380, 2003 N.C. LEXIS 1188 (2003), writ denied, 360 N.C. 652, 639 S.E.2d 57, 2006 N.C. LEXIS 1199 (2006), cert. denied, 365 N.C. 93, 706 S.E.2d 246, 2011 N.C. LEXIS 121 (2011).

Gang-Related Testimony Prejudicial. —

Trial court erred in allowing gang-related testimony because it had no tendency to make any fact of consequence more likely than not. and in addition to being irrelevant, the extensive gang-related testimony carried the danger of unfair prejudice that substantially outweighed its non-existent probative value; the admission of the testimony constituted plain error because it had a probable impact on the jury’s finding that defendant was guilty. State v. Hinton, 226 N.C. App. 108, 738 S.E.2d 241, 2013 N.C. App. LEXIS 275 (2013).

Evidence of Offense for Which Defendant Acquitted Not Admissible. —

The State may not introduce in a subsequent criminal trial evidence of a prior alleged offense for which defendant had been tried and acquitted in an earlier trial. Where the probative value of such evidence depends upon defendant’s having in fact committed the prior alleged offense, his acquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant. State v. Scott, 331 N.C. 39, 413 S.E.2d 787, 1992 N.C. LEXIS 198 (1992).

In requiring the exclusion of evidence otherwise admissible pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) under G.S. 8C-1, N.C. R. Evid. 403, where the probative value of such evidence depends upon defendant’s having in fact committed the prior alleged offense, his acquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant; such evidence is thus barred by N.C. R. Evid. 403. This does not bar the admission of testimony relating to other bad acts for which the defendant was acquitted if the other bad acts and the crime charged were part of a single continuous transaction. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354, 2009 N.C. App. LEXIS 1389 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738, 2010 N.C. LEXIS 424 (2010).

Trial court erred by admitting evidence seized at the time of his February 10, 2005, arrest for alleged violations of the controlled substance laws similar to those under consideration in the instant case and defendant was entitled to a new trial in the cases with which he was charged with prescription drug-related offenses; each of the reasons listed by the trial court as justifications for the admission of the disputed evidence hinged upon a determination that defendant actually committed an offense for which he was later acquitted. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354, 2009 N.C. App. LEXIS 1389 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738, 2010 N.C. LEXIS 424 (2010).

Evidence Improperly Admitted. —

In prosecution charging defendant with being an accessory before the fact to second degree murder, where the real effect of questions about devil worship, satanic bibles, graveyard seances, and the like could only have been to arouse the passion and prejudice of the jury, and where relative veracity of the State’s two accomplice witnesses and the defendant was critical, the trial court committed reversible error in permitting the district attorney, over objection, to ask defendant questions about devil worshipping activities. State v. Kimbrell, 320 N.C. 762, 360 S.E.2d 691, 1987 N.C. LEXIS 2411 (1987).

It was reversible error for the trial court to allow extrinsic evidence of prior inconsistent statements to impeach defense witness’ testimony when that testimony concerned matters collateral to the issues in the case (what he did or did not tell his parole officer), and had that evidence not been erroneously admitted there was a reasonable possibility of a different result. See State v. Williams, 322 N.C. 452, 368 S.E.2d 624, 1988 N.C. LEXIS 361 (1988).

There can be no question that prejudice resulted from the testimony that defendant had returned to witness’s motel room three hours after the murder occurred with “mud or grass” stains on the knees of his pants, and that he was “very nervous and upset” and wanted to “get drunk” and did so, and the prejudicial effect of this testimony far outweighed the need to show witness to be less than credible (especially where the remainder of her testimony included little of value in the state’s case) or the need to bolster officer’s credibility. State v. Hunt, 324 N.C. 343, 378 S.E.2d 754, 1989 N.C. LEXIS 252 (1989), aff'd, 339 N.C. 622, 457 S.E.2d 276, 1994 N.C. LEXIS 717 (1994).

In a first-degree murder case evidence that insulation particles in defendant’s clothing had apparently come from the attic used to gain access to the victim’s apartment did not prove that he killed her, but was relevant to the State’s case since evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue, and certainly a fact of consequence was the presence of fiber on the defendant’s clothing consistent with that found in the victim’s apartment. State v. Crandell, 322 N.C. 487, 369 S.E.2d 579, 1988 N.C. LEXIS 471 (1988).

Evidence that approximately two weeks before he killed victim the defendant threatened to kill him, or to kill a group of which he was a member, was relevant and admissible as evidence tending to show premeditation and deliberation and to negate self-defense. State v. Groves, 324 N.C. 360, 378 S.E.2d 763, 1989 N.C. LEXIS 250 (1989).

Where defendant was accused of sexually abusing his 14-year-old adopted daughter, the trial court erred in admitting testimony of alleged prior bad acts committed by defendant; namely, defendant’s alleged frequent nudity, his alleged frequent fondling of himself, and an adulterous affair in which he was allegedly involved, as under the circumstances of this case, the admission of such evidence was highly prejudicial and of questionable relevance. State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553, 1989 N.C. App. LEXIS 936 (1989).

Because doctor explicitly implicated defendant in her testimony regarding post traumatic stress disorder, the effects of alleged sexual assault on victim, and because doctor specifically named defendant twice and repeatedly implicated defendant as “friend” who caused victim’s post traumatic stress disorder by unexpected and “unjust” attack, probative value of doctor’s testimony was outweighed by danger of unfair prejudice. Therefore its admission violated this rule. This testimony not only directly implicated defendant, but also encouraged jury’s outrage about injustice of defendant’s alleged act. State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, 1990 N.C. App. LEXIS 826 (1990).

The trial court erred in allowing the State to cross-examine defendant charged with a sexual offense in the first degree concerning the following items on cross-examination: photographs, a dildo, a catalogue of condoms, lubricant, and two books entitled “Sexual Intercourse” and “The Sex Book,” all of which were found in his home. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

The probative value of defendant’s convictions in 1986 was substantially outweighed by the potential for prejudice; and the convictions should have been excluded under this rule upon defendant’s motion in limine and his objection at trial. State v. Coffey, 336 N.C. 412, 444 S.E.2d 431, 1994 N.C. LEXIS 286 (1994).

The appellate court agreed with 14-year-old defendant that allegations of a subsequent sexual assault on a four-year-old were not admissible since the incident was not sufficiently similar to the one at issue involving a nine-year-old; the admission of such evidence tended only to show the propensity of the defendant to commit sexual acts against young female children, an improper purpose, and therefore entitled defendant to a new trial. State v. White, 135 N.C. App. 349, 520 S.E.2d 70, 1999 N.C. App. LEXIS 1052 (1999).

Although the trial court properly admitted a police officer’s testimony about the underlying facts of defendant’s prior 1995 conviction for assault inflicting serious injury, the trial court committed reversible error by admitting the state’s exhibit of a copy of defendant’s criminal conviction for that assault because admitting the bare fact of a non-testifying defendant’s prior conviction after testimony had been elicited to establish the factual basis underlying that conviction violated G.S. 8C-1, N.C. R. Evid. 404(b), and 403; the bare fact of the prior conviction was inherently prejudicial. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).

Admission of evidence that defendant hid from police under a pile of clothing was not an abuse of discretion because it showed defendant’s guilty conscience, and thus was probative as circumstantial evidence of guilt and not unduly prejudicial. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615, 2007 N.C. App. LEXIS 1162 (2007).

In defendant’s indecent liberties with a child case, the court erred by admitting evidence that defendant sexually assaulted a four-year-old boy 18 years before because there was no evidence of an ongoing pattern of crimes between the 1990 offense and the instant case, but only the single prior conviction for an offense over 18 years old. State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477, 2011 N.C. App. LEXIS 602 (2011).

Defendant was prejudiced by the erroneous introduction of evidence regarding an interrogation of an unavailable individual who accused defendant of raping her at knife point nine years earlier, because the error in admission was not harmless where the State’s evidence against defendant was not overwhelming and the State provided a skewed view of the previous encounter by not presenting evidence that the declarant might have been acting as a prostitute at the time of the prior incident. State v. Glenn, 220 N.C. App. 23, 725 S.E.2d 58, 2012 N.C. App. LEXIS 518 (2012).

Trial court did not abuse its discretion in declining to exclude a line of questioning related to whether the surgeon was using pain medication in the period of time leading up to and during the surgery where the extent to which the medications may have caused the surgeon to experience confusion and impairment of cognitive function at a later point in time was relevant to whether those admittedly appreciable side effects occurred prior to and during the surgery. Nicholson v. Thom, 236 N.C. App. 308, 763 S.E.2d 772, 2014 N.C. App. LEXIS 1005 (2014).

Trial court did not abuse its discretion in a private condemnation action by granting the property owner’s motion for a new trial because it was error for the court to have allowed a natural gas company, which sought easements across the owner’s property, to cross-examine the owner about the sales price of a nearby property. Although the owner could have been asked whether the owner was familiar with the sales price of other properties in the vicinity, it was error to allow cross-examination on the purported sales price of the nearby property. Piedmont Natural Gas Co. v. Kinlaw, 258 N.C. App. 481, 813 S.E.2d 642, 2018 N.C. App. LEXIS 295 (2018).

Evidence Properly Excluded. —

In an action against an insurer in which plaintiff sought to recover the cost of chiropractic services rendered to her and her two minor children as a result of injuries sustained in an automobile collision, where plaintiff testified to the extent and type of damage to her automobile as a result of the collision, the court, in the exercise of its discretion under this rule, could properly exclude the automobile repair bill by which plaintiff sought to corroborate her testimony, as this evidence was cumulative and its probative value was weak, and moreover, the potential for confusion of issues by its admission was clear. Brown v. Allstate Ins. Co., 76 N.C. App. 671, 334 S.E.2d 89, 1985 N.C. App. LEXIS 3920 (1985).

For case in which exclusion of expert testimony of a professor of psychology, by whom defendant had sought to provide expert evidence on memory variables affecting eyewitness identification, but who had not interviewed the victim, was upheld, see State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154, 1985 N.C. App. LEXIS 4293 (1985).

Where the trial court’s rulings which excluded some testimony about slander plaintiff’s background excluded only a small portion of the evidence presented by defendants concerning plaintiff’s background, the trial court properly exercised its discretion under this rule excluding the testimony because its probative value was substantially outweighed by a danger of unfair prejudice. Raymond U v. Duke Univ., 91 N.C. App. 171, 371 S.E.2d 701, 1988 N.C. App. LEXIS 809 (1988).

The evidence defendant sought to introduce in his trial for first-degree sexual offense of his two daughters, which primarily involved his marital dispute over their property would only have muddled the evidence worthy of the jury’s consideration, and the trial court committed no error in precluding the introduction of evidence regarding defendant’s theory that the victim’s mother devised this scheme for her financial benefit. State v. Knight, 93 N.C. App. 460, 378 S.E.2d 424, 1989 N.C. App. LEXIS 207 (1989).

In paternity action, trial court did not err by excluding the child’s birth certificate in which the name of the father was left blank. The absence of a named father on the birth certificate had little probative value and was misleading because, under G.S. 130A-101(f), the name of the father of an illegitimate child may not be entered on the child’s birth certificate without the father’s sworn consent. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, 1991 N.C. App. LEXIS 305 (1991).

The trial court did not err by excluding hospital records which purported to show that the mother, a father and child were “bonding”; the hospital records had little probative value and were misleading because no evidence was presented identifying the male person who could have been a relative or friend. State v. McInnis, 102 N.C. App. 338, 401 S.E.2d 774, 1991 N.C. App. LEXIS 305 (1991).

Because the document was remote in time, failed to specify to whom the document was referring, and failed to show a definite susceptibility of propounder to influence testatrix, its probative value was substantially outweighed by its danger of prejudice, and the trial court properly exercised its discretion in excluding the evidence. In re Will of Prince, 109 N.C. App. 58, 425 S.E.2d 711, 1993 N.C. App. LEXIS 192 (1993).

Where officer saw two small bottles of liquor in a purse but had no reason to believe that alcohol consumption contributed to car accident, the probative value of this evidence was outweighed by its prejudicial potential. Browning v. Carolina Power & Light Co., 114 N.C. App. 229, 441 S.E.2d 607, 1994 N.C. App. LEXIS 317 (1994), aff'd, 340 N.C. 254, 456 S.E.2d 307, 1995 N.C. LEXIS 238 (1995).

Trial court acted within its sound discretion as required by this rule and properly excluded testimony of three defense witnesses regarding defendant/wife’s claims of domestic violence and mysogynistic behavior of husband. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, 1999 N.C. App. LEXIS 620 (1999).

The trial court made a meticulous effort to perform the balancing test pursuant to this rule while redacting statements from defendant’s interview and did not abuse its discretion in doing so; while the court redacted statements which contain the child-victim’s observations about sexual activity around her home and which the defendant claimed might have been relevant in determining why she made certain statements involving him, the trial court also carefully excluded from the jury’s consideration statements by defendant regarding his murder conviction in the State of Tennessee and his sexual relationship with his half-sister. State v. Campbell, 142 N.C. App. 145, 541 S.E.2d 803, 2001 N.C. App. LEXIS 36 (2001).

The trial court properly refused to permit plaintiff to offer insurer’s original answer, admitting liability as evidence to contradict its amended answer denying liability, where the probative value of the answers was substantially outweighed by the danger of prejudice and confusion of the issues by the jury. Warren v. GMC, 142 N.C. App. 316, 542 S.E.2d 317, 2001 N.C. App. LEXIS 80 (2001).

Trial court properly excluded from the defendant’s murder trial the testimony of a man whom the victim had shot earlier because that man admitted that he was the aggressor in the shooting incident, whereas, the defendant was claiming at his trial that the victim was the aggressor in the shooting; thus, the trial court did not abuse its discretion in excluding the testimony because the testimony was not relevant to the victim’s aggressiveness or propensity for violence as pertaining to the defendant. State v. Nance, 157 N.C. App. 434, 579 S.E.2d 456, 2003 N.C. App. LEXIS 750 (2003).

Trial court did not err in holding that evidence of defendant’s prior conviction for driving while impaired was of little probative value because the evidence of the prior conviction in an unrelated matter was highly prejudicial in nature. Headley v. Williams, 162 N.C. App. 300, 590 S.E.2d 443, 2004 N.C. App. LEXIS 131 (2004).

In a cardiologist’s action for breach of an employment contract, though testimony from another doctor regarding what the employers said in regard to that doctor’s contract was admissible as an admission by a party opponent under G.S. 8C-1, N.C. R. Evid. 801(d), the trial court did not abuse its discretion in excluding the evidence as misleading since the jury might impermissibly have found that the employer breached the contract with the cardiologist based purely on the evidence of the employer’s possible breach of a contract with the other doctor. Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286, 2005 N.C. App. LEXIS 150 (2005).

Trial court did not abuse its discretion by excluding the statements of defendant’s psychiatrist as to the basis for her opinion that defendant could not form the requisite state of mind for murder; the court found that the statements, although relevant to show the basis for her expert opinion, were likely to confuse the jury due to the danger of the statements prejudicing, confusing, or misleading the jury and thus outweighing the statements’ probative value. State v. Smith, 359 N.C. 199, 607 S.E.2d 607, 2005 N.C. LEXIS 28, cert. denied, 546 U.S. 850, 126 S. Ct. 109, 163 L. Ed. 2d 121, 2005 U.S. LEXIS 6884 (2005).

Where defendant, after resting defendant’s case, moved to reopen the evidence to allow a child witness to rebut defendant’s son’s testimony that the victim had a bad bicycle wreck, corroborating defendant’s story as to why the victim’s buttocks were bruised, the trial court did not abuse its discretion under G.S. 15A-1226(b) in denying the motion; the trial court was permitted to exclude the testimony on grounds of undue delay, waste of time, or needless presentation of cumulative evidence under G.S. 8C-1-403, as defendant could have asked defendant’s son before trial whether anyone else had seen the victim wreck on the bicycle and could have cross-examined the son about this, and the child’s testimony was cumulative and would have only possibly served to corroborate defendant’s testimony or facts brought to the jury’s attention during the son’s cross-examination. State v. Phillips, 171 N.C. App. 622, 615 S.E.2d 382, 2005 N.C. App. LEXIS 1369 (2005).

Because no evidence proffered at an in camera hearing supported an inference that a victim’s prior sexual activity was forced or caused any injuries, evidence of the victim’s prior sexual activity was properly excluded under the rape shield statute, G.S. 8C-1, N.C. R. Evid. 412(b)(2); the probative value, if any, to defendant was substantially outweighed by the danger of unfair prejudice to the State and the prosecuting witness under G.S. 8C-1, N.C. R. Evid. 403. State v. Harris, 360 N.C. 145, 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005).

Trial court in a condemnation proceeding did not err in excluding opinion testimony as to property value offered by four witnesses, where the opinions were based upon prior condemnation sales, which were an improper basis for valuing property in a current condemnation proceeding, or based on sales of property which was insufficiently similar to the property in question. City of Charlotte v. Ertel, 170 N.C. App. 346, 612 S.E.2d 438, 2005 N.C. App. LEXIS 1009 (2005).

Testimony that defendant was found with marijuana and a pistol was not admissible because it was considered unfairly prejudicial in a trial for robbing and shooting a marijuana supplier. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615, 2007 N.C. App. LEXIS 1162 (2007).

Testimony of an expert who did not interview the witnesses, observe their testimony, or visit the crime scene was properly excluded, as the probative value of the testimony, considered in the light most favorable to defendant, was “marginally weak,” and evidence would have confused the jury, unnecessarily delayed the proceeding, and would not have been of significant assistance to the jury. State v. McLean, 183 N.C. App. 429, 645 S.E.2d 162, 2007 N.C. App. LEXIS 1097 (2007).

Trial court properly excluded mental health expert’s testimony as to the likelihood of defendant’s release from the hospital if the jury found defendant not guilty by reason of insanity after finding that the expert’s testimony could confuse the issues of the case with the possible consequences, and the expert’s testimony would not assist the jury in regard to any matter in issue or fact. State v. Hall, 187 N.C. App. 308, 653 S.E.2d 200, 2007 N.C. App. LEXIS 2453 (2007).

It was error to exclude under G.S. 8C-1, N.C. R. Evid. 403, testimony that in a questionnaire the victim had stated that she sometimes saw herself as if she were looking at someone else, that she was sometimes not sure whether something that happened was real or a dream, and that she sometimes heard voices inside her head; the evidence should have been admitted under G.S. 8C-1, N.C. R. Evid. 611(b), because it went to the credibility of the victim, whose testimony was crucial to the state’s case, because the victim’s testimony was contradicted by two eyewitnesses, and because attacking the victim’s credibility was the defense’s main theory. State v. Whaley, 362 N.C. 156, 655 S.E.2d 388, 2008 N.C. LEXIS 31 (2008).

Trial court properly sustained the State’s objection under G.S. 8C-1, N.C. R. Evid. 403, on the basis that the prejudicial effect of testimony, that defendant and his sexual assault victim previously had rented motel rooms together, outweighed its probative benefit. The evidence was not relevant and admissible under G.S. 8C-1, N.C. R. Evid. 412(b)(1) because defendant had not raised the victim’s consent as a defense. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701, 2008 N.C. App. LEXIS 431 (2008).

Trial court did not abuse its discretion in ruling that the probative value of a plastic baggie, which contained an undetermined white powder and was found on the accident victim following an automobile accident in which the victim was a passenger in the automobile that crashed, was substantially outweighed by the danger of unfair prejudice. Robinson v. Trantham, 195 N.C. App. 687, 673 S.E.2d 771, 2009 N.C. App. LEXIS 245 (2009).

Trial court did not abuse its discretion in excluding evidence of a child’s prior sexual conduct with her boyfriend under G.S. 8C-1, N.C. R. Evid. 403: (1) the temporal sequence created a risk of jury confusion, (2) a doctor had indicated that the child’s internal scarring likely resulted from penetration by a penis; and (3) although defendant did not contend, and the evidence did not support, that the child’s intercourse with her boyfriend could have caused the scarring, a jury could have been confused and mistakenly believed that the evidence was offered as an alternative explanation for the scarring. State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25, 2009 N.C. App. LEXIS 112 (2009).

In an action for injuries suffered in a motor vehicle collision, because plaintiff’s contributory negligence was not at issue in the case, any probative value of evidence of plaintiff’s conduct was outweighed by the danger of such evidence confusing the jury; accordingly, the trial court did not err by precluding defendants from presenting evidence of plaintiff’s contributory negligence. Rabon v. Hopkins, 208 N.C. App. 351, 703 S.E.2d 181, 2010 N.C. App. LEXIS 2383 (2010).

Trial court properly granted defendant’s motion to suppress evidence of repressed memory where, pursuant to G.S. 8C-1, N.C. R. Evid. 403, the probative value of the evidence outweighed the prejudicial effect of the evidence; the scientific aura surrounding repressed memory theory and the expert who would testify might become so firmly established in the minds of potential jurors that they might assign undue credibility to repressed memory evidence. State v. King, 214 N.C. App. 114, 713 S.E.2d 772, 2011 N.C. App. LEXIS 1620 (2011), aff'd, modified, 366 N.C. 68, 733 S.E.2d 535, 2012 N.C. LEXIS 418 (2012).

Trial court could reasonably have determined that the probative value of evidence from detention officers regarding defendant’s behaviors in 2009, five years after the events at issue, was substantially outweighed by the potential for jury confusion and undue prejudice, as defendant presented voluminous expert and family testimony relating to the actual time frame at issue. State v. Shareef, 221 N.C. App. 285, 727 S.E.2d 387, 2012 N.C. App. LEXIS 765 (2012).

Motion in limine was properly granted in a medical malpractice case because, had the jury been allowed to hear expert testimony to the effect that a doctor violated the standard of care in reviewing a patient’s May 27, 2008, x-ray, it could have created confusion of the issues in the minds of the jurors and ensuing prejudice due to the fact that this was not a proximate cause of the patient’s death. Schmidt v. Petty, 231 N.C. App. 406, 752 S.E.2d 690, 2013 N.C. App. LEXIS 1306 (2013).

It was not error to admit defendant’s recorded interview on grounds the interview disclosed defendant’s assessment of defendant’s acts and belief defendant deserved to go to jail because (1) this was not an improper basis for a decision, and (2) the prejudice to defendant was not unfair. State v. Baldwin, 240 N.C. App. 413, 770 S.E.2d 167, 2015 N.C. App. LEXIS 277 (2015).

State could have proven even without a witness’s testimony that defendant knew about the plan to rob the victim, and thus any alleged bias resulting from a fight between the witness and her family became less probative, and the trial court did not abuse its discretion in excluding the evidence under the balancing test; the trial court weighed the weak probative value of the evidence against the confusion that could result from drawing the jury into a family feud that was tangential to the death of the victim, and the trial court did not err. State v. Triplett, 368 N.C. 172, 775 S.E.2d 805, 2015 N.C. LEXIS 682 (2015).

Trial court did not err in denying defendant’s motion to admit a social worker’s letters to the editor of a newspaper because defendant failed to demonstrate a reasonable possibility of a different result at trial had the letters been admitted; in light of the social worker’s testimony, it was difficult to see how admitting the letters would have provided any necessary additional insight into her thoughts and outrage about child abuse, including her advocacy for children who had been abused by their parents. State v. Mendoza, 250 N.C. App. 731, 794 S.E.2d 828, 2016 N.C. App. LEXIS 1255 (2016).

Trial court properly excluded evidence of the victim’s admitted commission of a sexual assault when he was a child because the act occurred more than a decade earlier, involved no factual elements similar to the events underlying the charge for which defendant was on trial, was disturbing and highly prejudicial, other evidence presented by the State also rendered the victim’s inconsistent statements less relevant to the contested factual issues at trial, and the fact that defendant asked the victim if he was a virgin, regardless of the victim’s response, was probative of defendant’s intent in meeting the victim at the shed where the sexual offense occurred. State v. West, 255 N.C. App. 162, 804 S.E.2d 225, 2017 N.C. App. LEXIS 668 (2017).

Trial court did not abuse its discretion by excluding the physician’s expert testimony because the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, as the physician’s testimony did not speak directly to defendant’s condition at the time of the victim’s death. State v. Broyhill, 254 N.C. App. 478, 803 S.E.2d 832, 2017 N.C. App. LEXIS 566 (2017).

It was no error to exclude defendant’s testimony that a neighbor sexually assaulted defendant’s other daughter because (1) the testimony could have confused the jury, and (2) any probative value was outweighed by the prejudicial or inapplicable nature of the testimony. State v. Alonzo, 261 N.C. App. 51, 819 S.E.2d 584, 2018 N.C. App. LEXIS 800 (2018), modified, aff'd, 373 N.C. 437, 838 S.E.2d 354, 2020 N.C. LEXIS 86 (2020).

Claim Estimates by Insurer Properly Excluded. —

In personal injury action against plaintiff’s UIM insurer, admitting claim estimates prepared by the insurer would unduly prejudice the defense and circumvent the policy of having the jury focus on the facts and not the existence of liability insurance. Braddy v. Nationwide Mut. Liab. Ins. Co., 122 N.C. App. 402, 470 S.E.2d 820, 1996 N.C. App. LEXIS 447 (1996).

Medical Record Properly Excluded. —

In a case arising from an automobile accident which plaintiff testified resulted in injury to her neck, shoulder and thoracic spine, the court properly excluded evidence from her 10-year-old medical record indicating “longstanding mid-thoracic pain” and “paraspinal muscle pain” along with the testimony of defense witness/doctor regarding disputed medical record. Sitton v. Cole, 135 N.C. App. 625, 521 S.E.2d 739, 1999 N.C. App. LEXIS 1186 (1999).

Evidence of subsequent remedial measures in the form of written instructions to security guards was properly excluded since it could not be used to impeach testimony and since its probative value tended to be outweighed by the danger of unfair prejudice. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524 S.E.2d 53, 1999 N.C. App. LEXIS 1296 (1999).

Evidence Held Prejudicial. —

Evidence of prior sexual assaults against a witness, which happened seven years before a similar sexual assault for which defendant was charged, was prejudicial to defendant’s fundamental right to a fair trial because the prior acts were too remote in time. State v. Jones, 322 N.C. 585, 369 S.E.2d 822, 1988 N.C. LEXIS 475 (1988).

Where counsel for the defendant asked over 60 questions referencing an action arising out of events occurring some 12 to 14 years earlier and these inquiries related to an extremely remote event, they were minimally probative when compared to their prejudicial effect, and were therefore proscribed by this rule; further, the continued repetitive questioning reflected the harassment and “needless consumption of time” that Rule 611(a) prohibits. Weston v. Daniels, 114 N.C. App. 418, 442 S.E.2d 69, 1994 N.C. App. LEXIS 391 (1994).

Where the probative value of witness’s testimony to prove intent, common scheme, plan, modus operandi, or absence of mistake directly depended on defendant having committed the crime about which she testified, defendant’s acquittal of the offense in an earlier trial so divested the evidence of probative value that, as a matter of law, it could not outweigh the tendency of such evidence to unfairly prejudice the defendant. State v. Robinson, 115 N.C. App. 358, 444 S.E.2d 475, 1994 N.C. App. LEXIS 612 (1994).

Interjecting evidence which would allow the jury to infer the defendant’s immaturity so that the jury could infer that he lacked capacity to form the requisite intent would have unnecessarily confused the issues; therefore, even if this evidence was relevant and admissible, its exclusion was within the trial court’s discretion. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479, 1994 N.C. LEXIS 702 (1994).

Trial court acted within its discretion in ruling that defendant could not inquire of a witness about sexual paraphernalia found in the murder victim’s home, in that its probative value was substantially outweighed by the danger of unfair prejudice, G.S. 8C-1, Rule 403. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1, 2005 N.C. LEXIS 842 (2005).

Evidence of defendant’s prior incarceration constituted inadmissible character evidence that prejudiced his defense because the State improperly elicited that evidence to show defendant’s propensity to commit the drug crimes for which he was on trial; the State could not purport to rebut the testimony of defendant’s girlfriend with bad character evidence as she did not testify as to defendant’s reputation for being law-abiding; and there was a reasonable possibility that, had the error not been committed, the jury would have reached a different result, as the evidence against defendant was largely circumstantial, and a jury could have reasonably concluded that the marijuana and cocaine were attributable to defendant’s roommates. State v. Rios, 251 N.C. App. 318, 795 S.E.2d 234, 2016 N.C. App. LEXIS 1317 (2016).

Exclusion of Evidence Held Harmless. —

Trial court’s decision to prevent defendant’s expert from relating statements made by defendant to him and used by him to form the basis of his expert opinion of defendant’s mental state at the time of the homicide, if an abuse of discretion, was harmless error since the same information was related in answers given by the expert to other questions. State v. Holston, 134 N.C. App. 599, 518 S.E.2d 216, 1999 N.C. App. LEXIS 868 (1999), cert. denied, 353 N.C. 389, 547 S.E.2d 30, 2001 N.C. LEXIS 132 (2001).

Character of Victim. —

Defendant failed to show that the trial court abused its discretion by excluding the testimony of witnesses where his theory that the testimony was relevant because it showed that the victim had been involved in a shooting incident a few hours prior to his death, providing someone other than the defendant with a motive to kill him, was pure conjecture, and the proffered testimony was prejudicial to the State in that it suggested the victim was himself a violent person. State v. McCray, 342 N.C. 123, 463 S.E.2d 176, 1995 N.C. LEXIS 534 (1995).

The trial court did not abuse its discretion in finding that evidence was being offered to unfairly prejudice the State, to confuse the issues, and to mislead the jury by inflaming the jury’s passions against murder victim by implying that she was involved in an interracial relationship and that she was a drug user. State v. Julian, 345 N.C. 608, 481 S.E.2d 280, 1997 N.C. LEXIS 30 (1997).

Admission of Prejudicial Evidence within the Discretion of the Court. —

The court determined within its discretion that the probative value of the admission of the un-redacted version of the incident report, obtained through a subpoena duces tecum, when the redacted version had previously been introduced into evidence, outweighed its tendency to prejudice the defendant. Kilgo v. Wal-Mart Stores, Inc., 138 N.C. App. 644, 531 S.E.2d 883, 2000 N.C. App. LEXIS 791 (2000).

Evidence Improperly Excluded. —

Where the trial court erred by not allowing the defendant to question the complainant in the presence of the jury regarding the allegation of rape made five months earlier and subsequently withdrawn, defendant was entitled to a new trial because there was a reasonable probability that the outcome of the trial would have been different. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525, 1996 N.C. App. LEXIS 208 (1996).

Opinion evidence of defendant’s friend should not have been excluded since the evidence of defendant’s trusting nature was not offered to show that defendant trusted her husband or that she valued her familial relationships but, rather, to show that defendant was trusting of individuals whom she did not know; the opinion testimony would have been the only evidence regarding defendant’s character trait for being trusting of others. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382, 2013 N.C. App. LEXIS 894 (2013).

It was the defense’s decision to chance the risk of prejudice from cross-examining the witness with a message challenging the witness’s credibility, and the trial court erred by excluding the evidence. State v. Triplett, 236 N.C. App. 192, 762 S.E.2d 632, 2014 N.C. App. LEXIS 956 (2014), rev'd, 368 N.C. 172, 775 S.E.2d 805, 2015 N.C. LEXIS 682 (2015).

Exclusion of Expert Testimony Prejudicial. —

Defendant was prejudiced by the trial court’s erroneous exclusion of his expert’s testimony, as the error prevented defendant from challenging the strongest piece of the State’s evidence, a Google map search conducted on defendant’s laptop of the exact area where the victim’s body was discovered. State v. Cooper, 229 N.C. App. 442, 747 S.E.2d 398, 2013 N.C. App. LEXIS 936 (2013).

Report In Defamation Case. —

Report did not demonstrate the substantial truth of the statements in question or the articles generally, did not address whether plaintiff’s work was deficient, and did not address the accuracy of the actual work; thus, the report was not relevant; even if the report had some relevance, it was substantially outweighed by the danger of unfair prejudice, as the report was an interim report and recommended further investigation, and that investigation confirmed that plaintiff’s analysis was accurate. Desmond v. News & Observer Publ'g Co., 263 N.C. App. 26, 823 S.E.2d 412, 2018 N.C. App. LEXIS 1272 (2018), aff'd in part, rev'd, 375 N.C. 21, 846 S.E.2d 647, 2020 N.C. LEXIS 698 (2020).

Probative Value of Evidence Outweighed Danger of Unfair Prejudice. —

The prosecutor’s cross-examination of defendant about a specific prison infraction was properly allowed in light of defendant’s extensive testimony on direct examination regarding the amount of time that defendant was confined to lockup at various institutions throughout the prison system. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428, 2000 N.C. LEXIS 524 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797, 2001 U.S. LEXIS 862 (2001).

Evidence Properly Admitted. —

Trial court did not abuse its discretion in balancing the probative value of detective’s testimony about the contents of a lost surveillance video tape against its prejudicial effect because the testimony provided evidence of the identity of the perpetrator, who was disguised with sunglasses and wore a dark covering over his face; although prejudicial, defendant made no showing that the prejudice was unfair or had the undue tendency to suggest a decision on an improper basis. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790, 2005 N.C. App. LEXIS 2031 (2005).

Trial court did not abuse its discretion in admitting evidence of a prior robbery under G.S. 8C-1-404(b) because the similarities between the prior robbery and the current offense, which occurred within one week of each other, were sufficient to support a finding that the probative value of the evidence of the prior robbery was not substantially outweighed by the danger of unfair prejudice. State v. Hagans, 177 N.C. App. 17, 628 S.E.2d 776, 2006 N.C. App. LEXIS 719 (2006).

Because a trial court had discretion to admit all relevant evidence under N.C. R. Evid. 402, as well as to exclude evidence under N.C. R. Evid. 403, based on confusion or unfair prejudice, it had discretion to admit testimony of plaintiff former employee’s coworkers, who suffered symptoms similar to that of the employee, who sought to recover damages based on his exposure to an allegedly toxic workplace. Absent an abuse of discretion, which was not shown, that ruling would not be overturned. Cameron v. Merisel Props., 187 N.C. App. 40, 652 S.E.2d 660, 2007 N.C. App. LEXIS 2318 (2007).

Trial court’s denial of creditor’s and auctioneer’s motion to exclude any evidence that they failed to escrow the auction funds in violation of an agreement made between the parties was not an abuse of discretion as that evidence was highly relevant to the secured creditor’s claims, and was not substantially outweighed by any prejudice to the creditors and the auctioneer. Bartlett Milling Co., L.P. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 665 S.E.2d 478, 2008 N.C. App. LEXIS 1546 (2008).

Evidence of defendant’s extra-marital affair was admissible because the evidence was relevant and helped explain why the child victim waited to come forward and report what was happening. State v. Tadeja, 191 N.C. App. 439, 664 S.E.2d 402, 2008 N.C. App. LEXIS 1503 (2008).

Admission of evidence identifying defendant as Muslim was not error since defendant could not show that, without such evidence, a different result would likely have been reached; the subject testimony was provided by defendant’s prior girlfriend and indicated that the girlfriend provided a false alibi for defendant after defendant asked the witness to do so and the witness felt that such help was what the girlfriend was supposed to do for defendant. State v. Rankin, 191 N.C. App. 332, 663 S.E.2d 438, 2008 N.C. App. LEXIS 1320 (2008).

Testimony of a trooper and a witness regarding an employee’s actions in fleeing the scene of a motor vehicle accident was relevant and properly admitted to show the employee’s motivation for leaving the scene as the evidence related to the possibility that the employee was acting as an agent for the employee’s employer. Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553, 2008 N.C. App. LEXIS 1623 (2008).

Letter from defendant to defendant’s mother was properly admitted, because it was not needlessly cumulative given that it was the only piece of evidence originating directly from defendant reflecting defendant’s acute memory of significant details of the crime scene, and it was not unfairly prejudicial. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618, 2009 N.C. LEXIS 239 (2009).

Admission of defendant’s nursing board records and defendant’s use of prescription pain medications was not unduly prejudicial under G.S. 8C-1, Rule 403 as in defendant’s self-report, defendant disclosed that defendant’s history of prescription drug abuse resulted in the loss of defendant’s job and financial problems, that defendant’s family and financial issues/relationships were strained but slowly improving, and that defendant’s spouse, whom defendant allegedly murdered, was more supportive, all of which demonstrated motive. State v. Lawson, 194 N.C. App. 267, 669 S.E.2d 768, 2008 N.C. App. LEXIS 2259 (2008).

Admission of a detective’s testimony that defendant was lying was proper, as it as relevant, in that it provided the context surrounding defendant’s inculpatory responses, and the admission of such testimony was not unduly prejudicial. State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 290, 2011 N.C. App. LEXIS 1737 (2011).

Trial court did not err by admitting a forensic psychologist’s report and testimony because the probative value of the report and testimony substantially outweighed the potential prejudicial effect to defendant; the psychologist’s reflections of defendant’s character, which comprised a small portion of the report, were not admitted for the truth of the matters asserted but were offered to demonstrate how the resulting recommendations were relevant to defendant’s state of mind. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Trial court properly determined that, while barely so, the evidence in question was relevant, and then weighed its probative value against prejudice concerns; because the trial court conducted that analysis, it necessarily found the voice mail relevant, and otherwise, the trial court would have excluded the evidence, making a prejudice analysis unnecessary or at least, mere surplusage. State v. Triplett, 368 N.C. 172, 775 S.E.2d 805, 2015 N.C. LEXIS 682 (2015).

Defendant failed to satisfy his burden to establish plain error in the admission of rap lyrics found in a notebook in his room because he did not explain why, had the rap lyrics not been admitted, the jury probably would have rejected the State’s other evidence and found him not guilty. State v. Santillan, 259 N.C. App. 394, 815 S.E.2d 690, 2018 N.C. App. LEXIS 447 (2018).

IV.Admission or Exclusion of Evidence Not Prejudicial.

Cumulative Character Evidence. —

It was not error for the trial judge, in a trial for first degree sexual offense, after the defendant had called and examined six character witnesses, to ask him to list his seven remaining character witnesses and have them stand and state their names and addresses, where the jury was informed by the comments of the court and counsel that these witnesses were present to attest to the defendant’s good character and reputation in the community. State v. Ramey, 318 N.C. 457, 349 S.E.2d 566, 1986 N.C. LEXIS 2675 (1986).

The probative value of defendant’s prior conviction for involuntary manslaughter was not outweighed by its prejudicial effect in a capital murder case and was, therefore, clearly admissible as an aggravating factor in the sentencing phase of defendant’s trial where defendant admitted the conviction and stipulated to it. State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988) sentence vacated and remanded for further consideration at 494 U.S. 1021, 110 S. Ct. 1463, 108 L. Ed. 2d 601 (1990). in light of State v. Anderson, 85 N.C. App. 104, 354 S.E.2d 264, 1987 N.C. App. LEXIS 2585.

Where the trial court, by sustaining the prosecutor’s objection to a question, did nothing more than exclude cumulative evidence, the trial court’s action did not constitute error. State v. Barton, 335 N.C. 696, 441 S.E.2d 295, 1994 N.C. LEXIS 102 (1994).

Evidence of Prior Conviction Properly Admitted After Character Put at Issue. —

Although defendant’s motion to suppress evidence of his prior conviction for assault with a deadly weapon had been granted, the trial court did not abuse its discretion by permitting the evidence to be admitted where defendant put his character at issue by offering the testimony of two witnesses as to his peaceful nature during the time frame of the conviction. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72, 2002 N.C. App. LEXIS 498 (2002).

Evidence of Sexual Activity in Paternity Case. —

Character evidence is generally not admitted in civil cases unless it is character which is in issue because this evidence is often more prejudicial than probative. Where, however, evidence of sexual activity and promiscuity goes to a central element of the case, i.e., opportunity to impregnate plaintiff, whether or not other men had the opportunity to father child born out of wedlock is of ultimate relevance to the issue of paternity. In addition, this nongenetic outside information, as a factor in the probability of paternity calculation, must be received in order for the jury to weigh the expert’s assumptions underlying the calculation of numerical probability of paternity. State ex rel. Williams v. Coppedge, 105 N.C. App. 470, 414 S.E.2d 81, 1992 N.C. App. LEXIS 259, rev'd, 332 N.C. 654, 422 S.E.2d 691, 1992 N.C. LEXIS 578 (1992).

Evidence from Sexual Assault Kit. —

The results of a test based on the “Phadebas methodology” were not excludable under this section, where the test confirmed the presence of saliva on the vaginal swab taken from the victim’s sexual assault kit, which served to corroborate the victim’s testimony that the defendant had placed his mouth on her vagina. State v. Dennis, 129 N.C. App. 686, 500 S.E.2d 765, 1998 N.C. App. LEXIS 760 (1998).

Evidence regarding victim’s cash advances to defendant and the victims real estate dealings with defendant shed light on their relationship at the time of the victim’s death and was relevant; thus, the trial court did not abuse its discretion by declining to exclude this evidence pursuant to this Rule. State v. Bishop, 346 N.C. 365, 488 S.E.2d 769, 1997 N.C. LEXIS 481 (1997).

Evidence of Prior Shooting. —

Trial court did not err in admitting evidence of a prior shooting committed by defendant since the prior shooting was similar to the shooting with which defendant was accused at trial and the prior shooting was not too remote in time; further, the trial court did not have to consider the years defendant served in prison for the prior shooting in determining remoteness. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596, 2001 N.C. LEXIS 942 (2001).

Repressed Memory of Evidence of Prior Crime. —

Repressed memory evidence of sexual offense committed by defendant was not unfairly prejudicial where the evidence’s value in proving a common plan or scheme outweighed the danger of such prejudice. State v. Williamson, 146 N.C. App. 325, 553 S.E.2d 54, 2001 N.C. App. LEXIS 945 (2001).

Cross-Examination Upheld. —

The defendant on trial for nine murders was not prejudiced by the cross-examination of expert witnesses concerning two additional murders he had committed. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, 2000 N.C. LEXIS 350 (2000), cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498, 2000 U.S. LEXIS 7911 (2000), writ denied, 360 N.C. 76, 2005 N.C. LEXIS 1121 (2005).

Cross-Examination to Establish Motive Proper. —

Where State did not cross-examine defendant in murder case about an unrelated rape accusation to show defendant was unworthy of belief because of this alleged bad act, but for purpose of establishing defendant’s motive for the crime for which he was on trial, the cross-examination was proper. State v. Meekins, 326 N.C. 689, 392 S.E.2d 346, 1990 N.C. LEXIS 294 (1990).

Admission of Evidence Held Not Prejudicial. —

Even if evidence of defendant’s prior convictions for driving while impaired was admitted in error, defendant failed to show prejudice where the evidence of defendant’s guilt presented at trial was overwhelming, including defendant’s admission that he had been drinking the afternoon of the accident, defendant’s admission that he was speeding, witness testimony that defendant smelled of alcohol, a doctor’s testimony that defendant’s blood alcohol level was between 0.05 and 0.094 at the time of the collision, and testimony that defendant was driving 75 miles per hour in a 45 mile per hour zone. State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849, 2011 N.C. App. LEXIS 1397 (2011).

Even of the trial court erred in admitting evidence of a prior robbery, the error was harmless given the victim’s identification of defendant and evidence that not only did defendant know the victim’s brother hid money at her house, but when the victim told the men the money was her mother’s house the men left and shortly thereafter someone attempted to break into the victim’ smother’s house, supporting an inference that defendant was the perpetrator. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Clarifying testimony as to the absence of evidence that defendant had participated in, or been affiliated with, the violent, anti-government activities of certain tax protestor groups mitigated any prejudicial impact of the challenged testimony; even if the evidence of the anti-government, violent nature of the groups was erroneously admitted, defendant failed to show plain error. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382, 2013 N.C. App. LEXIS 894 (2013).

Evidence of a prior incident where defendant drove impaired was more probative of proving the malice necessary for second-degree murder than prejudicial, and any prejudice was addressed by the court’s limiting instruction to the jury. State v. Grooms, 230 N.C. App. 56, 748 S.E.2d 162, 2013 N.C. App. LEXIS 1016 (2013).

Even if the trial court erred in admitting song lyrics defendant wrote, the error was not prejudicial due to the other abundant evidence of defendant’s guilt. State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Even if the trial court erred by admitting a forensic psychologist’s report and testimony, any error was non-prejudicial because the State presented other abundant evidence of defendant’s guilt; defendant failed to carry his burden of showing that had the psychologist’s report and corresponding testimony not been admitted at trial, a reasonable possibility existed that the jury would have reached a different result; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Because the court of appeals erred by holding that the trial court violated the rule by admitting evidence concerning defendant’s response to a wrongful death and declaratory judgment action, defendant was not entitled to relief from the trial court’s judgment on the basis of the admission of that evidence. State v. Young, 368 N.C. 188, 775 S.E.2d 291, 2015 N.C. LEXIS 687 (2015).

Court of appeals erred by holding that the trial court violated the rule by admitting evidence concerning defendant’s response to the wrongful death and declaratory judgment actions filed against him because the evidence had at least some material probative value for the purpose of challenging the validity of defendant’s alibi defense, and the trial made a serious attempt to address the risk of unfair prejudice in its jury instructions. State v. Young, 368 N.C. 188, 775 S.E.2d 291, 2015 N.C. LEXIS 687 (2015).

Trial court did not abuse its discretion in determining that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence of the prior incident of defendant’s altercation with a prior boyfriend given the significant points of commonality between the prior incident and the murder, as they both involved defendant and her current boyfriend, escalation of an argument that led to the use of force, defendant’s further escalation of the argument, and her deliberate decision to obtain a knife from the kitchen, and the limiting instructions given to the jury. State v. Mangum, 242 N.C. App. 202, 773 S.E.2d 555, 2015 N.C. App. LEXIS 574 (2015).

Even though the trial court’s failure to disclose the third jury note violated defendant’s right to presence, defendant was not prejudiced because had the trial court disclosed the note and defendant had renewed his objection under this rule, the trial court would not have had any reason to change its ruling admitting the inmate’s testimony of defendant’s confession and threats to potential witnesses. State v. Mackey, 241 N.C. App. 586, 774 S.E.2d 382, 2015 N.C. App. LEXIS 507 (2015).

Trial court did not err by admitting into evidence under G.S. 8C-1, N.C. R. Evid. 404(b), portions of an audiotape and transcript that included a conversation between defendant and an informant while they were incarcerated where the informant’s credibility was crucial to the State’s case, the trial court gave the jury a limiting instruction. The admission of the evidence did not violate G.S. 8C-1, N.C.R. Evid. 403 because the relevance of the redacted version of the transcript, when combined with the limiting instruction, substantially outweighed any unfair prejudice. State v. Carvalho, 243 N.C. App. 394, 777 S.E.2d 78, 2015 N.C. App. LEXIS 811 (2015), cert. denied, 138 S. Ct. 59, 199 L. Ed. 2d 19, 2017 U.S. LEXIS 4741 (2017).

Trial court did not commit prejudicial error by allowing an accident report into evidence, which showed redactions for an automobile accident victim’s alcohol use and zeros or blanks for a motorist’s alcohol use because the victim’s estate failed to show any prejudice to warrant a different result at trial in that other unchallenged and admitted evidence showed that the motorist was not under the influence of alcohol. Scheffer v. Dalton, 243 N.C. App. 548, 777 S.E.2d 534, 2015 N.C. App. LEXIS 876 (2015).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent’s child were admissible in a wrongful death and medical malpractice action because the personal representative failed to carry the burden to show that the records were unfairly prejudicial, or that the trial court abused its discretion in admitting the prior records into evidence. The prior records illustrated a complete picture of the decedent’s mental health and were relevant concerning causation and damages. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150, 2015 N.C. App. LEXIS 905 (2015).

Even though the trial court erred by refusing to allow defense counsel to cross-examine a victim about statements he allegedly made to his wife and the police that he was addicted to porn, had an affair, and that he could not control his behavior because of defendant’s abuse of him, because the evidence was relevant and was not barred by the Rape Shield Act, defendant was not prejudiced because the evidence of defendant’s guilt was overwhelming. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45, 2015 N.C. App. LEXIS 1037 (2015).

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent’s reassignment shouldn’t have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn’t have happened was admissible in an administrative hearing to show the declarants’ existing mental states and motives. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50, 2016 N.C. App. LEXIS 505 (2016).

Trial court did not abuse its discretion by admitting into evidence a rap song recording alleged to be defendant’s where it was relevant to prove that a social media webpage on which it was found was defendant’s page and that defendant knew that his dog was vicious and that he was proud of that fact. The trial court did not err by determining that the probative value of the song was not substantially outweighed by the prejudicial effect. State v. Ford, 245 N.C. App. 510, 782 S.E.2d 98, 2016 N.C. App. LEXIS 184 (2016).

Trial court did not err by admitting an officer’s testimony that contained admissions that defendant had embezzled cash receipts from his previous employer because it was relevant to show his intent, plan, or absence of mistake or accident, the crimes and defendant’s methods were similar, and the trial court limited the evidence’s use in its instructions to the jury. State v. Fink, 252 N.C. App. 379, 798 S.E.2d 537, 2017 N.C. App. LEXIS 192 (2017).

Defendant failed to demonstrate that the trial court abused its discretion in admitting a confidential informant’s statements because the statements were relevant and explained the steps taken by officers during the investigation; the trial court’s limiting instruction demonstrated that the trial court thoughtfully considered the nature of the testimony and how it could potentially be used by the jury. State v. Steele, 260 N.C. App. 315, 817 S.E.2d 487, 2018 N.C. App. LEXIS 640 (2018).

Even if the trial court improperly excluded defendant’s testimony defendant’s opinion testimony regarding his medical conditions and its impact on his conduct, the purported error was not prejudicial, as the State’s evidence tended to show that defendant drove with a suspended license, fled to elude police, and drove at speeds nearly double the posted speed limit, ignoring his passengers; pleas to slow down and stop fleeing. State v. Solomon, 259 N.C. App. 404, 815 S.E.2d 425, 2018 N.C. App. LEXIS 436 (2018).

Clinical studies were admissible in a medical malpractice case because, (1) despite being published after a patient was hospitalized, the studies showed lack of causation and addressed morbidity, and (2) the studies’ subjects’ differences from the patient went to weight, not admissibility, so there was no unfair prejudice. Ingram v. Henderson Cty. Hosp. Corp., 259 N.C. App. 266, 815 S.E.2d 719, 2018 N.C. App. LEXIS 421 (2018).

Defendant failed to show that the trial court plainly erred in defendant’s trial for misdemeanor stalking by admitting challenged portions of the testimony of defendant’s ex-paramour that defendant had assaulted the ex-paramour in the past and that the ex-paramour was afraid of defendant because the challenged portions of the ex-paramour’s testimony were relevant not only to show defendant’s propensity to commit the offense of stalking, but also established that the victim was in reasonable fear of defendant. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397, 2018 N.C. App. LEXIS 808 (2018).

Given that the trial court redacted civil domestic violence protective orders (DVPOs) and properly instructed the jury regarding the State of North Carolina’s burden of proof as well as the jury’s duty to find the facts in defendant’s trial for misdemeanor stalking, the trial court did not abuse its discretion in admitting the DVPOs and related filings into evidence because the DVPOs were relevant to show defendant’s course of conduct as well as defendant’s motive to commit the offense of stalking. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397, 2018 N.C. App. LEXIS 808 (2018).

During defendant’s first-degree murder trial, the trial court did not err by admitting the victim’s skull into evidence because it was relevant to the State’s case, as the State claimed that it proved the victim’s identity and race and it illustrated the testimony of the hunter who found it. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543, 2018 N.C. App. LEXIS 939 (2018).

During defendant’s first-degree murder trial, the trial court did not err by admitting the victim’s rib bones into evidence because the State used them to illustrate the victim’s injuries, which the medical examiner later concluded caused her death. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543, 2018 N.C. App. LEXIS 939 (2018).

During defendant’s first-degree murder trial, the trial court did not err by admitting the victim’s femur into evidence because the State used it to establish the identity of the victim through DNA testing and therefore it was highly probative. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543, 2018 N.C. App. LEXIS 939 (2018).

During defendant’s first-degree murder trial, the trial court did not err by admitting the testimony of two witnesses’ regarding prior abusive relationships they had with defendant, despite the nine-year gap between assaults, because of the similarity of the assaults and the overwhelming evidence against defendant. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543, 2018 N.C. App. LEXIS 939 (2018).

Letters were relevant as they indicated that defendant faced financial hardships, and this, coupled with evidence that the victim had threatened to remove defendant from the home and continue to request child support, indicated that the letters made the existence of a financial motive to murder the victim more probable; the court also limited the danger of unfair prejudice by prohibiting the State from publishing to the jury letters which indicated a criminal action against defendant. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Evidence of the jailhouse attack on the witness and testimony that the witness was concerned for his safety was relevant and admissible because defendant was, at minimum, aware of the attack or might have encouraged it; defendant was not unfairly prejudiced in light of the similar unchallenged evidence of defendant’s threats to intimidate the witness; and the evidence was relevant and probative to both the issues of defendant’s knowledge of his guilt and the witness’s credibility, and was not substantially outweighed by any undue prejudice. State v. Smith, 263 N.C. App. 550, 823 S.E.2d 678, 2019 N.C. App. LEXIS 45 (2019).

Trial court did not plainly err by admitting evidence of defendant’s past incidents of domestic violence against the victim and her mother because the evidence was relevant as the victim had delayed in reporting the alleged sexual abuse and the evidence went directly to the victim’s fear in reporting the abuse. State v. Betts, 267 N.C. App. 272, 833 S.E.2d 41, 2019 N.C. App. LEXIS 723 (2019), aff'd, modified, 377 N.C. 519, 858 S.E.2d 601, 2021- NCSC-68, 2021 N.C. LEXIS 541 (2021).

Trial court did not abuse its discretion by allowing the engineer’s report because it was highly probative as to whether the engineer’s testimony was credible concerning the stop sign’s placement, as his testimony contracted what he wrote in the report, and the risk of unfair prejudice was low. Holland v. French, 273 N.C. App. 252, 848 S.E.2d 274, 2020 N.C. App. LEXIS 641 (2020).

Trial court did not abuse its discretion by excluding the victim’s cell-phone evidence because the evidence tended to show that defendant was honestly in fear for his life, but that the degree of force he used was unreasonable, as the victim was unarmed and running away from defendant when he was killed. State v. McKoy, 868 S.E.2d 357, 2022- NCCOA-60, 2022 N.C. App. LEXIS 77 (Ct. App. 2022).

Admission of Improper Evidence Not Prejudicial. —

The admission of evidence concerning the defendant’s convictions of failure to follow a truck route and improper turning was improper under G.S. 8C-1, Rule 609, but the error was not prejudicial to the defendant in prosecution for driving while his license was revoked, where the defendant admitted driving the van while his license was revoked. State v. Gainey, 84 N.C. App. 107, 351 S.E.2d 819, 1987 N.C. App. LEXIS 2461 (1987).

Watch and ring taken from victim of rape and kidnapping were “relevant” in defendant’s trial for those offenses, because they tended to make the existence of a fact of consequence — defendant’s connection to the offenses with which he was charged — more probable than it would be without the evidence, and their admission was not unduly prejudicial. State v. Mercer, 317 N.C. 87, 343 S.E.2d 885, 1986 N.C. LEXIS 2431 (1986).

State’s exhibits, which included $5,900 in United States currency, rolling papers and pipe, electric digital scales, a triple beam balance scale, a water bong, a plastic bag containing white powder, an airline bag in which the white powder was found and a briefcase with documents, with the exception of the briefcase, were relevant to the crime of trafficking in cocaine, in that they intended to show that defendant knowingly possessed cocaine and was trafficking in it, and the briefcase, which was in defendant’s possession at the time of arrest, tended to explain or illustrate the circumstances surrounding his arrest. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227, 1986 N.C. App. LEXIS 2455 (1986).

In prosecution for incest, evidence tending to show that defendant had had prior sexual contact with the prosecuting witness was reasonably probative of defendant’s knowledge, opportunity, intent, and plan, and was not so prejudicial as to outweigh its probative value and render it inadmissible; moreover, even if there was error in the admission of such evidence, absent a showing of a reasonable possibility that a different result would have been reached had the evidence been excluded, any possible error would be considered harmless. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327, 1986 N.C. App. LEXIS 2670 (1986).

The admission into evidence of the defendant’s prior convictions for driving while impaired and for hit and run did not unfairly prejudice the defendant in prosecution for driving while his license was revoked, where the defendant admitted driving the van while his license was revoked. State v. Gainey, 84 N.C. App. 107, 351 S.E.2d 819, 1987 N.C. App. LEXIS 2461 (1987).

Evidence merely disclosing the subsequent pregnancy of the rape victim was admissible as tending to prove penetration, an essential element of the crime of forcible rape; moreover, the victim’s simple statement that she had an abortion served the purpose of corroborating both the fact of penetration and the fact of her pregnancy, and the mere fact that an abortion took place was not so inflammatory as to render it inadmissible. State v. Stanton, 319 N.C. 180, 353 S.E.2d 385, 1987 N.C. LEXIS 1892 (1987).

In a prosecution for rape and sexual offense committed against a mentally defective female, the trial court did not err in allowing a pediatrician to testify on the credibility of children in general who report sexual abuse. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, 1987 N.C. App. LEXIS 2586, writ denied, 320 N.C. 174, 358 S.E.2d 65, 1987 N.C. LEXIS 2182 (1987).

Where improperly admitted evidence merely corroborated testimony from other witnesses, the Supreme Court found no reasonable possibility that the jury would have reached a different result absent the doctor’s testimony. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518, 1988 N.C. LEXIS 622 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1309 (1990) (in light of) State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

In view of the entire body and weight of relevant evidence presented by the State against defendant, and the utter irrelevance of a prior sex act to the charges on which defendant was ultimately convicted, the erroneous admission of a statement concerning the sex act did not constitute prejudicial error. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95, 1992 N.C. LEXIS 670 (1992), overruled, State v. Lynch, 334 N.C. 402, 432 S.E.2d 349, 1993 N.C. LEXIS 337 (1993).

Where a defendant made a general objection to a police officer’s testimony and not a specific objection to the officer’s qualification as an expert, the admissibility of the officer’s testimony was not preserved for review, and because the testimony was in the form of an opinion based on the officer’s expertise and was likely to assist the jury, the testimony was not patently inadmissible and prejudicial. State v. White, 154 N.C. App. 598, 572 S.E.2d 825, 2002 N.C. App. LEXIS 1520 (2002).

Defendant argued that the trial court erred in allowing the State to cross-examine defendant about convictions that were more than 10 years old; however, while the admission of convictions was an error, defendant failed to demonstrate that defendant was prejudiced by the admission. State v. Smith, 155 N.C. App. 500, 573 S.E.2d 618, 2002 N.C. App. LEXIS 1636 (2002).

When taxpayers sued county commissioners for entering into a contract which benefitted one of the commissioners, while the probative value of a witness’s “testimony,” during which he consistently asserted his Fifth Amendment privilege, did not substantially outweigh the prejudicial effect of allowing the jury to improperly speculate and draw inappropriate conclusions, there was no showing that this testimony was prejudicial. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, 2004 N.C. App. LEXIS 252 (2004).

In defendant’s prosecution for trafficking in cocaine by possession, the admission of testimony about defendant’s alleged gang affiliation was erroneous under G.S. 8C-1-403 because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant trafficked in or possessed cocaine under G.S. 90-95(h)(3), but the error was harmless because the evidence of defendant’s guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275, 2007 N.C. App. LEXIS 1739 (2007).

Defendant’s assignment of plain error to the admission into evidence of a photograph of the victim when she was alive, the victim’s bloody eyeglasses, and the victim’s key chain was overruled because the evidence against defendant was substantial and any prejudice arising from the admission of this physical evidence was de minimis. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569, 2007 N.C. App. LEXIS 2192 (2007).

Even if the admission of defendant’s statement that he was a “B and E guy” was error as it was evidence of defendant’s character, defendant was not entitled to relief because defendant could not show that it changed the result of case and, thus, the admission of said testimony did not prejudice defendant. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808, 2011 N.C. App. LEXIS 1224 (2011).

Potentially Prejudicial Testimony with Limiting Instruction. —

Where the court gave a limiting instruction, the probative value of the testimony evidence of defendant’s former girlfriend describing defendant’s prior bad acts was not substantially outweighed by its prejudicial impact. State v. Penland, 343 N.C. 634, 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Evidence of prior drug sales was admissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b), as the drive-by, street-level drug sale that occurred between defendant and an undercover female officer was not a general substantive crime in and of itself, but was a modus operandi by which defendant carried out the sale or distribution of drugs. The trial court guarded against the possibility of prejudice by conducting voir dire and by instructing the jury that it could only consider that evidence for the limited purposes of identity, intent, and common plan or scheme. State v. Welch, 193 N.C. App. 186, 666 S.E.2d 826, 2008 N.C. App. LEXIS 1741 (2008).

Witnesses’ prior inconsistent statements to the police were properly admitted in defendant’s murder trial as before each statement was admitted, the trial court instructed the jury not to consider the witnesses’ prior inconsistent statements substantively, but only for purposes of determining their credibility; defendant did not show that the probative value of the statements was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Avent, 222 N.C. App. 147, 729 S.E.2d 708, 2012 N.C. App. LEXIS 948, writ denied, 366 N.C. 397, 736 S.E.2d 176, 2012 N.C. LEXIS 1169 (2012).

Trial court’s decision to not exclude the testimony of two women whom defendant had exposed himself to was affirmed where the court was aware of the danger of unfair prejudice and gave a limiting instruction in response. State v. Waddell, 239 N.C. App. 202, 767 S.E.2d 921, 2015 N.C. App. LEXIS 54 (2015).

Jury Instructions. —

Allowance of the testimony of defendant’s robbery and kidnapping victim at his trial for the kidnapping, robbery, rape, and murder of two victims was not unduly prejudicial as the jury was instructed to consider the testimony only for the limited purpose of motive, intent, identity, or common plan, and the jury was specifically admonished not to consider the testimony on the issue of defendant’s character. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61, 2002 N.C. LEXIS 676 (2002), cert. denied, 537 U.S. 1133, 123 S. Ct. 916, 154 L. Ed. 2d 823, 2003 U.S. LEXIS 390 (2003), writ denied, 359 N.C. 284, 610 S.E.2d 382, 2005 N.C. LEXIS 32 (2005), writ denied, 656 S.E.2d 594, 2007 N.C. LEXIS 1244 (2007), writ denied, 362 N.C. 90, 2007 N.C. LEXIS 1475 (2007).

Trial court guarded against the possibility of unfair prejudice resulting from the admission of evidence relating to a prior crime by instructing the jury to consider such evidence for the limited purposes allowed by G.S. 8C-1-404(b). State v. Badgett, 361 N.C. 234, 644 S.E.2d 206, 2007 N.C. LEXIS 416, cert. denied, 552 U.S. 997, 128 S. Ct. 502, 169 L. Ed. 2d 351, 2007 U.S. LEXIS 11865 (2007).

Evidence Properly Admitted. —

In a murder trial involving a 60-year-old victim who was beaten and kicked about the head in June, 1983 and died in December, 1983 of complications resulting from injury to the brain received in the incident, admission of evidence regarding victim’s physical appearance at the scene and in the hospital was relevant under G.S. 8C-1, Rule 401 on the issue of excessive force, was not prejudicial under this rule, and was not inflammatory under the old rules. State v. Moxley, 78 N.C. App. 551, 338 S.E.2d 122, 1985 N.C. App. LEXIS 4322 (1985).

In a prosecution charging defendant with making harassing, embarrassing and annoying telephone calls in violation of G.S. 14-196(a)(3), the actual contents of the statements attributed to defendant were relevant to show whether the intent of the telephone calls was to abuse, annoy, threaten, terrify, harass or embarrass the victims of the calls, and the trial court did not err in allowing witnesses to testify about the actual contents of the calls. State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527, 1986 N.C. App. LEXIS 2115, cert. denied, 317 N.C. 708, 347 S.E.2d 442, 1986 N.C. LEXIS 2481 (1986).

In prosecution for first degree rape and intercourse by a substitute parent, the trial court did not commit prejudicial error in admitting into evidence, over objection, a letter which the defendant wrote to the victim’s mother, in which defendant promised not to “bother” victim again, despite defendant’s contention that what he had meant was that he would not discipline the victim anymore. State v. Moses, 316 N.C. 356, 341 S.E.2d 551, 1986 N.C. LEXIS 2059 (1986).

In a first degree sexual offense case, evidence of defendant’s similar attempted offense some 10 weeks after his attack on victim was not unfairly prejudicial, especially since the trial judge issued limiting jury instructions regarding this evidence. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

Whether or not building met the standards of the Building Code, though not determinative of the issue of negligence, had some probative value as to whether or not defendant failed to keep his store in a reasonably safe condition, and expert testimony on this issue could properly be introduced in a negligence action against store owner. Thomas v. Dixson, 88 N.C. App. 337, 363 S.E.2d 209, 1988 N.C. App. LEXIS 27 (1988).

In trial for possession with intent to sell and deliver cocaine and marijuana and for sale and delivery thereof, admission of evidence that on a previous occasion, when officers went to defendant’s admitted residence to purchase controlled substances from another person, an officer saw defendant inside the apartment did not constitute prejudicial error. State v. Fielder, 88 N.C. App. 463, 363 S.E.2d 662, 1988 N.C. App. LEXIS 38 (1988).

Where defendant was charged with raping his stepdaughter in her bunk-bed while her mother was working late at night, mother’s testimony tending to show that defendant similarly took advantage of her cousin when the child was left in his custody, while in his stepdaughter’s bunk-bed, while she was working late at night was admissible under the exception of G.S. 8C-1, Rule 404(b), and trial judge did not abuse his discretion by failing to exclude this testimony under the balancing test of this rule, since the alleged incident was sufficiently similar to the act charged and not too remote in time. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118, 1988 N.C. LEXIS 23 (1988).

Where young victim’s testimony clearly tended to establish the relevant fact that defendant took sexual advantage of her availability and susceptibility at times when she was left in his care, victim’s testimony concerning her father’s other acts of sexual intercourse with her was admissible under G.S. 8C-1, Rule 404, and the trial court did not abuse its discretion in failing to exclude such testimony under this rule. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Where defendant in a capital murder case testified that he had not robbed or injured the victim or anyone else, he “opened the door” to cross-examination designed to rebut his assertion, which produced evidence of prior instances of violent conduct by defendant that resulted in injury to others; there was no abuse of discretion in the refusal of the court to prohibit the cross-examination on the ground that the probative value of the evidence produced thereby was outweighed by the danger of unfair prejudice. State v. Darden, 323 N.C. 356, 372 S.E.2d 539, 1988 N.C. LEXIS 604 (1988).

Evidence detailing factual circumstances of prior conviction was neither excessive nor repetitious, and the trial judge exercised the necessary discretion to prevent the hearing from degenerating into a mini-trial of the prior crime. State v. Cummings, 323 N.C. 181, 372 S.E.2d 541, 1988 N.C. LEXIS 605 (1988), vacated, 494 U.S. 1021, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1441 (1990) (in light of) State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

Where victim testified defendant stated “they are never going to take me in again alive,” the statement was probative of defendant’s knowledge of his guilt, and defendant made no showing that the probative value of the statement was substantially outweighed by its prejudicial effect. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658, 1988 N.C. App. LEXIS 1067 (1988).

Where detective testified that defendant had told television crew that she had killed her son, the trial court did not err in admitting the detective’s testimony; the evidence was not unfairly prejudicial since officer had previously testified without objection that defendant stated “It’s my fault. I killed him.” State v. France, 94 N.C. App. 72, 379 S.E.2d 701, 1989 N.C. App. LEXIS 440 (1989).

There was no abuse of discretion where the trial judge admitted evidence of prior sexual misconduct since the judge allowed the evidence for a limited purpose and specifically instructed the jury before their deliberations that they could consider this evidence only for the limited purposes of considering (i), whether or not the defendant had the necessary intent required to commit the crimes charged and (ii), whether or not there existed in the mind of the defendant a plan, scheme, system or design involving the crimes charged in these cases; moreover, the evidence was not grossly shocking or so cumulative as to mislead the jury away from the offenses for which defendant was being tried. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, 1989 N.C. App. LEXIS 464 (1989).

In a prosecution for felonious possession of stolen property, testimony of son of property owner, who allegedly furnished defendant with the property, that he was indebted to defendant (for purchase of cocaine) was properly admitted to illustrate a possible motive, and its probative value substantially outweighed the danger of unfair prejudice against defendant. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).

In capital murder trial for the murder of a 10-year-old girl, this rule and G.S. 8C-1, Rule 404(b) did not require the exclusion of evidence concerning an earlier incident when defendant had masturbated in the presence of a three-year-old girl. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48, 1990 N.C. LEXIS 119 (1990), writ denied, 421 S.E.2d 360, 1992 N.C. LEXIS 569 (1992).

Evidence of defendant’s cocaine and marijuana possession occurring eight days after the last crime of sale of LSD and cocaine charged under G.S. 90-95 was relevant and had a probative value that substantially outweighed the danger of unfair prejudice. State v. Goldman, 326 N.C. App. 457, 389 S.E.2d 281.

In trial for first degree burglary and first degree rape, circumstantial evidence showing that defendant was the perpetrator of a rape committed five months earlier, which included both fingerprint evidence and pattern of perpetration similar to the crime charged at trial, demonstrated a potent, logical pertinence to the question of the assailant’s identity in the offense on trial; thus, under the circumstances of the crime charged and those of the offense admitted, for the purpose of proving identity under G.S. 8C-1, Rule 404(b) the trial court did not err in admitting evidence of the other, similar offense, which shared strong circumstantial indicia that defendant had been the perpetrator. State v. Jeter, 326 N.C. 457, 389 S.E.2d 805, 1990 N.C. LEXIS 161 (1990).

Murder victim’s statements to her son and sister regarding defendant’s threat revealed her then-existing fear of defendant, further explaining why she did not want defendant visiting her home. The prohibition of visits to the home by defendant was relevant to prove defendant’s state of mind, that is, that he knew he was entering victim’s home without consent. State v. Faucette, 326 N.C. 676, 392 S.E.2d 71, 1990 N.C. LEXIS 301 (1990).

Evidence that an arson defendant had previously solicited or attempted to solicit youths to commit other crimes was admissible under G.S. 8C-1, Rule 404(b) for the purpose of showing defendant’s intent, plan, design, or mode of operation and that its probative value outweighed its prejudicial effect. State v. Richardson, 100 N.C. App. 240, 395 S.E.2d 143, 1990 N.C. App. LEXIS 921 (1990).

The trial court did not err by admitting the finger of a murder victim burned beyond recognition, because its probative value as to the issue of identity of the victim was not substantially outweighed by any danger of unfair prejudice. State v. Eason, 328 N.C. 409, 402 S.E.2d 809, 1991 N.C. LEXIS 246 (1991).

Where a defendant showed, to the brother of a sexual-offense victim, condoms to be used “whenever they were going to make love,” the prosecution’s questions to defendant concerning the condoms were admissible to show proof of intent, preparation, plan, knowledge and absence of mistake. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

During murder prosecution, where victim was a young woman, rebuttal testimony by a woman previously assaulted by defendant, concerning the prior assault, was admissible to clarify defendant’s admission that he “beat this girl,” as the jury reasonably could infer, in light of the witness’ testimony, that defendant, in a “hysterical state” shortly after an aggressive sexual encounter with the victim, was referring to the victim rather than the witness when he made his admission. State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474, 1991 N.C. LEXIS 325 (1991).

In case in which defendant was convicted of second degree sexual offense and first degree burglary, evidence that defendant committed a similar break-in and sexual offense approximately one month earlier, about two blocks from victim’s house was admissible under G.S. 8C-1, Rule 404(b), to show intent, identity, common scheme, plan or design, and under this rule in that the probative value of the evidence substantially outweighed the danger of unfair prejudice to defendant’s case and the court’s charge to the jury correctly stated the limited purpose of the evidence. State v. Whitaker, 103 N.C. App. 386, 405 S.E.2d 911, 1991 N.C. App. LEXIS 760 (1991).

In a trial for assault with a deadly weapon in which defendant claimed self-defense, the trial court did not err in admitting evidence that prior to wounding the victim, defendant placed a gun to the head of a fourteen year old boy and questioned him regarding stolen cocaine. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322, 1991 N.C. App. LEXIS 1015 (1991).

In a case of first degree sexual offense and taking indecent liberties with two young boys, defendant’s statement to detective concerning prior incidents of taking indecent liberties with two young girls was relevant to show defendant’s unnatural lust, intent, or state of mind. State v. Reeder, 105 N.C. App. 343, 413 S.E.2d 580, 1992 N.C. App. LEXIS 236 (1992).

Tape recorded statements regarding defendant’s prior crimes including a statement from defendant’s own mouth that he had killed various people by sundry methods of his own volition in the past were sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in this rule. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95, 1992 N.C. LEXIS 670 (1992), overruled, State v. Lynch, 334 N.C. 402, 432 S.E.2d 349, 1993 N.C. LEXIS 337 (1993).

In capital murder trial, trial court did not err by permitting the jury to listen to an audio tape recording of the defendant’s telephone conversation with county sheriff because the tape recording was extremely probative. During the conversation, the defendant discussed problems he had experienced with his stepson, whom he shot, the defendant admitted the shooting of his stepson and the “other fellow” and stated that he told the “other guy” that he would “blow (them) away” if “the law comes out here.” State v. Daniel, 333 N.C. 756, 429 S.E.2d 724, 1993 N.C. LEXIS 242 (1993).

Trial court’s admission of the testimony of kidnapping victim regarding a prior incident during which defendant struck the murder victim in the back of the head with a pole and threatened to cut her throat with a butcher knife was upheld. State v. Kyle, 333 N.C. 687, 430 S.E.2d 412, 1993 N.C. LEXIS 243 (1993).

No error in the trial judge’s discretionary ruling allowing the introduction of a note indicating that the victim was scared of defendant because he had threatened to kill her with a gun earlier that evening into evidence at defendant’s first-degree murder trial. State v. Shoemaker, 334 N.C. 252, 432 S.E.2d 314, 1993 N.C. LEXIS 349 (1993).

The trial court did not err in admitting evidence that defendant had previously sexually assaulted another daughter pursuant to Rule 404(b) and this rule. State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812, 1994 N.C. App. LEXIS 160 (1994).

Court did not err in allowing testimony concerning defendant’s threats to the state’s principal witness, these threats were a strong indication of defendant’s awareness of his own guilt. State v. Mason, 337 N.C. 165, 446 S.E.2d 58, 1994 N.C. LEXIS 394 (1994).

Where, during her account of how she was sexually assaulted, the victim testified that defendant put his hand over her mouth and told her that if she told anybody what he was going to do he was going to “hurt her like he hurt Koda”, the trial court did not err in allowing defendant’s statement. State v. Robertson, 115 N.C. App. 249, 444 S.E.2d 643, 1994 N.C. App. LEXIS 622 (1994).

There was no error where the defendant was required to place over his head a stocking recovered from co-defendant’s car because the demonstration was relevant to aid the jury in assessing the credibility of the store clerk’s identification of defendant. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24, 1994 N.C. App. LEXIS 1079 (1994).

In a murder prosecution, evidence of a prior murder was properly admitted by the trial court to show identity, plan, and the existence of a common modus operandi between the two murders. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

Chain-of-events evidence leading up to murder was properly admitted to establish defendant’s intent and motive for the murders at issue, the evidence was more probative than prejudicial. State v. Rose, 339 N.C. 172, 451 S.E.2d 211, 1994 N.C. LEXIS 718 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818, 1995 U.S. LEXIS 4010 (1995).

In a prosecution for murder, testimony that a witness saw defendant dancing with the victim and that the witness called the police was relevant and properly admitted as evidence of defendant’s character. Also, evidence that witness called the police because he recognized defendant only after seeing on television that defendant had been charged with another murder was not irrelevant, inflammatory, or improperly prejudicial. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

Bloody clothing of a victim that is corroborative of the state’s case, is illustrative of the testimony of a witness, or throws any light on the circumstances of the crime is relevant and admissible evidence at trial. State v. Knight, 340 N.C. 531, 459 S.E.2d 481, 1995 N.C. LEXIS 378 (1995).

Questions on alcohol use were not so prejudicial as to be improper where incident took place in a club in which alcohol was served, the prosecutrix and another witness, as well as defendant, were questioned on cross-examination as to whether they were drinking that night and defendant was not singled out by the questioning but was subjected to the same type of limited questioning on alcohol use as were the other witnesses. State v. Alkano, 119 N.C. App. 256, 458 S.E.2d 258, 1995 N.C. App. LEXIS 463 (1995).

Trial court did not abuse its discretion by concluding that the probative value of the interwoven evidence of defendant’s confession to murder of stepson and involvement in her husband’s murder outweighed any prejudicial effect such evidence might have had against her. State v. White, 340 N.C. 264, 457 S.E.2d 841, 1995 N.C. LEXIS 260, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436, 1995 U.S. LEXIS 7941 (1995).

Trial court did not abuse its discretion in admitting a rape kit and emergency room records where they were relevant to corroborate the victim’s testimony that the defendant raped her and showed trauma to the victim’s vaginal area tending to establish penetration. State v. McKenzie, 122 N.C. App. 37, 468 S.E.2d 817, 1996 N.C. App. LEXIS 211 (1996).

Where victim testified that she loved her father before the alleged sexual abuse, but that she no longer loved him, the change in her affection was relevant to show that it is likely that he committed these acts. State v. Woody, 124 N.C. App. 296, 477 S.E.2d 462, 1996 N.C. App. LEXIS 1068 (1996).

Demonstration by doctor which used colored dowels and mannequins to illustrate testimony about the angles at which bullets entered the bodies of murder victims was probative, helpful, and not unfairly prejudicial. State v. Barnes, 345 N.C. 184, 481 S.E.2d 44, 1997 N.C. LEXIS 8 (1997), cert. denied, 522 U.S. 876, 118 S. Ct. 196, 139 L. Ed. 2d 134, 1997 U.S. LEXIS 5557 (1997), cert. denied, 523 U.S. 1024, 118 S. Ct. 1309, 140 L. Ed. 2d 473, 1998 U.S. LEXIS 1907 (1998) sub nom. State v. Chambers, 355 N.C. 287, 561 S.E.2d 262, 2002 N.C. LEXIS 251 (2002) sub nom. State v. Chambers, 355 N.C. 350, 562 S.E.2d 284, 2002 N.C. LEXIS 385 (2002), cert. denied, 362 N.C. 239, 660 S.E.2d 53, 2008 N.C. LEXIS 182 (2008).

Trial court did not abuse its discretion in admitting three letters which expressed the victim’s love for his wife and his pain and anguish that she had left him. State v. Moody, 345 N.C. 563, 481 S.E.2d 629, 1997 N.C. LEXIS 34 (1997), cert. denied, 522 U.S. 871, 118 S. Ct. 185, 139 L. Ed. 2d 125, 1997 U.S. LEXIS 5481 (1997), cert. denied, 355 N.C. 290, 561 S.E.2d 272, 2002 N.C. LEXIS 307 (2002).

Trial court did not abuse its discretion under this rule in determining the testimony of defendant’s girlfriends not to be unduly prejudicial. Holt v. Williamson, 125 N.C. App. 305, 481 S.E.2d 307, 1997 N.C. App. LEXIS 92 (1997).

Doctor’s statement about victim’s pain being “excessive” which followed testimony about victim’s extensive injuries in the upper abdomen, was not unfairly prejudicial. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, 1997 N.C. LEXIS 181, cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177, 1997 U.S. LEXIS 5901 (1997).

Evidence that victim, her family members, and a friend had threatened defendant’s life was relevant to explain why defendant had a gun and to explain defendant’s behavior and was not unfairly prejudicial. State v. Macon, 346 N.C. 109, 484 S.E.2d 538, 1997 N.C. LEXIS 200 (1997).

Evidence of prior instances when the murder defendant beat the victim was not more prejudicial than probative in showing the escalating nature of the attacks and to rebut the claim that the killing was accidental. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752, 1998 N.C. LEXIS 851 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310 (1999).

Where defendant and his stepson kidnapped two boys and put them in the trunk of a car while they murdered the boys’ father and then murdered the two boys, evidence regarding the murder of the father was so intertwined with evidence of the murder of the boys that it was admissible and was not an abuse of discretion. State v. Sidden, 347 N.C. 218, 491 S.E.2d 225, 1997 N.C. LEXIS 648 (1997), cert. denied, 523 U.S. 1097, 118 S. Ct. 1583, 140 L. Ed. 2d 797, 1998 U.S. LEXIS 2875 (1998).

Testimony from witness about her dreams and diary entry when first incarcerated was relevant under Rule 401 and admissible under this rule; however, references to later bad dreams were properly excluded. State v. Jones, 347 N.C. 193, 491 S.E.2d 641, 1997 N.C. LEXIS 656 (1997).

Court did not err in admitting doctor’s opinion that victims wound was consistent with the victim leaning over a chair when he was shot. State v. Cummings, 346 N.C. 291, 488 S.E.2d 550, 1997 N.C. LEXIS 480 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873, 1998 U.S. LEXIS 713 (1998).

The State had no alternative but to introduce evidence of defendant’s prior convictions in order to meet its burden of showing an element of possession of a firearm by a felon; thus, the trial did not commit error by the admission of the evidence. State v. Faison, 128 N.C. App. 745, 497 S.E.2d 111, 1998 N.C. App. LEXIS 161 (1998).

In a prosecution for stalking, evidence which related to events occurring before defendant was warned to stay a away from the victim was not irrelevant and prejudicial. State v. Ferebee, 128 N.C. App. 710, 499 S.E.2d 459, 1998 N.C. App. LEXIS 167 (1998).

Admission of a letter written by the defendant to the murder victim did not unfairly prejudice him, where he wrote the letter to the mother of his child promising not to physically harm her again, in that the letter tended to shed light on both his state of mind and the nature of his relationship with the victim, and although it implied that he had been violent with the victim in the past, it did not indicate that he would be in the future. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426, 1998 N.C. App. LEXIS 1001 (1998).

Testimony by the wife of an eyewitness to a murder that he was restless and unable to sleep prior to his identification of the defendant as the perpetrator but that he slept much better after doing so was admissible in the defendant’s prosecution for second degree murder, where the eyewitness’ credibility was in issue, and the wife’s testimony was relevant to the reliability of his identification, and the defendant failed to show any prejudice resulting from the testimony. State v. Smith, 130 N.C. App. 71, 502 S.E.2d 390, 1998 N.C. App. LEXIS 843 (1998).

The probative value of the murder victim’s statements to her friends concerning defendant’s abuse of the victim and his threats against her was not substantially outweighed by the danger of unfair prejudice. State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853, 1998 N.C. App. LEXIS 911 (1998), aff'd in part, modified, 350 N.C. 79, 511 S.E.2d 302, 1999 N.C. LEXIS 51 (1999).

Testimony by the murder victim’s mother was admissible in defendant’s murder prosecution, despite the defendant’s contention that the testimony was irrelevant, prejudicial evidence of prior bad acts, where the mother testified that the defendant cursed her when she went to talk to him, and further testified as to her daughter’s attempts to “work things out” herself, in reference to the defendant’s threats to kill her if she left him or refused to marry him. State v. Gary, 348 N.C. 510, 501 S.E.2d 57, 1998 N.C. LEXIS 323 (1998).

Evidence that defendant had been convicted in the shooting death of his first wife was properly argued to the jury as making more incredulous his claim of accident in the shooting death of his second wife, particularly as defendant had made incriminating remarks regarding his role in the death of his first wife to threaten his second one. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752, 1998 N.C. LEXIS 851 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310 (1999).

The probative value of testimony by experts that they had seen children with the same condition as the defendant’s child but never one in such poor condition outweighed any prejudicial effect in the mother’s prosecution for child abuse and involuntary manslaughter, as it was relevant to show that the defendant had not provided adequate care to the child. State v. Fritsch, 132 N.C. App. 262, 511 S.E.2d 325, 1999 N.C. App. LEXIS 120 (1999), aff'd in part and rev'd in part, 351 N.C. 373, 526 S.E.2d 451, 2000 N.C. LEXIS 241 (2000).

The decedent/wife’s statements that her husband was jealous and had repeatedly threatened to kill her were admissible, although arguably no more than recitations of fact, where the facts that she recited tended to show her state of mind as to her marriage, indicated her relationship with the defendant and, therefore, were relevant under this rule, and rebutted testimony by the defendant that they had a good marriage. State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700, 2000 N.C. App. LEXIS 313 (2000).

Court properly allowed testimony about a letter written by defendant to rape victim’s mother who later destroyed it, because any prejudicial effect the letter may have had was outweighed by its probative value. State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247, 1999 N.C. App. LEXIS 406 (1999).

Where State introduced evidence of defendant’s assaultive behavior prior to a brain injury which he claimed partially caused his violence, the court correctly determined that the probative value of the evidence of defendant’s prior violent acts was not substantially outweighed by the danger of unfair prejudice under this rule. Dobson v. Harris, 1999 N.C. App. LEXIS 883 (N.C. Ct. App. Aug. 17, 1999).

Evidence of defendant’s participation in several robberies was properly admitted in murder trial under G.S. 8C-1, Rule 404 to corroborate the accounts of other witnesses or for the purpose of showing defendant’s motive, intent or plan to commit the instant crime and presented with limiting jury instructions could not fairly be characterized as arbitrary and unreasonable under this rule. State v. Hall, 134 N.C. App. 417, 517 S.E.2d 907, 1999 N.C. App. LEXIS 812 (1999).

Evidence of a prior robbery and a prior attempted robbery was correctly admitted after court determined that the evidence was relevant for some purpose other than to show defendant’s propensity to commit this type of crime, as required by G.S. 8C-1, Rule 404, and that it was more probative than prejudicial, as required by this rule. State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328, 1999 N.C. App. LEXIS 981 (1999).

Evidence of defendant’s molestation of a fourth sister had probative value to show the existence of intent, plan or design which, in light of the direct evidence presented by the other three sisters/victims and the investigator, was not outweighed by any unfair prejudice. State v. Owens, 135 N.C. App. 456, 520 S.E.2d 590, 1999 N.C. App. LEXIS 1145 (1999).

Witness testimony regarding statements made by murder victim, regarding the presence of drugs and money in the hotel room where she was staying with a drug dealer, were admissible to show what the hearer did based on the victim’s statements. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633, 2000 N.C. App. LEXIS 1266 (2000), writ denied, 353 N.C. 392, 547 S.E.2d 33, 2001 N.C. LEXIS 46 (2001).

Statements made by victim approximately six months prior to murder, to the effect that she and defendant were not getting along well, that she no longer wanted to be married, that if defendant had not left by May, 1997, she would “push the issue” for him to leave, that defendant told her that one day he would come home and find her dead with her throat cut, and that she believed defendant wanted her to sell her house so he could get some of her money, were admissible under this rule. State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629, 2000 N.C. App. LEXIS 1032 (2000).

The court rejected defendant state trooper’s argument that evidence of his alleged crimes, wrongs, and acts was admitted in violation of the Rules of Evidence and his due process rights; testimony that defendant asked one witness to ride in the floor of his patrol car before the shooting, that another witness and defendant had violated or circumvented numerous automobile title transfer procedures, and that, upon searching defendant’s patrol car, a third witness had found licenses and registrations that should have been turned over to a magistrate under highway patrol policy, was admissible to chronicle the murder, and its probative value was not outweighed by the danger of prejudice. State v. Parker, 2000 N.C. App. LEXIS 1107 (N.C. Ct. App. Oct. 3, 2000), op. withdrawn, sub. op., 140 N.C. App. 169, 539 S.E.2d 656, 2000 N.C. App. LEXIS 1218 (2000).

The description of a pocketknife which the defendant usually carried with him and the admission of a hacksaw frame and several hacksaws were not unfairly prejudicial to the defendant so as to require exclusion pursuant to this section. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713, 2000 N.C. LEXIS 895 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5838 (2001).

Where arresting officer’s testimony about defendant’s demeanor shortly after committing murder was probative of the circumstances surrounding the murder and defendant’s intent, the trial court did not abuse its discretion in permitting the testimony and ruling that the probative value of the testimony was not substantially outweighed by unfair prejudice. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596, 2001 N.C. LEXIS 942 (2001).

Where defendant was accused of inviting teenage girls to his home for parties, giving them alcohol and drugs, and photographing them as they undressed, the trial court did not err in admitting into evidence defendant’s prior convictions for similar conduct, as the acts for which defendant was on trial were sufficiently similar to the previous acts, and the prior incidents, occurring 10 to 15 years earlier, were not too remote in time as to no longer be more probative than prejudicial. State v. Patterson, 149 N.C. App. 354, 561 S.E.2d 321, 2002 N.C. App. LEXIS 215 (2002).

Murder defendant was not prejudiced by the testimony of defendant’s case manager as to defendant’s frustration and desire to leave a homeless shelter and that defendant was irritated and argumentative. State v. Williams, 355 N.C. 501, 565 S.E.2d 609, 2002 N.C. LEXIS 538 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808, 2003 U.S. LEXIS 128 (2003).

Failure to exclude evidence, under G.S. 8C-1, Rule 403, that a defendant used drugs shortly before a fire he was accused of starting was not an abuse of discretion. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41, 2002 N.C. App. LEXIS 1276 (2002), aff'd in part, 357 N.C. 235, 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

In defendant’s trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court (1) properly admitted the videotaped statement that defendant’s wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant’s wife refused to testify for the State at defendant’s trial, (2) properly admitted letters one of defendant’s co-conspirators wrote to a girlfriend urging her to lie about her involvement in the co-conspirator’s attempt to conceal evidence of the crime, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and (3) properly admitted evidence of similar crimes that defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640, 2003 N.C. App. LEXIS 178 (2003), cert. denied, 358 N.C. 547, 2004 N.C. LEXIS 1107 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784, 2005 U.S. LEXIS 565 (2005).

Testimony by a discharged employee’s wife that the wife’s husband just wanted to be heard and that the wife knew until the day that the wife died that her husband would not have lost the husband’s job, if the husband had been heard, was probative on the issues of emotional distress and mental anguish, and was not substantially outweighed by the danger of unfair prejudice; exclusion of evidence was left to the sound discretion of the trial court, and to show an abuse of that discretion required a showing that the decision was so arbitrary that it could not have been the product of a reasoned decision. Hummer v. Pulley, Watson, King Lischer, P.A., 157 N.C. App. 60, 577 S.E.2d 918, 2003 N.C. App. LEXIS 375 (2003).

Where defendant had sexually explicit conversations with a 15-year-old former karate student in violation of G.S. 14-202.1, the trial court’s admission of evidence of defendant’s subsequent conduct with another student where there were certain similarities was not prejudicial under the circumstances. State v. Every, 157 N.C. App. 200, 578 S.E.2d 642, 2003 N.C. App. LEXIS 538 (2003).

Trial court did not err in denying the defendant’s motion in limine seeking to exclude from cross-examination his prior conviction for malicious wounding, as the trial court had no discretion under G.S. 8C-1, Rule 609 to conduct a balancing test as the admission of the evidence was mandatory under Rule 609(a) and a balancing test was only required under Rule 609(b) if the conviction was more than 10 years old, which it was not. State v. Brown, 357 N.C. 382, 584 S.E.2d 278, 2003 N.C. LEXIS 834 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1447, 158 L. Ed. 2d 106, 2004 U.S. LEXIS 1276 (2004), writ denied, 361 N.C. 358, 646 S.E.2d 121, 2007 N.C. LEXIS 426 (2007).

Trial court did not abuse its discretion in admitting into evidence a rag and scientific analysis of it, which revealed the victim’s blood and traces of defendant’s semen, as its probative value was not substantially outweighed by its prejudicial effect under G.S. 8C-1, N.C. R. Evid. 403; the evidence was relevant to defendant’s claim that he had no knowledge of the kidnapping, corroborated an accomplice’s testimony that defendant participated in the crimes, and the trial court properly stated several times that there was no evidence of sexual assault, and instructed the jury that the rag and the test results could not be used as evidence of a sexual assault given that there was no other evidence that any sexual assault occurred. State v. Sims, 161 N.C. App. 183, 588 S.E.2d 55, 2003 N.C. App. LEXIS 2044 (2003).

Defendant’s conviction for second-degree sexual assault was affirmed because the defendant’s videotaped statement made in the back of a patrol car during a conversation with an officer was admissible as the defendant was not being interrogated by the officer at the time, so Miranda warnings were not required, the statement was relevant to the crime, and the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. State v. Gantt, 161 N.C. App. 265, 588 S.E.2d 893, 2003 N.C. App. LEXIS 2055 (2003).

Testimony from an inmate that shared a jail cell with one of two defendants accused of robbery, burglary, and kidnapping that one defendant told him that defendants were going to claim that they were forced to commit the crimes was properly admitted because the evidence tended to prove that defendant and his co-defendant concocted a scheme to avoid liability for their criminal actions; furthermore, the evidence was not unfairly prejudicial because defendant failed to demonstrate how the testimony was so unfair that a different result at trial would have been likely. State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898, 2004 N.C. App. LEXIS 181 (2004).

Evidence of events occurring after defendant left a patrol car was not inadmissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b) as the evidence was part of a single, continuing transaction beginning with defendant’s insertion of herself into the events at a school and continuing through her arrest; evidence of what occurred after she left the patrol car was part of the chain of events leading to defendant’s arrest and, therefore, was admissible, and the evidence of events occurring after defendant left the patrol car provided added evidentiary support for the charge of obstructing and delaying an officer. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

Audiotape of a conversation defendant had with his wife and stepson, which the wife’s relatives found 10 months after the wife and stepson were killed, was properly authenticated, and the state supreme court held that the trial court did not err when it admitted the tape for the limited purpose of showing defendant’s malice, intent, and ill will towards the victims. State v. Jones, 358 N.C. 330, 595 S.E.2d 124, 2004 N.C. LEXIS 341, cert. denied, 543 U.S. 1023, 125 S. Ct. 659, 160 L. Ed. 2d 500, 2004 U.S. LEXIS 8022 (2004).

Defendant’s threats to a holding cell officer that he “already killed one” and “I got one up under my belt” could have been interpreted as statements of guilt and used as direct evidence to prove that defendant acknowledged guilt in the death of his victim, as what was “up under his belt” was a human life, that he had already “killed one” was a woman like the officer, and “belt” was meant to imply that defendant had a black belt; accordingly, the statements were relevant and they were not subject to exclusion. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724, 2004 N.C. LEXIS 669 (2004), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1595 (2005).

Defendant’s objection to recorded phone calls with his mother based on N.C. R. Evid. 403 was not preserved for appellate review because the objection referred to the evidence as a whole; it did not request anything but a suppression of the evidence in its entirety, and the evidence that was allegedly inflammatory was not identified. State v. Price, 170 N.C. App. 57, 611 S.E.2d 891, 2005 N.C. App. LEXIS 895 (2005).

Although defendant failed to preserve an evidentiary issue for appellate review, pursuant to G.S. 8C-1-103(a)(2), a review under G.S. 8C-1-403 indicated that the probative value of a letter that he wrote to his daughter, who was the victim of his unlawful sexual conduct, was not outweighed by the potential prejudice, as the meaning and intent of the letter were for the jury to decide. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97, 2005 N.C. App. LEXIS 1794 (2005).

Trial court did not err by admitting without editing or redacting letters that defendant and his accomplice wrote into evidence, as the letters were relevant under G.S. 8C-1-401 and G.S. 8C-1-402, and the probative value of the letters was not outweighed by prejudice under G.S. 8C-1-403. State v. Curry, 171 N.C. App. 568, 615 S.E.2d 327, 2005 N.C. App. LEXIS 1312 (2005).

Defendant was not prejudiced by the trial court admitting into evidence testimony as to defendant’s prior acts of being a passenger in a car where an officer smelled marijuana and being found asleep in a car with a bag of marijuana and a scale in plain view to support the case against defendant and his co-defendants for conspiring to possess, manufacture, and distribute marijuana, as the evidence showed that defendant had a propensity to commit the crime. State v. Harrington, 171 N.C. App. 17, 614 S.E.2d 337, 2005 N.C. App. LEXIS 1189 (2005).

Trial court properly admitted various evidence in defendant’s trial pursuant to G.S. 8C-1, Rule 404(b), because the various evidence was not admitted to prove the character of defendant in order to show that he acted in conformity therewith and was not overly prejudicial. State v. Matthews, 175 N.C. App. 550, 623 S.E.2d 815, 2006 N.C. App. LEXIS 138 (2006).

In a drug case, the testimony of a probation officer regarding defendant’s residence was admissible under G.S. 8C-1, Rule 404(b) because they evidence was only used to establish that defendant occupied a dwelling where drugs were located; moreover, the danger of unfair prejudice was outweighed by the probative value of the evidence. State v. Shine, 173 N.C. App. 699, 619 S.E.2d 895, 2005 N.C. App. LEXIS 2306 (2005).

Use of the descriptive term, “the Last Supper tapestry,” by witnesses and the prosecution to describe a tapestry on the victim’s wall was proper, and the trial court did not abuse its discretion by so ruling; nothing in the record suggested that the description was used excessively and solely to inflame the passions and prejudices of the jury against defendant. As a result, the trial court’s ruling was not so arbitrary that it could not have been the result of a reasoned decision. State v. Campbell, 359 N.C. 644, 617 S.E.2d 1, 2005 N.C. LEXIS 842 (2005).

Testimony of a State witness, made after the trial judge conducted voir dire of the witness, was properly admitted as it was relevant to show plan, modus operandi, and identity. Admission of the evidence was upheld under G.S. 8C-1-403 since it did not have an undue tendency to suggest a decision on an improper basis when offered for the limited purpose of showing a common plan or scheme. State v. Summers, 177 N.C. App. 691, 629 S.E.2d 902, 2006 N.C. App. LEXIS 1188 (2006).

Evidence that defendant who shot a police officer with a shotgun possessed an assault rifle was relevant and was not more prejudicial than probative; evidence showed why defendant was in a field and why he used the shotgun rather than the rifle, and it was also highly probative of defendant’s motive for the shooting: not wanting the victim to discover that defendant was violating his probation by possessing firearms. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258, 2006 N.C. App. LEXIS 1637 (2006).

Defendant’s statement concerning prison while defendant was fleeing from police was admissible because the trial court’s ruling was the product of a reasoned decision in the weighing of the probative value of the testimony against its prejudicial effect. State v. Locklear, 180 N.C. App. 115, 636 S.E.2d 284, 2006 N.C. App. LEXIS 2248 (2006).

In defendant’s murder trial, the trial court did not err in admitting evidence pursuant to G.S. 8C-1-403 regarding an individual close to defendant who 17 years prior to the victim’s death was found dead at the bottom of a set of stairs; there was little doubt that the evidence of the individual’s death was useful to the State for challenging defendant’s sole defense, namely, that the victim’s death was an accident. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594, 2006 N.C. App. LEXIS 1980 (2006), aff'd, 361 N.C. 587, 652 S.E.2d 216, 2007 N.C. LEXIS 1101 (2007).

In defendant’s prosecution for robbery with a dangerous weapon and first-degree kidnapping, evidence of defendant’s prior armed robbery conviction and the facts underlying that conviction were properly admitted under G.S. 8C-1-404(b) and G.S. 8C-1-403 because, inter alia: (1) the evidence of defendant’s involvement in another robbery tended to show defendant was one of three men involved in a similar pattern of robberies occurring over a short period of time; and (2) the robbery being prosecuted shared similarities with one of the other robberies defendant was convicted of because, in each of the robberies, a perpetrator brandished a gun at the victims at public establishments, demanded money, fired a shot, stole property of others, and fled the scene. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Detective’s statements as to other businesses that had reported break-ins was not inadmissible hearsay as: (1) defendant’s objection was overruled only as to what the detective did, and the evidence offered was both relevant, in that it explained the chain of events in the police investigation, and was not hearsay as it precluded the further admission of statements regarding the reported break-ins; (2) the statements were offered to explain the chain of events and were not offered for the truth of the matter asserted; and (3) the probative value of the statements was not substantially outweighed by their prejudicial effect as the detective’s testimony did not directly accuse defendant of other crimes, and was not offered to prove defendant’s conformity with character to commit wrongs, but was offered to explain the sequence of events. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250, 2007 N.C. App. LEXIS 1733 (2007).

Admission of the transcript of defendant’s guilty plea to three robberies that occurred about two months before the instant event was not prejudicial; the document was more than evidence of a bare conviction but was an admission that defendant participated in the robberies, a limiting instruction was given, and the actual judgment was not admitted in evidence. State v. Brockett, 185 N.C. App. 18, 647 S.E.2d 628, 2007 N.C. App. LEXIS 1720 (2007), writ denied, 379 N.C. 163, 863 S.E.2d 591, 2021 N.C. LEXIS 1039 (2021).

Trial court properly allowed defendant’s alleged co-conspirator to testify that defendant and another person had sent him threats and to read to the jury three threatening letters that he testified he had received while in prison, as defendant could not show that without them a different result would likely have been reached, and thus exclusion was not required under N.C. R. Evid. 403. State v. Carter, 186 N.C. App. 259, 650 S.E.2d 650, 2007 N.C. App. LEXIS 2089 (2007).

Evidence that the murder victim’s last words were “I’m not scared of you. I’m a Christian,” was admissible because it was offered not to show the good character of the victim, but instead it was offered as circumstantial evidence of defendant’s state of mind when he was approaching the victim before he shot and killed the victim. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569, 2007 N.C. App. LEXIS 2192 (2007).

In defendant’s criminal trial on a variety of charges, arising from a vehicular incident that resulted in deaths, a trial court properly allowed admission of testimony regarding defendant’s prior failure to take a breath test and defendant’s conviction for driving while intoxicated, as such was relevant under N.C. R. Evid. 401 and 402 to show defendant’s knowledge that the driver’s license was suspended and to show malice, which was an element of one of the charged offenses; further, the evidence was properly admitted for the purpose of showing defendant’s intent and it was not unfairly prejudicial under N.C. R. Evid. 404(b) and 403. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299, 2007 N.C. App. LEXIS 2253 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214, 2009 N.C. LEXIS 823 (2009).

Trial court neither erred nor abused its discretion by allowing witnesses to testify to the victim’s statements concerning her and defendant’s financial situation and defendant’s alleged acts of domestic violence against the victim. Furthermore, the evidence of the victim’s state of mind was relevant and related directly to the victim’s relationship with defendant before she was killed and his motive, intent, plan, or absence of mistake or accident in the victim’s death. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688, 2007 N.C. App. LEXIS 2267 (2007).

Trial court did not abuse its discretion by permitting testimony of evidence of defendant’s financial dealings with other people, depletion of the victim’s bank accounts, violent acts toward the victim, and his adulterous relationships because the evidence tended to show defendant’s motive, intent, preparation, plan, absence of mistake, and knowledge under N.C. R. Evid. 404(b). Moreover, the relevancy of the evidence outweighed its danger of unfair prejudice under N.C. R. Evid. 403. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688, 2007 N.C. App. LEXIS 2267 (2007).

Evidence of a later incident between defendant and a witness was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) and 403 as: (1) the later incident occurred 20 days after the incident with a victim, (2) the two incidents occurred in the early morning hours, (3) defendant told both victims that defendant’s vehicle would not start, (4) defendant told the victim defendant would let the victim live if the victim stopped struggling, and told the witness that the defendant would kill the witness if the witness made any noise, and (5) defendant tried to restrain and silence the victim and the witness, and defendant ceased defendant’s efforts when the victim and the witness forcefully resisted defendant’s advances; the prejudicial effect of the witness’s testimony did not substantially outweigh its probative value. State v. Simpson, 187 N.C. App. 424, 653 S.E.2d 249, 2007 N.C. App. LEXIS 2431 (2007).

On appeal from convictions including rape and kidnapping, the trial court did not err or abuse its discretion in admitting into evidence a receipt for pornographic movies that listed the movie titles, and for admitting evidence of defendant’s alleged prior acts of domestic violence against the victim, as: (1) defendant failed to state his grounds for objection to the admission of physical evidence; (2) the evidence was relevant; (3) the prior acts evidence was properly admitted to show defendant’s motive, intent or purpose, opportunity, and plan; (4) defendant failed to request a limiting instruction at the time of the admission of the receipt, and failed to request that the trial court redact the movie titles from the receipt; and (5) even assuming that defendant’s general objection preserved the matter for appellate review, the record revealed that the admission of the receipt into evidence did not prejudice defendant. State v. Daniels, 189 N.C. App. 705, 659 S.E.2d 22, 2008 N.C. App. LEXIS 711 (2008), dismissed, 203 N.C. App. 350, 691 S.E.2d 78, 2010 N.C. App. LEXIS 558 (2010).

Trial court did not err when it overruled defendant’s objection to the admission of a red notebook containing gang information found in defendant’s brother’s room. As the jury did not find that gang involvement was an aggravating factor of the crime, there was no undue prejudice from the introduction of the notebook into evidence. State v. Beatty, 189 N.C. App. 464, 658 S.E.2d 508, 2008 N.C. App. LEXIS 651 (2008).

Victim’s testimony regarding the shiny object in defendant’s hand was relevant to the first-degree rape charge and admission of the testimony was not unfairly prejudicial; any question as to the testimony’s speculative nature went to the weight of the evidence. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898, 2008 N.C. App. LEXIS 1509 (2008), aff'd, 363 N.C. 118, 678 S.E.2d 658, 2009 N.C. LEXIS 231 (2009).

Admission of the testimony of three witnesses that the alleged assault against each witness took place within one year of the attack on a victim, and that defendant used substantially the same method of restraining each witness during the attack, employing defendant’s greater size and strength, limiting the witness’s breathing, making dire threats against the witness, and calling each witness after the attack was not plain error under N.C. R. App. P. 10(c)(4), and was proper under G.S. 8C-1, N.C. R. Evid. 403 and 404(b). State v. Simmons, 191 N.C. App. 224, 662 S.E.2d 559, 2008 N.C. App. LEXIS 1188 (2008).

In equitably distributing the martial property between a former husband and a former wife, a trial court did not abuse its discretion in admitting evidence of the husband’s criminal activity because the majority of the trial court’s findings of fact concentrated on the extent and nature of the damage the husband’s actions inflicted on the marital home; the trial court referred to the husband’s treatment of the wife only as necessary to explain the sequence of events. Troutman v. Troutman, 193 N.C. App. 395, 667 S.E.2d 506, 2008 N.C. App. LEXIS 1803 (2008).

Trial court did not err in not redacting questions in a DVD recording of defendant’s police interview containing purported statements made by non-testifying witnesses on the ground that the probative value was substantially outweighed by its unfairly prejudicial effect and violated G.S. 8C-1, N.C. R. Evid. 403. The trial court sufficiently instructed the jury as to how it was to treat the statements attributed to non-testifying third parties, and the questions to which defendant objected comprised only a small portion of defendant’s one-hour interview. State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546, 2009 N.C. App. LEXIS 805 (2009).

Testimony concerning a prior assault on another victim was a major identity piece of evidence, relevant to showing that defendant was in possession of and fired a gun that was used in the subject murder less than 48 hours before the murder, and thus, its probative value outweighed any prejudice to defendant. State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453, 2009 N.C. App. LEXIS 456 (2009).

Although defendant asserted that even assuming arguendo the demonstration was relevant, it should still have been excluded because it was both misleading and unfairly prejudicial under G.S. 8C-1, N.C. R. Evid. 403, defendant’s argument was without merit because the State laid a proper foundation to establish the relevancy of the doctor’s shaken baby syndrome demonstration, and thus, that demonstration was neither misleading to the jury nor unfairly prejudicial to defendant. State v. Anderson, 200 N.C. App. 216, 684 S.E.2d 450, 2009 N.C. App. LEXIS 1611 (2009).

In a case in which defendant was convicted by a jury on two counts first-degree murder on the bases of felony murder and of malice, premeditation and deliberation and, after a capital sentencing proceeding, he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, defendant argued unsuccessfully on appeal that the trial court’s decision to admit G.S. 8C-1, N.C. R. Evid. 404(b) evidence about his 1995 assault on his estranged wife, one of the murder victims, unfairly prejudiced him in violation of G.S. 8C-1, N.C. R. Evid. 403. The trial court admitted evidence of the 1995 assault for the purposes of showing motive, malice, hatred, ill-will and intent; that evidence had probative value for all of those purposes and was properly admissible. State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437, 2009 N.C. App. LEXIS 1613 (2009).

Evidence related to a murder committed 32 months earlier, which was admitted at defendant’s trial for a second murder for purposes of showing defendant’s knowledge, plan, opportunity, intent, modus operandi, and motive to kill, was not so prejudicial as to be inadmissible under G.S. 8C-1, N.C. R. Evid. 403. State v. Locklear, 363 N.C. 438, 681 S.E.2d 293, 2009 N.C. LEXIS 814 (2009).

Witness’s redirect testimony explained why she removed the guns and drugs from her apartment and this testimony showed that she, acting alone, made the decision to hide the guns because she knew defendant had left the apartment with firearms and under the influence of drugs and, as a result of what she had seen and heard, feared that he had shot someone. This information explaining why she acted as she did was within the witness’s personal knowledge and was admissible to clarify evidence elicited by defense counsel on cross-examination; the witness’s explanation of her motivation was not an opinion as to defendant’s guilt. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174, 2009 N.C. LEXIS 722 (2009), cert. denied, 559 U.S. 1074, 130 S. Ct. 2104, 176 L. Ed. 2d 734, 2010 U.S. LEXIS 3379 (2010).

Trial court did not abuse its discretion in admitting the evidence of a mannequin’s head and a newly-purchased couch to refute defendant’s version of the events where (1) the police were not performing an experiment with the mannequin head and couch, but rather were using the model to “illustrate or explain” the physical conditions existing at the time of the shooting, including the position of the victim’s head and the path and direction of the bullet; and (2) the demonstration was probative of premeditation because it related to whether defendant was standing at the middle of the couch, resting her hands on the back of the couch, as she claimed, or whether she was standing over the victim’s head near the armrest when the gun discharged. State v. Witherspoon, 199 N.C. App. 141, 681 S.E.2d 348, 2009 N.C. App. LEXIS 1376 (2009).

Introduction of the prior inconsistent statements did not violate G.S. 8C-1-403 because they were introduced to impeach material testimony and thus had probative value, but were not unduly prejudicial. State v. Gabriel, 207 N.C. App. 440, 700 S.E.2d 127, 2010 N.C. App. LEXIS 1980 (2010).

Defendant offered no evidence suggesting that the trial court abused its discretion in admitting the unsworn out-of-court statement a witness made to the police because defendant failed to present evidence showing that the probative value of the witness’s statement was substantially outweighed by the risk of unfair prejudice; mere prejudice is not the determining factor in the G.S. 8C-1-403 balancing test, but rather the trial judge must determine whether the unfair prejudice substantially outweighs the probative value. State v. Walters, 209 N.C. App. 159, 703 S.E.2d 493, 2011 N.C. App. LEXIS 55 (2011).

Trial court did not err by admitting allegedly irrelevant evidence that defendant had been selling drugs in the vicinity of a shooting; demonstrating gang affiliation and the selling of illegal drugs was relevant to show that defendant could have had a different objective in mind when the altercation took place and could refute defendant’s claim of self-defense. State v. Kirby, 206 N.C. App. 446, 697 S.E.2d 496, 2010 N.C. App. LEXIS 1553 (2010).

Testimony of an earlier robbery victim was relevant to an armed robbery claim against defendant because it made the existence of several material facts more probable or less probable than they would have been without the evidence; facts that a truck had been used by two people in the commission of a robbery with a deadly weapon at an ATM earlier that evening was relevant to the jury’s determination of whether defendant, who was found driving the truck, was involved in a later ATM robbery scheme, and the probative value was not outweighed by the danger of unfair prejudice to defendant. State v. Hill, 210 N.C. App. 170, 706 S.E.2d 799, 2011 N.C. App. LEXIS 305, aff'd, 365 N.C. 273, 715 S.E.2d 841, 2011 N.C. LEXIS 814 (2011).

Defendant was not prejudiced when the trial court allowed a Spanish-speaking juror to interpret a conversation without relying on the certified translations because defendant did not argue that the written translation differed in any way from the recording and defendant failed to identify how a Spanish-speaking juror might interpret the recording different from the written translation. State v. Gomez, 209 N.C. App. 611, 705 S.E.2d 421, 2011 N.C. App. LEXIS 233 (2011).

In a child rape case, a court properly admitted a pornographic book under G.S. 8C-1, N.C. R. Evid. 403, as there was nothing to show that the jury convicted defendant solely out of disgust for the content, and the jury’s potential disapproval of defendant’s possession of the book did not substantially outweigh the strong probative value. State v. Brown, 211 N.C. App. 427, 710 S.E.2d 265, 2011 N.C. App. LEXIS 837 (2011), aff'd, 365 N.C. 465, 722 S.E.2d 508, 2012 N.C. LEXIS 123 (2012).

In a trial for robbery with a dangerous weapon, the trial court did not err in admitting evidence relating to defendant’s break-in at a gun store, as the bloody clothing connected defendant to the break-in and was necessary to provide the jury was a complete narrative of the events; the evidence was not unfairly prejudicial. State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573, 2011 N.C. App. LEXIS 1899 (2011).

Any prejudice in the admission of evidence of defendant’s financial hardship and misconduct in the years prior to the death of the victim, defendant’s wife, was outweighed by the probative value in proving defendant’s motive and cured by the limiting instruction given. State v. Britt, 217 N.C. App. 309, 718 S.E.2d 725, 2011 N.C. App. LEXIS 2428 (2011).

Evidence presented at a suppression hearing was sufficient to link defendant to a later break-in, including DNA evidence collected at the scene of the second break-in. The crimes were substantially similar in that a window at a convenience store in Charlotte was broken, cigarettes were taken, the crimes occurred a short time apart and at the same time of day, and defendant’s blood was found at both scenes; they were therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). Also, the evidence was relevant on the issue of whether defendant committed the charged crime, pursuant to G.S. 8C-1, N.C. R. Evid. 401, and was not prejudicial. State v. Matthews, 218 N.C. App. 277, 720 S.E.2d 829, 2012 N.C. App. LEXIS 54 (2012).

In a prosecution for uttering a forged instrument (G.S. 14-120) and attempting to obtain property by false pretenses (G.S. 14-100), the trial court did not err in admitting a second forged check under G.S. 8C-1, N.C. R. Evid. 404(b), as it was relevant to undercut defendant’s explanations for possessing the check at issue and establish his intent to defraud, and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under G.S. 8C-1, N.C. R. Evid. 403. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163, 2012 N.C. App. LEXIS 515 (2012), writ denied, 367 N.C. 790, 766 S.E.2d 670, 2014 N.C. LEXIS 1139 (2014).

In a prosecution for indecent liberties with a child and first-degree sexual offense, the admission of defendant’s prior sexual acts with a minor did not offend G.S. 8C-1, N.C. R. Evid. 403 because (1) a proper limiting instruction was given, and (2) excluding testimony about an insufficiently similar prior act showed the trial court carefully considered the evidence. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012).

Admission of evidence that defendant possessed credit cards of persons other than the victims in the instant case to show intent, motive, and plan was not erroneous. State v. Jones, 223 N.C. App. 487, 734 S.E.2d 617, 2012 N.C. App. LEXIS 1314 (2012), aff'd, 367 N.C. 299, 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014).

Probative value of prior bad acts evidence outweighed any unfair prejudice, as testimony of the victim and prior victim showed some similarities and a progression of sexual abuse, all three women were members of defendant’s family, all were prepubescent girls, and defendant molested them at his home. State v. Barnett, 223 N.C. App. 450, 734 S.E.2d 130, 2012 N.C. App. LEXIS 1302 (2012).

Defendant’s statement that he touched 5 to 10 other boys was an admission under G.S. 8C-1, N.C. R. Evid. 801(d)(A) and 404(b) to show his identity as the perpetrator and his intent as the facts were similar to the charges of touching two young boys here; defendant connected the acts as a continuous pattern by stating that he had a problem with touching young boys, and had had this problem since he was young, and the evidence was properly allowed under G.S. 8C-1, N.C. R. Evid. 403. State v. Graham, 223 N.C. App. 150, 733 S.E.2d 100, 2012 N.C. App. LEXIS 1195 (2012).

Trial court did not err in allowing an officer to testify that he saw cigarettes at defendant’s house because the testimony was relevant since it tended to throw light upon whether defendant was the perpetrator of the crime; a convenience store clerk testified that the two men who robbed the store demanded cigarettes. State v. Stokes, 225 N.C. App. 483, 738 S.E.2d 208, 2013 N.C. App. LEXIS 130 (2013).

Trial court did not err, in defendant’s trial for cyber-bullying, by admitting defendant’s statements about Christianity because the comments were relevant to show defendant’s intent to intimidate or torment the victim and were also relevant to show the chain of events leading up to the victim’s parent contacting law enforcement. The trial court weighed the probative value of the comments against any prejudicial effect and properly ruled it was admissible, while defendant failed to show prejudice by the admission of the comments. State v. Bishop, 241 N.C. App. 545, 774 S.E.2d 337, 2015 N.C. App. LEXIS 522 (2015), cert. dismissed, 775 S.E.2d 834, 2015 N.C. LEXIS 729 (2015), rev'd, 368 N.C. 869, 787 S.E.2d 814, 2016 N.C. LEXIS 440 (2016).

This rule did not bar the admission of evidence of defendant’s breaking or entering a house on the same night that he entered the church because it tended to show that defendant’s intent in entering the church was to commit a larceny therein and tended to contradict defendant’s later testimony that he entered the church for sanctuary. State v. Campbell, 243 N.C. App. 563, 777 S.E.2d 525, 2015 N.C. App. LEXIS 870 (2015), rev'd, 369 N.C. 599, 799 S.E.2d 600, 2017 N.C. LEXIS 400 (2017).

Trial court did not err by admitting testimony from several former high school wrestlers that defendant utilized various hazing techniques against his wrestlers because it was highly probative of defendant’s intent, plan, or scheme to carry out the crimes charged against him and the State’s elicitation of the testimony was not excessive. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45, 2015 N.C. App. LEXIS 1037 (2015).

Trial court did not err by overruling defendant’s objections under this rule to the admission of the consensual sexual activity between defendant and his wife because the wife’s testimony was relevant to the victim’s allegations as it showed a common scheme or plan and was sufficiently similar to the victim’s allegations of sexual abuse. The probative value of the evidence was not outweighed by the danger of undue prejudice because it was of great probative value and was not so sensitive to be potentially inflammatory to the jury. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820, 2016 N.C. App. LEXIS 1172 (2016).

Officer’s testimony that the officer observed defendant leaving a house being investigated for drugs and defendant had a bad reputation in the neighborhood was admissible because (1) the testimony showed the officer’s familiarity with defendant and explained why the officer paid attention to defendant, which was relevant to the officer’s identification of defendant, (2) the unnecessary drug reference did not affect the jury’s verdict, and (3) the probative value of the identification outweighed any undue prejudice. State v. Weldon, 258 N.C. App. 150, 811 S.E.2d 683, 2018 N.C. App. LEXIS 176 (2018).

During defendant’s trial for first-degree sex offense with a child, the trial court did not err by admitting evidence of two prior incidents because those incidents and the instant offense each involved the same victim, the same specific alleged mode of penetration, and occurred while the victim was under defendant’s supervision, and therefore the prior incidents were relevant to show that the instant offense was part of a common scheme or plan. The trial court did not err by finding that the prior incidents were more probative than prejudicial, it gave a limiting instruction, and the evidence was not cumulative or likely to mislead the jury. State v. Godfrey, 263 N.C. App. 264, 822 S.E.2d 894, 2018 N.C. App. LEXIS 1225 (2018).

Trial court properly convicted defendant, upon a jury verdict, of first-degree murder and possession of a firearm by a felon because evidence of a prior break-in was properly admitted since it tended to show how defendant gained possession of the murder weapon, was necessary for the natural development of the facts and to complete the story of the murder for the jury, allowed the jury to understand how defendant came to possess the murder weapon and how long it had been outside the possession of its original lawful owner, explained why the legal gun owner was not considered a suspect and showed the thoroughness of law enforcement’s investigation. State v. Washington, 277 N.C. App. 576, 859 S.E.2d 246, 2021- NCCOA-219, 2021 N.C. App. LEXIS 227 (2021).

DNA Evidence Properly Admitted. —

Where DNA evidence was highly probative of the identity of the victim’s killer, it did not unfairly prejudice defendant, confuse the issues, or mislead the jury; the trial court properly allowed forensic serologist to testify about the results of DNA analysis and the statistical significance thereof. State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747, 1995 N.C. LEXIS 377 (1995), cert. denied, 516 U.S. 1079, 116 S. Ct. 789, 133 L. Ed. 2d 739, 1996 U.S. LEXIS 589 (1996), writ denied in part, 343 N.C. 754, 477 S.E.2d 34, 1996 N.C. LEXIS 669 (1996).

The admission of testimony regarding the source of the DNA in the DNA data bank which led to the conviction of the defendant for a murder committed 4 years earlier was not plain error under this section. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145, 2001 N.C. App. LEXIS 269 (2001).

Trial court’s admission of a detective’s notes did not amount to an abuse of discretion because significant evidence existed such that it was not likely a different result would have been obtained had the evidence been excluded; having created the impression that he denied all involvement with any guns when questioned about a sold firearm, defendant could not complain of unfair prejudice when the trial court allowed the State’s evidence that his denial pertained to his criminal history prior to this incident. State v. Hensley, 254 N.C. App. 173, 802 S.E.2d 744, 2017 N.C. App. LEXIS 455 (2017).

Testimony Based on Blood-Alcohol Analyzer. —

Court did not abuse its discretion in admitting Blood-Alcohol Analyzer as a reliable scientific method of proof under G.S. 8C-1, Rule 702(a), nor should it have been excluded under this rule, since the probative value of its results were not substantially outweighed by the danger of unfair prejudice or jury confusion and since both parties had opportunity to either attack or support its reliability. State v. Cardwell, 133 N.C. App. 496, 516 S.E.2d 388, 1999 N.C. App. LEXIS 601 (1999).

Testimony on Chain of Custody Procedures by SBI Not Prejudicial. —

Admission of testimony referring to the chain of custody procedures followed by the State Bureau of Investigation (SBI), stating that the evidence from a crime scene is transferred back to the local police department once the district attorney clears the police officer of any wrongdoing, was not prejudicial since defendant failed to show a reasonable possibility that, had the testimony not been allowed, the result would have been different; the testimony referred to all items collected for evidence and was allowed only to show the SBI’s general procedure regarding evidence. State v. Garris, 191 N.C. App. 276, 663 S.E.2d 340, 2008 N.C. App. LEXIS 1321 (2008).

Admission of a tape recording of a 911 call made by murder victim’s children was properly admitted. State v. Jordan, 128 N.C. App. 469, 495 S.E.2d 732, 1998 N.C. App. LEXIS 103 (1998).

Defendant failed to show that the decision of the trial court to admit 911 tape recording of his daughter telling dispatchers that he was “trying to kill” her mother was not the result of a reasoned choice in conformity with the requirements of this rule. State v. Wilds, 130 N.C. App. 195, 515 S.E.2d 466 (1999).

Admission of 911 Statements Held Proper. —

Child’s statements in the 911 call were clearly probative as to whether defendant had shot the victim; the child was in the next room when he heard the shot and the surrounding circumstances established that defendant had been inside when the shooting occurred. State v. Wright, 151 N.C. App. 493, 566 S.E.2d 151, 2002 N.C. App. LEXIS 768 (2002).

Witness’s statement was relevant to explain to the dispatcher why he felt threatened by defendant and why he called 911; the witness related in the 911 call the threatening caller’s own statement concerning his motive and in context, this statement could be understood as a threat to take thirty dollars from the witness and the victim at gunpoint or, in other words, as a threat to commit armed robbery. The witness’s comment that it was more than likely they were going to commit a robbery merely clarified and restated the evidence, to which defendant did not object. State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174, 2009 N.C. LEXIS 722 (2009), cert. denied, 559 U.S. 1074, 130 S. Ct. 2104, 176 L. Ed. 2d 734, 2010 U.S. LEXIS 3379 (2010).

Taped telephone statements made by defendant while he was incarcerated, in which he attempted to coordinate an alibi and threaten or coerce the victim, were admissible as admissions by a party opponent under G.S. 8C-1, Rule 801(d), an exception to the hearsay rule. While they were prejudicial as indicating defendant’s consciousness of guilt, they were not unduly prejudicial under G.S. 8C-1, Rule 403. State v. Rainey, 198 N.C. App. 427, 680 S.E.2d 760, 2009 N.C. App. LEXIS 1360 (2009).

Evidence of Victim’s State of Mind Admissible. —

Testimony by the victim’s friend was admissible to show the victim’s state of mind prior to a meeting with defendant and revealed her fear of defendant and of an imminent encounter with him; the probative value of the testimony outweighed any prejudicial effect. State v. Williams, 151 N.C. App. 535, 566 S.E.2d 155, 2002 N.C. App. LEXIS 772, cert. denied, 356 N.C. 313, 571 S.E.2d 214, 2002 N.C. LEXIS 999 (2002).

Evidence that an officer had seen defendant driving with a revoked license after an arrest for driving with a revoked license was not unduly prejudicial under G.S. 8C-1, Rule 403, N.C. R. Evid. 403, and was properly admitted to show defendant’s knowledge, specifically that defendant knowingly drove with a revoked license, under G.S. 8C-1, Rule 404, N.C. R. Evid. 404. State v. Hargrave, 198 N.C. App. 579, 680 S.E.2d 254, 2009 N.C. App. LEXIS 1348 (2009).

Expert Testimony Admitted. —

Defendant failed to show that any error in overruling the defendant’s objection and motion to strike testimony was prejudicial because a special agent had not begun testifying about defendant’s case in particular but was speaking generally about the nature of the agent’s work; the special agent explained that when no DNA match was found, the person in question could not have committed the crime and did not affirmatively state that when a match was found, the subject definitely committed the crime. State v. Hurt, 235 N.C. App. 174, 760 S.E.2d 341, 2014 N.C. App. LEXIS 739 (2014).

Child custody expert’s testimony was admissible because the testimony was (1) limited to the qualified expert’s experience, and (2) relevant and not more prejudicial than probative. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12, 2016 N.C. App. LEXIS 446 (2016).

Evidence Properly Excluded. —

Defendant’s testimony that his Intoxilyzer reading did not accurately reflect his blood alcohol level was not admissible and the trial court correctly excluded this evidence. State v. Cothran, 120 N.C. App. 633, 463 S.E.2d 423, 1995 N.C. App. LEXIS 896 (1995).

Expert testimony was properly excluded where it would have directed the jury’s attention away from defendant’s actual conduct and confused it with evidence unrelated to the legality of the arrest or the force the officers used in attempting to apprehend defendant. State v. Harden, 344 N.C. 542, 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Trial court did not err by excluding doctor’s testimony regarding his opinion that defendant did not act with a cool state of mind. State v. Boyd, 343 N.C. 699, 473 S.E.2d 327, 1996 N.C. LEXIS 414 (1996), cert. denied, 519 U.S. 1096, 117 S. Ct. 778, 136 L. Ed. 2d 722, 1997 U.S. LEXIS 608 (1997), writ denied, 352 N.C. 150, 544 S.E.2d 229, 2000 N.C. LEXIS 511 (2000), writ denied, 360 N.C. 177, 625 S.E.2d 550, 2005 N.C. LEXIS 1246 (2005).

Where plaintiffs introduced records of 911 calls from January 1988 through July 1993 concerning incidents at a restaurant where the subject murder occurred, and where their crime analyst testified as to the type of offenses that prompted the calls in 1992 and 1993 as well as crimes that occurred within a one-half mile radius of the restaurant in those years, the trial court did not err in excluding data pertaining to criminal activity from 1988 to 1991, some of which was probably cumulative; if such exclusion did constitute error, such error was, in the face of the plaintiffs’ contributory negligence, harmless. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524 S.E.2d 53, 1999 N.C. App. LEXIS 1296 (1999).

The trial court properly excluded expert testimony that was not case specific, lacked probative value and presented a danger of prejudice. State v. Lee, 154 N.C. App. 410, 572 S.E.2d 170, 2002 N.C. App. LEXIS 1469 (2002).

Trial court did not abuse its discretion by excluding testimony by a mental health expert retained by the State that in 10 prior cases she had never found a defendant insane at the time of his crime; although the trial court might properly have admitted such evidence, the trial court’s determination to exclude such testimony was not manifestly unsupported by reason. State v. Durham, 175 N.C. App. 202, 623 S.E.2d 63, 2005 N.C. App. LEXIS 2752 (2005).

Trial court did not abuse its discretion by excluding testimony by defendant’s brother about the brother’s own mental illness, which was similar to defendant’s mental illness, even though two mental health experts had previously testified that mental illnesses tended to run in families and a mental health expert retained by the State specifically testified that mental illness ran in defendant’s family; defendant’s claim that the brother’s testimony was more compelling evidence that a type of mental illness ran in defendant’s family and bolstered defendant’s claim of insanity was rejected. State v. Durham, 175 N.C. App. 202, 623 S.E.2d 63, 2005 N.C. App. LEXIS 2752 (2005).

Even if a trial court erred in excluding investors’ net worths, a sales agent failed to demonstrate any prejudice resulting from the exclusion of the evidence because he testified that he took the investors’ net worths into consideration in determining whether to recommend investing in a corporation; although the trial court prevented the agent from presenting to the jury evidence of each investors’ net worth in specific monetary terms, the agent testified extensively that the corporation’s investments were suitable for the investors based on their net worths. Latta v. Rainey, 202 N.C. App. 587, 689 S.E.2d 898, 2010 N.C. App. LEXIS 366 (2010).

Trial court did not abuse its discretion in excluding the testimony of defendant’s expert because there was evidence to support its decision, and it properly acted as a gatekeeper in determining the admissibility of testimony; the trial court heard arguments from both parties regarding the subject matter of the proffered testimony, conducted voir dire, and considered the testimony defendant wished to elicit from the expert and the parties’ balancing arguments. State v. Walston, 369 N.C. 547, 798 S.E.2d 741, 2017 N.C. LEXIS 279 (2017).

Exclusion of Evidence Held Not Prejudicial. —

Court’s refusal to permit witness to testify that, based upon his personal knowledge of the State’s only eyewitness, he would not believe the State’s witness under oath was not prejudicial where immediately before that evidence was offered, the same witness testified without objection that in his opinion the State’s witness was a liar and had told him he would take a bribe to change his testimony. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760, 1990 N.C. App. LEXIS 1128 (1990).

Where doctor who performed autopsy used one photograph showing victim’s bare breast to illustrate his testimony about the cause of death and the nature and location of the wound, the danger of redundant and excessive use of potentially inflammatory photographs was not present, and the trial court acted within its sound discretion in ruling under this rule that the probative value of the unaltered photograph was not substantially outweighed by any prejudice. State v. Butler, 331 N.C. 227, 415 S.E.2d 719, 1992 N.C. LEXIS 206 (1992), writ denied, 559 S.E.2d 187, 2001 N.C. LEXIS 1261 (2001), writ denied, 368 N.C. 607, 780 S.E.2d 566, 2015 N.C. LEXIS 1244 (2015), writ denied, 368 N.C. 692, 781 S.E.2d 611, 2016 N.C. LEXIS 107 (2016).

Because a steamroller driver’s convictions for driving without a license and driving with a revoked license were admissible under G.S. 8C-1, N.C. R. Evid. 609(a), and because the trial court had no discretion to exclude such evidence under G.S. 8C-1, N.C. R. Evid. 403, the trial court erred in granting the driver’s motion in limine, but defendants had not demonstrated how they were specifically prejudiced by the trial court’s error, nor had they alleged the jury verdict would have been different had the convictions been admitted. Therefore, the trial court’s error was harmless. Outlaw v. Johnson, 190 N.C. App. 233, 660 S.E.2d 550, 2008 N.C. App. LEXIS 907 (2008).

Error in excluding opinion evidence by defendant’s friend as to defendant’s character for trustworthiness was not prejudicial since the jury was not limited to assessing the believability of defendant’s story based solely on her own testimony, but heard from several witnesses whose testimony arguably had greater probative force regarding defendant’s state of mind than the excluded testimony would have had; had the opinion evidence been heard, evidence that defendant was not gullible, which could have diminished her defense, would also have been heard. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382, 2013 N.C. App. LEXIS 894 (2013).

Only possible confusion was that the evidence given by the president’s wife might be used against co-defendants, but it is common sense that this was the reason plaintiffs would want to use the evidence, and such use is explicitly permitted when the co-defendant was represented at the deposition which an adverse party seeks to admit; excluding the proffered portions of the wife’s deposition was error, but as the inclusion of the deposition would have had no effect on plaintiffs’ breach of fiduciary duty claims, error was not prejudicial. Green v. Freeman, 233 N.C. App. 109, 756 S.E.2d 368, 2014 N.C. App. LEXIS 297 (2014).

Trial court did not err in ruling that co-defendants would not be called to testify due to the fact that they would invoke their Fifth Amendment privilege without conducting the balancing inquiry required by this rule, where defendant did not submit an offer of proof as to their testimony outside the presence of the jury; his testimony on his own behalf indicated his version of the incident but did not qualify as an offer of proof as to his co-defendants’s testimony. State v. Harris, 139 N.C. App. 153, 532 S.E.2d 850, 2000 N.C. App. LEXIS 809 (2000), writ denied, 692 S.E.2d 107, 2010 N.C. LEXIS 161 (2010), cert. dismissed, 365 N.C. 345, 732 S.E.2d 151, 2011 N.C. LEXIS 1152 (2011).

Exclusion of Evidence Held Prejudicial. —

Where defendant sought to reveal that two years ago witness had deceived a person he was investigating in an effort to obtain a confession for that crime, the evidence was probative of the witness’s character for untruthfulness, was not too remote and was unfairly prejudicial; thus, the defendant was entitled to a new trial. State v. Baldwin, 125 N.C. App. 530, 482 S.E.2d 1, 1997 N.C. App. LEXIS 129 (1997).

When defendant was retried after an officer had improper contact with a juror at defendant’s first trial, it was prejudicial error to exclude evidence of the officer’s improper contact because (1) defendant should have been allowed to raise the misconduct when cross-examining the officer to show the officer’s bias, and character for untruthfulness, under G.S. 8C-1, N.C. R. Evid. 608(b), and (2) the error barred inquiry into the officer’s bias, and kept the jury from knowledgeably weighing the officer’s credibility. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492, 2012 N.C. LEXIS 267 (2012).

When defendant was retried after an officer had improper contact with a juror at defendant’s first trial, it was error to exclude evidence of the officer’s improper contact on the theory that prejudicial evidence of defendant’s prior conviction could come in because defense counsel stated the risk was worth taking, so any error resulting from admitting the evidence would have been invited. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492, 2012 N.C. LEXIS 267 (2012).

Statements Regarding Prior Similar Actions. —

Trial court did not abuse its discretion in admitting certain statements by a town mayor regarding previous actions of a chief building official where the statements were relevant to the claim for negligent supervision and the trial court thrice gave a limiting instruction as to their applicability. Leftwich v. Gaines, 134 N.C. App. 502, 521 S.E.2d 717, 1999 N.C. App. LEXIS 893 (1999).

Evidence of defendant’s prior assault on another victim admitted for the limited purposes of proving a common scheme and defendant’s intent, was not unfairly prejudicial; the prior assault and the current charges were similar in nature; in both instances the victims, similar in age, visited various residences or places in which they were unfamiliar and then were taken by automobile to isolated areas at night; where the defendant told the victims something was wrong with the automobile, asked the victims to get out of the automobile, and then proceeded to sexually assault them. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404, 2000 N.C. App. LEXIS 1403 (2000).

Admission of defendant’s inculpatory admissions made to a sex offender evaluator in another case did not violate G.S. 8C-1, N.C. R. Evid. 403 where the trial court’s ruling that the value of the statements outweighed any prejudicial effect was the result of the exercise of sound discretion. State v. Maney, 151 N.C. App. 486, 565 S.E.2d 743, 2002 N.C. App. LEXIS 754 (2002).

Trial court did not abuse its discretion by ruling that the evidence regarding a second impersonation of a police officer and robbery incident was admissible in a defendant’s trial for a similar incident because the prior incident occurred two days after the first, involved the assailants’ entry into the victim’s residences under the auspices of legitimate law enforcement activity, and each assailant displayed a bogus search warrant and firearms in an effort to gain entry into the respective residences. State v. Jacobs, 174 N.C. App. 1, 620 S.E.2d 204, 2005 N.C. App. LEXIS 2279 (2005), vacated in part, rev'd, 361 N.C. 565, 648 S.E.2d 841, 2007 N.C. LEXIS 814 (2007).

Trial court did not err by admitting evidence at defendant’s trial for arson that defendant had four years earlier committed arson because the evidence was probative of defendant’s intent and was sufficiently similar, logically relevant, and not too remote in time. Both the arson for which defendant was tried and the prior arson were set during the nighttime on the exterior of a building at an entrance when defendant was intoxicated, knew the buildings to be occupied, and was angry about a perceived harm against defendant by the occupant. State v. Wilson-Angeles, 251 N.C. App. 886, 795 S.E.2d 657, 2017 N.C. App. LEXIS 55 (2017).

Other crimes evidence was properly admitted under G.S. 8C-1-404(b), as defendant’s statement that if someone did not call him back he was going to “burn you all up,” was admissible to prove a number of the listed purposes, namely defendant’s motive, intent, plan, common scheme, as well as defendant’s identity as the arsonist; the trial court guarded against the possibility of prejudice under G.S. 8C-1-403 by instructing the jury to consider the evidence only for the limited purposes of establishing identity, intent, motive, absence of mistake, and common plan. State v. Curmon, 171 N.C. App. 697, 615 S.E.2d 417, 2005 N.C. App. LEXIS 1362 (2005).

Evidence that first-degree murder defendant had robbed drug dealers and hit a drug dealer during a robbery was relevant to refute his contention that he shot a police officer without premeditation and deliberation, while evidence about his illegal acquisition of weapons and his curfew violation was relevant as part of the chain of circumstances leading up to the shooting. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258, 2006 N.C. App. LEXIS 1637 (2006).

Professional engineer’s testimony as to the structure and appearance of a stairway that plaintiff was injured on was based on direct personal knowledge; therefore, this testimony was admissible so long as it was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. Newton v. New Hanover County Bd. of Educ., 342 N.C. 554, 467 S.E.2d 58, 1996 N.C. LEXIS 23 (1996).

Photographs of Other Houses’ Cracks in Structural Defect Case. —

Photographs of cracks in the foundations and floors of other houses constructed by the defendant/construction company were properly admitted into evidence because the probative value of the photographs was not outweighed by unfair prejudice. Allen v. Roberts Constr. Co., 138 N.C. App. 557, 532 S.E.2d 534, 2000 N.C. App. LEXIS 783 (2000).

Demonstration of Weaponry. —

Where defense counsel commented in his opening statement that the State could present no evidence of the existence of shell casings from the revolver allegedly used by the defendant, the state’s demonstration of semi-automatic weapons to explain that shell casings are not ejected by revolvers was relevant in light of defense counsel’s statement. State v. Reaves, 132 N.C. App. 615, 513 S.E.2d 562, 1999 N.C. App. LEXIS 268 (1999).

Demonstration of Effects of Pepper Spray. —

Trial court properly allowed the State, during its presentation of rebuttal evidence, to demonstrate the effects of pepper spray in an experiment under circumstances dissimilar to those that actually occurred and with the use of law enforcement officers trained in the use of pepper spray; defendant was given, but chose not to take, the opportunity to present his own demonstration on lay witnesses. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168, 2000 N.C. LEXIS 618 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2353 (2001), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2354 (2001), writ denied, 358 N.C. 157, 593 S.E.2d 84, 2004 N.C. LEXIS 158 (2004), cert. dismissed, 370 N.C. 375, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. dismissed, 375 N.C. 500, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (2020).

Admission of Prior Misconduct with Gun. —

Defendant was not prejudiced by admission of testimony that witness remembered a gun, similar to that used in two murders, because defendant had playfully held it to his head. State v. Moses, 350 N.C. 741, 517 S.E.2d 853, 1999 N.C. LEXIS 882 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826, 2000 U.S. LEXIS 693 (2000), writ denied, 356 N.C. 442, 573 S.E.2d 160, 2002 N.C. LEXIS 1214 (2002), writ denied, 357 N.C. 510, 588 S.E.2d 380, 2003 N.C. LEXIS 1188 (2003), writ denied, 360 N.C. 652, 639 S.E.2d 57, 2006 N.C. LEXIS 1199 (2006), cert. denied, 365 N.C. 93, 706 S.E.2d 246, 2011 N.C. LEXIS 121 (2011).

Admission of Prior Voluntary Manslaughter Conviction. —

Trial court did commit prejudicial error under this rule in rejecting defendant’s tendered limiting stipulation and admitting evidence of an earlier prior voluntary manslaughter conviction, where defendant was not charged with any attendant offenses similar to his prior conviction and where the jury was not informed that his prior conviction in any way involved use of a firearm. State v. Jackson, 139 N.C. App. 721, 535 S.E.2d 48, 2000 N.C. App. LEXIS 1039 (2000), aff'd in part and rev'd in part, 353 N.C. 495, 546 S.E.2d 570, 2001 N.C. LEXIS 529 (2001).

Admission of Prior Murder Conviction. —

Evidence of defendant’s conviction for second-degree murder 27 years earlier was properly admitted in defendant’s murder trial where the trial court found similarities between the two murders, and the 18 years defendant spent in prison were excluded when the trial court ruled on whether the previous crime was too remote; the probative value of the previous conviction upon the issues for which it was offered, defendant’s intent to kill and his identity as the perpetrator, far outweighed the possibility of unfair prejudice. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574, 2002 N.C. App. LEXIS 360 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885, 2003 N.C. LEXIS 1252 (2003).

Admission of Prior Sexual Offenses. —

In defendant’s prosecution for sexual offenses against a student, his prior offenses against other students were admissible against him because, in light of the similarities between the alleged acts, the probative value of admitting the evidence exceeded any unfair prejudice to defendant. State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691, 2002 N.C. App. LEXIS 1131 (2002).

Evidence of defendant’s prior assault on the victim, a few months before the act which caused victim’s death, was not prohibited, because it tended to show a common plan or scheme and absence of accident, and tended to negate self-defense, and was, thus, more probative than prejudicial. State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547, 2002 N.C. App. LEXIS 411 (2002).

In defendant’s trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant’s girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant’s claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443, 2003 N.C. App. LEXIS 743 (2003).

Evidence of Other Drug Transactions. —

In defendant’s trial on charges of maintaining a vehicle to keep and sell a controlled substance, trafficking by possession of oxycodone, trafficking by sale of oxycodone, and trafficking by transportation of oxycodone, the trial court did not abuse its discretion by allowing an informant and other witnesses to testify that they met with defendant at various locations over a five-week period to buy oxycodone because, although the evidence described drug transactions that were not charged, it showed knowledge, plan, scheme, design, opportunity, and absence of mistake or entrapment, and was not so remote that its prejudicial impact outweighed its probative value. State v. McCracken, 157 N.C. App. 524, 579 S.E.2d 492, 2003 N.C. App. LEXIS 732 (2003).

Confidential police informant’s testimony as to prior, uncharged drug transactions with defendant was admitted for a proper purpose under G.S. 8C-1, N.C. R. Evid. 404(b), and the trial court did not act arbitrarily in allowing the testimony under G.S. 8C-1, N.C. R. Evid. 403 because the testimony was offered to show intent, knowledge, and common plan or scheme as well as to explain the relationship between the informant and defendant; additionally, an appropriate limiting instruction to that effect was given to the jury both at the time the informant testified and in the jury instructions. State v. Houston, 169 N.C. App. 367, 610 S.E.2d 777, 2005 N.C. App. LEXIS 606 (2005).

Second defendant was not prejudiced by the admission of evidence of codefendant’s prior possession of prescription drugs, where evidence was presented that second defendant was clearly not involved in the earlier incident and the trial court gave a limiting instruction to the jury. State v. Ellison, 213 N.C. App. 300, 713 S.E.2d 228, 2011 N.C. App. LEXIS 1494 (2011), dismissed, 365 N.C. 556, 722 S.E.2d 594, 2012 N.C. LEXIS 580 (2012), aff'd, 366 N.C. 439, 738 S.E.2d 161, 2013 N.C. LEXIS 265 (2013).

Evidence of defendant’s offenses subsequent to burglary, namely, shoplifting, breaking, entering and larceny, and car theft, were admissible to show intent and motive (the defendant wanted money for drugs) and was not unfairly prejudicial where the judge gave a limiting instruction. State v. Hutchinson, 139 N.C. App. 132, 532 S.E.2d 569, 2000 N.C. App. LEXIS 800 (2000).

Admission of testimony that defendant viewed sexually explicit photos on his home computer was relevant, and any prejudice that might have been caused by allowing the jury to see the photos was addressed by the trial court’s decision not to show the photos to the jury. State v. Quinn, 166 N.C. App. 733, 603 S.E.2d 886, 2004 N.C. App. LEXIS 2025 (2004).

Admission of expert testimony regarding memory factors is within trial court’s discretion, and appellate court will not intervene where trial court properly appraises probative and prejudicial value of evidence under this rule. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456, 1990 N.C. App. LEXIS 815 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514, 1991 N.C. LEXIS 608 (1991).

Witness testimony in which he stated he was “pretty sure” that defendant had admitted to killing victim was relevant to the issue of the identification of defendant and not unfairly prejudicial. State v. Moses, 350 N.C. 741, 517 S.E.2d 853, 1999 N.C. LEXIS 882 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826, 2000 U.S. LEXIS 693 (2000), writ denied, 356 N.C. 442, 573 S.E.2d 160, 2002 N.C. LEXIS 1214 (2002), writ denied, 357 N.C. 510, 588 S.E.2d 380, 2003 N.C. LEXIS 1188 (2003), writ denied, 360 N.C. 652, 639 S.E.2d 57, 2006 N.C. LEXIS 1199 (2006), cert. denied, 365 N.C. 93, 706 S.E.2d 246, 2011 N.C. LEXIS 121 (2011).

Trial court’s admission of victim’s testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him, nor did it violate G.S. 8C-1, Rules 403, 404(b), and 803(3) of the North Carolina Rules of Evidence where the hearsay statements constituted, and were admissible as, statements of declarant’s then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797, 2000 N.C. LEXIS 615 (2000), cert. denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976, 2001 U.S. LEXIS 1282 (2001).

State Bar Disciplinary Hearing. —

North Carolina State Bar Disciplinary Hearing Commission (DHC) did not violate the rule in admitting the results of two prior audits because the results of the audits were relevant to the intent of the attorney to commit acts where the harm or potential harm was foreseeable and a pattern of misconduct; the attorney did not demonstrate an improper basis on which the DHC could have considered the evidence. N.C. State Bar v. Adams, 239 N.C. App. 489, 769 S.E.2d 406, 2015 N.C. App. LEXIS 167 (2015).

Evidence from Myspace Page. —

Trial court did not err in excluding a police report and a minor child’s Myspace website pursuant to G.S. 8C-1, N.C. R. Evid. 412, during an adjudicatory and disposition hearing because it was permissible for a trial judge in a civil case to use Rule 412 as a basis for excluding irrelevant evidence about a plaintiff’s prior sexual behavior; pursuant to Rule 412, evidence of the prior sexual history of the victim is irrelevant in most instances, but upon a finding by the trial court that certain evidence is relevant because it falls into one of the exceptions under Rule 412, or if the evidence falls outside of the rule, a G.S. 8C-1, N.C. R. Evid. 403 balancing of probative value versus unfair prejudice should be utilized in the trial court’s discretion. In re K.W., 192 N.C. App. 646, 666 S.E.2d 490, 2008 N.C. App. LEXIS 1655 (2008).

I.General Consideration

Rule 405 Compared. —

A criminal defendant is entitled to introduce evidence of his good character, thereby placing his character at issue, and the State in rebuttal can then introduce evidence of defendant’s bad character; unlike evidence of prior bad acts being offered under G.S. 8C-1, Rule 404(b), G.S. 8C-1, Rule 405(a) does not contain any time limit or rule regarding remoteness, and the North Carolina Supreme Court has explicitly refused to impose one. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72, 2002 N.C. App. LEXIS 498 (2002).

Unlike evidence of prior bad acts being offered under subsection (b) of this rule, G.S. 8C-1, Rule 405(a) does not contain any time limit or rule regarding remoteness, and the North Carolina Supreme Court has explicitly refused to impose one; rather, a “relevant” specific instance of conduct under Rule 405(a) would be any conduct that rebuts the earlier reputation or opinion testimony offered by the defendant. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703, 2003 N.C. App. LEXIS 383 (2003).

Federal Rule Compared. —

This rule is identical to Federal Evidentiary Rule 404, except for the addition of the word “entrapment” in the last sentence of subsection (b). State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

This rule is virtually identical to Federal Rule of Evidence 404, the legislative history of which tends to favor admissibility. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76 (1986), rev’d in part, 318 N.C. 669, 351 S.E.2d 294 (1987); Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831, appeal of right allowed pursuant to Rule 16(b) and petition allowed as to additional issues, 320 N.C. 513, 358 S.E.2d 521 (1987), aff’d, 320 N.C. 517, 358 S.E.2d 533 (1987).

This rule is consistent with prior North Carolina practice. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669, 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

Subsection (b) of this rule is consistent with prior North Carolina practice. State v. Belton, 77 N.C. App. 559, 335 S.E.2d 522, 1985 N.C. App. LEXIS 4163 (1985); State v. Spinks, 77 N.C. App. 657, 335 S.E.2d 786, 1985 N.C. App. LEXIS 4189 (1985), aff'd, 316 N.C. 547, 342 S.E.2d 522, 1986 N.C. LEXIS 2149 (1986); In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, 1987 N.C. App. LEXIS 2530 (1987), cert. denied, 319 N.C. 673, 356 S.E.2d 779, 1987 N.C. LEXIS 2118 (1987), cert. denied, 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646, 1988 U.S. LEXIS 228 (1988); State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, 1987 N.C. App. LEXIS 2640, writ denied, 320 N.C. 175, 358 S.E.2d 66, 1987 N.C. LEXIS 2247 (1987).

Subsection (b) of this rule permits the introduction of specific “crimes, wrongs, or acts” for a legitimate purpose other than to prove the conduct of a person. In so doing, it is consistent with North Carolina practice prior to its enactment. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Subsection (b) of this rule codifies the longstanding rule in this jurisdiction that evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact, it will not be excluded merely because it also shows him to have been guilty of an independent crime. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

This rule is a 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. State v. Kennedy, 130 N.C. App. 399, 503 S.E.2d 133, 1998 N.C. App. LEXIS 938 (1998), aff'd, 350 N.C. 87, 511 S.E.2d 305, 1999 N.C. LEXIS 43 (1999).

This rule is a general rule of inclusion of evidence, subject to an exception when the only probative value of the evidence is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged. State v. West, 103 N.C. App. 1, 404 S.E.2d 191, 1991 N.C. App. LEXIS 578 (1991).

This rule addresses the admissibility of evidence; it is not a discovery statute which requires the State to disclose such evidence as it might introduce thereunder. State v. Payne, 337 N.C. 505, 448 S.E.2d 93, 1994 N.C. LEXIS 499 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 292, 1995 U.S. LEXIS 2309 (1995).

Construction. —

North Carolina’s appellate courts have been markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in G.S. 8C-1, Rule 404(b), such as establishing the defendant’s identity as the perpetrator of the crime charged. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198, 2001 N.C. App. LEXIS 430, cert. denied, 354 N.C. 222, 554 S.E.2d 647, 2001 N.C. LEXIS 1024 (2001).

Probative Value Substantially Outweighs Prejudice. —

Once a trial court determines that other crimes evidence is properly admissible under G.S. 8C-1, Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under G.S. 8C-1, Rule 403. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198, 2001 N.C. App. LEXIS 430, cert. denied, 354 N.C. 222, 554 S.E.2d 647, 2001 N.C. LEXIS 1024 (2001).

Evidence that defendant had jokingly scared other employees by pretending to rob them in a manner similar to that used by the robber during the robbery at issue tended to show motive, opportunity, intent, preparation, plan, or knowledge, was more relevant and probative than unduly prejudicial, and was properly admitted at trial. State v. Ingram, 160 N.C. App. 224, 585 S.E.2d 253, 2003 N.C. App. LEXIS 1731 (2003).

Section 8C-1, Rule 608(b) Distinguished. —

Although subsection (b) of this rule and G.S. 8C-1, Rule 608(b) concern the use of specific instances of a person’s conduct, the two rules have very different purposes and are intended to govern entirely different uses of extrinsic conduct evidence. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84, 1986 N.C. LEXIS 1897 (1986).

“Extrinsic conduct evidence” refers to evidence of a specific prior or subsequent act, not charged in the indictment, which may be criminal but, as applied in G.S. 8C-1, Rule 608(b), does not result in a conviction. Criminal convictions are included in subsection (b) of this rule. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84, 1986 N.C. LEXIS 1897 (1986).

Section 8C-1, Rule 608(b) governs reference to specific instances of conduct only on cross-examination regarding the credibility of any witness and prohibits proof by extrinsic evidence. Under subsection (b) of this rule, however, evidence regarding extrinsic acts is not limited to cross-examination and may be provided by extrinsic evidence as well as through cross-examination. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84, 1986 N.C. LEXIS 1897 (1986).

Although evidence of other acts is not permissible under G.S. 8C-1, N.C. R. Evid. 404(b) to show a propensity for violence solely because a defendant raised the claim of self-defense, such evidence may be used to refute specific evidence of a defendant’s credibility under G.S. 8C-1, N.C. R. Evid. 608, when such credibility is at issue (such as when a criminal defendant introduces evidence of his good character, thereby placing his character at issue); when the criminal defendant introduces such evidence, the State in rebuttal can then introduce evidence of defendant’s bad character, and under G.S. 8C-1, N.C. R. Evid. 405(a), and the State may do so by cross-examining a defendant’s character witnesses as to relevant specific instances of conduct. State v. Ammons, 167 N.C. App. 721, 606 S.E.2d 400, 2005 N.C. App. LEXIS 11 (2005).

Rule 609 Distinguished. —

Although the State exceeded the permissible scope of inquiry into defendant’s prior criminal conviction under G.S. 8C-1, Rule 609 by delving into his motivation for his “forgery activity,” the evidence that defendant previously committed forgery to finance his drug habit could properly be admitted under this section, to show that his need to support his drug habit and his lack of finances were the motive for the robbery and murder of the victim. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423, 2000 N.C. App. LEXIS 1397 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644, 2001 N.C. LEXIS 1079 (2001).

Single Scheme or Plan. —

Where there existed an extended interval of as much as several years between sex offenses and where there was a lack of a consistent pattern in defendant’s molesting behavior, all of the charged acts perpetrated against three sisters did not constitute part of a single scheme or plan, as a matter of law, and the trial court erred in joining the cases under G.S. 15A-926; however, since evidence of other molestations would have been admissible pursuant to this rule to show “intent, plan or design,” at the trial of any one offense, the error was harmless. State v. Owens, 135 N.C. App. 456, 520 S.E.2d 590, 1999 N.C. App. LEXIS 1145 (1999).

Evidence Which Was Irrelevant as Substantive Evidence Held Proper When Used for Rebuttal. —

While State would not have been allowed to introduce, in the first instance, evidence of defendant’s bad conduct toward fellow employees, trial court did not err in allowing State to rebut defendant’s evidence of a good employment record. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456, 1990 N.C. App. LEXIS 815 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514, 1991 N.C. LEXIS 608 (1991).

It was error for a trial judge not to conduct a voir dire in order to rule on questions of admissibility and order a tape recording to be edited or redacted as necessary. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95, 1992 N.C. LEXIS 670 (1992), overruled, State v. Lynch, 334 N.C. 402, 432 S.E.2d 349, 1993 N.C. LEXIS 337 (1993).

Evidence of Victim’s State of Mind. —

Evidence that the victim was peaceful and unarmed the night of the murder was relevant to prove that the victim did not provoke defendant and that the murder was committed with premeditation and deliberation. State v. Alford, 339 N.C. 562, 453 S.E.2d 512, 1995 N.C. LEXIS 25 (1995).

Evidence of Accused’s State of Mind. —

In prosecution for assault with a deadly weapon, testimony about defendant’s conduct prior to confrontation with deputies and admission of videotape allegedly depicting this conduct would be upheld, as part of the “chain of events” and as showing defendant’s state of mind immediately prior to the deputies being called to the scene. State v. Price, 118 N.C. App. 212, 454 S.E.2d 820, 1995 N.C. App. LEXIS 178 (1995).

Evidence of Motive. —

The evidence of defendant’s drug dealing activities, the victim’s desire for a greater cut of the profits and his failure to turn in all the money, was relevant to show defendant’s motive for murdering the victim. State v. Lundy, 135 N.C. App. 13, 519 S.E.2d 73, 1999 N.C. App. LEXIS 914 (1999).

Defendant’s disturbance at the bank was relevant and admissible to show defendant’s need for money and the motivation to commit the kidnapping and ultimate murder. State v. Parker, 354 N.C. 268, 553 S.E.2d 885, 2001 N.C. LEXIS 1090 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162, 2002 U.S. LEXIS 4081 (2002).

Factors Affecting Mental State. —

Defendant was properly permitted to cross-examine plaintiff about other factors in her life which had a bearing upon her mental state, such as acts of wrong-doing on the part of her children. Pelzer v. UPS, Inc., 126 N.C. App. 305, 484 S.E.2d 849, 1997 N.C. App. LEXIS 366 (1997).

Premeditation and deliberation are generally not susceptible of direct proof, but are mental processes which may be inferred from circumstantial evidence surrounding a murder, including lack of provocation on the part of the victim. State v. Alford, 339 N.C. 562, 453 S.E.2d 512, 1995 N.C. LEXIS 25 (1995).

Failure to Exclude Not Amounting to Plain Error. —

Even if the trial court erred in not intervening to exclude the portion of witness’s statement which referred to defendant’s prior bad act, the court’s error did not result in manifest injustice and did not amount to plain error. State v. Ocasio, 344 N.C. 568, 476 S.E.2d 281, 1996 N.C. LEXIS 504 (1996), writ denied, 683 S.E.2d 383, 2009 N.C. LEXIS 836 (2009).

Defendant’s Burden of Proof on Appeal. —

Appeal by a defendant, who contended that evidence that he performed oral sex on a minor victim should have been excluded, was denied because, in light of defendant’s admissions and other evidence admitted concerning defendant’s sexual improprieties with the minor victim, defendant failed to show that in the absence of the evidence a different result would have been reached at the trial. State v. Anderson, 177 N.C. App. 54, 627 S.E.2d 501, 2006 N.C. App. LEXIS 703 (2006).

Evidence Held Admissible to Show Motive. —

Follow-up question to first defendant about first defendant’s motivation for denying involvement in the subject crime, the fact that if found guilty first defendant would have violated his federal probation for another offense, was admissible for the purpose of showing motive. State v. Brown, 177 N.C. App. 177, 628 S.E.2d 787, 2006 N.C. App. LEXIS 882 (2006).

Evidence in Jury Instruction. —

Because an instruction given by the trial court as to the state’s G.S. 8C-1-404(b) evidence was substantially similar to that which defendant requested, as the only difference was that the trial court’s actual instruction identified the officer as the person who saw defendant in possession of what appeared to be a handgun, the instruction was proper. State v. Junious, 180 N.C. App. 656, 638 S.E.2d 497, 2006 N.C. App. LEXIS 2507 (2006).

Preservation for Review. —

Defendant’s appeal was dismissed where he challenged an officer’s testimony under this rule on appeal, but objected to the testimony at trial based on G.S. 8C-1, N.C. R. Evid. 403, as defendant did not object pursuant to this rule, his objection was not preserved on appeal, and he did not argue plain error. State v. Howard, 228 N.C. App. 103, 742 S.E.2d 858, 2013 N.C. App. LEXIS 663 (2013), aff'd, 367 N.C. 320, 754 S.E.2d 417, 2014 N.C. LEXIS 172 (2014).

Standard of Review. —

When analyzing rulings applying G.S. 8C-1, N.C. R. Evid. 404(b) and 403, the North Carolina Supreme Court conducts distinct inquiries with different standards of review; when a trial court has made findings of fact and conclusions of law to support an G.S. 8C-1, N.C. R. Evid. 404(b) ruling, the Court looks to whether the evidence supports the findings and whether the findings support the conclusions, and the Court reviews de novo the legal conclusion that the evidence is, or is not, within the coverage of G.S. 8C-1, N.C. R. Evid. 404(b), after which the Court reviews the trial court’s G.S. 8C-1, N.C. R. Evid. 403 determination for abuse of discretion. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012).

II.Character Evidence Generally

Subsection (a) is a general rule of exclusion, prohibiting the introduction of character evidence to prove that a person acted in conformity with that evidence of character. State v. Bogle, 324 N.C. 190, 376 S.E.2d 745, 1989 N.C. LEXIS 95 (1989).

Under subdivision (a)(1) of this rule an accused may no longer offer evidence of undifferentiated “good character” as permitted by our previous practice; rather, he must tailor the evidence to a particular trait that is relevant to an issue in the case. State v. Squire, 321 N.C. 541, 364 S.E.2d 354, 1988 N.C. LEXIS 19 (1988); State v. Fultz, 92 N.C. App. 80, 373 S.E.2d 445, 1988 N.C. App. LEXIS 988 (1988).

The plain meaning of the “first aggressor” exception is abundantly clear: if a defendant presents evidence that the victim was the first aggressor in the confrontation which led to the victim’s death, the State can offer evidence of the victim’s peacefulness. State v. Faison, 330 N.C. 347, 411 S.E.2d 143, 1991 N.C. LEXIS 802 (1991).

Accused May Introduce Evidence of Specific Traits. —

This rule, which became effective on July 1, 1984, is a significant departure from our previous practice under the common law, in that it permits an accused to introduce evidence of specific traits of his character. Under our previous rule, developed under the common law, the only method for introducing evidence of character was by general reputation. State v. Squire, 321 N.C. 541, 364 S.E.2d 354, 1988 N.C. LEXIS 19 (1988).

Defendant, who was on trial for murder, was not entitled to an instruction on his general “good reputation” in the community. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637, 2003 N.C. App. LEXIS 1511 (2003).

As the trial court’s preclusion of evidence regarding defendant’s peaceful and law-abiding character prevented defendant from offering evidence of two character traits which were both relevant and admissible as to his self-defense claim, and defendant demonstrated a reasonable possibility that, had the trial court not committed the error, the result at trial would have been different; thus, the defendant was prejudiced by the error. State v. Banks, 191 N.C. App. 743, 664 S.E.2d 355, 2008 N.C. App. LEXIS 1484 (2008).

When Evidence of Character Traits Is Admissible. —

“Pertinent” in the context of subdivision (a)(1) of this rule is tantamount to relevant. Thus, in determining whether evidence of a character trait is admissible under subdivision (a)(1), the trial court must determine whether the trait in question is relevant; i.e., whether it would make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without evidence of the trait. State v. Squire, 321 N.C. 541, 364 S.E.2d 354, 1988 N.C. LEXIS 19 (1988).

A criminal defendant will be entitled to an instruction on a good character trait as substantive evidence of his innocence when he satisfies the following four-part test: First, the evidence must be of a “trait of character” and not merely evidence of a fact (e.g., “being ‘law-abiding’ addresses one’s character of abiding by all laws, a lack of convictions addresses only the fact that one has not been convicted of a crime”); second, the evidence of the trait must be competent (i.e., in addition to satisfying all other applicable standards, the evidence must be in the proper form as required by G.S. 8C-1, Rule 405); third, the trait must be pertinent (i.e., relevant in the context of the crime charged in that it bears a special relationship to or is involved in such crime); and fourth, the instruction must be requested by the defendant. State v. Moreno, 98 N.C. App. 642, 391 S.E.2d 860, 1990 N.C. App. LEXIS 441 (1990).

Evidence of criminal activity not related to the crime charged must be relevant to some issue in the case to be admissible; such evidence is inadmissible when introduced to prove defendant’s “character in order to show that he acted in conformity therewith.” State v. Coffey, 336 N.C. 412, 444 S.E.2d 431, 1994 N.C. LEXIS 286 (1994).

Where defendant argues he acted in self-defense, evidence of the victim’s character may be admissible for two reasons: to show defendant’s fear or apprehension was reasonable, or to show the victim was the aggressor. State v. Ray, 125 N.C. App. 721, 482 S.E.2d 755, 1997 N.C. App. LEXIS 237 (1997).

Where defendant proffered evidence of his good character, trial court did not abuse its discretion in allowing the State to rebut by introducing evidence of his assaultive behavior prior to his 1976 brain injury. Dobson v. Harris, 1999 N.C. App. LEXIS 883 (N.C. Ct. App. Aug. 17, 1999).

Trial court did not err in allowing admission of one police officer’s testimony that from a confrontation with a young female outside of a residence where defendant had been seen before, that he knew defendant was likely inside the residence, and that he went to the residence to speak with defendant, as the testimony helped to establish the elements of the drug crimes charged against defendant and did not impermissibly place defendant’s character at issue even though it tended to show that defendant and the officer knew each other. State v. Moore, 162 N.C. App. 268, 592 S.E.2d 562, 2004 N.C. App. LEXIS 126 (2004).

While the bad acts elicited by the prosecution on redirect of the defendant’s girlfriend may have been inadmissible on direct examination under G.S. 8C-1, N.C. R. Evid. 404(b) before the defendant “opened the door” during cross-examination, the prosecution’s rebuttal of the defendant’s evidence of good character through the use of specific instances of conduct was proper under G.S. 8C-1, N.C. R. Evid. 404(a)(1), (b). State v. Duke, 360 N.C. 110, 623 S.E.2d 11, 2005 N.C. LEXIS 1314 (2005), cert. denied, 549 U.S. 855, 127 S. Ct. 130, 166 L. Ed. 2d 96, 2006 U.S. LEXIS 6725 (2006).

Testimony that defendant became violent when he was drinking was not offered for the purpose of proving that defendant acted in conformity with a violent disposition, but rather served to provide context for the ensuing fight; as such, its admission does not violate G.S. 8C-1-404’s prohibition on character evidence. State v. Beal, 181 N.C. App. 100, 638 S.E.2d 541, 2007 N.C. App. LEXIS 20 (2007).

Because defendant placed his character at issue by testifying at length about his positive military service record and acknowledging that he received a general discharge from the United States Army, the State was entitled to examine the circumstances that led to defendant’s discharge. State v. Sargent, 233 N.C. App. 96, 755 S.E.2d 91, 2014 N.C. App. LEXIS 264 (2014).

Trait May Be General in Nature. —

While under this rule, an accused must tailor his character evidence to a “pertinent” trait, the trait may be general in nature, provided that it is relevant in the context of the crime charged. State v. Squire, 321 N.C. 541, 364 S.E.2d 354, 1988 N.C. LEXIS 19 (1988).

Such as Trait of Being Law-Abiding. —

An example of a character trait of a general nature which is nearly always relevant in a criminal case is the trait of being law-abiding. State v. Squire, 321 N.C. 541, 364 S.E.2d 354, 1988 N.C. LEXIS 19 (1988).

Defendant was entitled to an instruction on his character trait of law-abidingness as substantive evidence of his innocence; it was for the jury to assess the weight of this evidence. State v. Bogle, 324 N.C. 190, 376 S.E.2d 745, 1989 N.C. LEXIS 95 (1989).

“Pertinent” Trait to Be Restrictively Construed. —

The language of the subsection (a) exception permitting the accused to offer evidence of a “pertinent” trait should be restrictively construed. State v. Bogle, 324 N.C. 190, 376 S.E.2d 745, 1989 N.C. LEXIS 95 (1989).

In a prosecution for the murder of a child, in which defendant offered evidence of his appropriate behavior around children, while defendant’s allegedly peaceable character was pertinent to the charge of first-degree murder, neither his character nor a trait of his character were essential elements of the charge or his defense, so elicitation of evidence about his character during direct testimony had to be accomplished by opinion or reputation testimony rather than specific opinion testimony, pursuant to G.S. 8C-1-404(a)(1) and G.S. 8C-1-405(a). State v. Murphy, 172 N.C. App. 734, 616 S.E.2d 567, 2005 N.C. App. LEXIS 1786 (2005), vacated in part, 361 N.C. 164, 696 S.E.2d 527, 2006 N.C. LEXIS 1398 (2006).

Lack of Mental Illness Not Pertinent. —

Evidence of the defendant’s general “psychological make-up,” including evidence of the lack of several mental problems, was not pertinent to the commission of a sexual assault, and, thus, was not admissible under the exception to the general bar against character evidence offered for the purpose of proving conduct in conformity therewith. State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738, 1998 N.C. App. LEXIS 1323 (1998).

Sexual Orientation Not Pertinent. —

Evidence offered by the defendant showing that the victim had a reputation for being a homosexual is not a pertinent character trait within the meaning of subsection (a)(2). State v. Laws, 345 N.C. 585, 481 S.E.2d 641, 1997 N.C. LEXIS 26 (1997).

Because an individual’s sexual orientation bears no relationship to the likelihood that one would threaten a sexual assault, it therefore can bear no relationship to defendant’s claim that he killed in self-defense in response to a threatened sexual assault. State v. Laws, 345 N.C. 585, 481 S.E.2d 641, 1997 N.C. LEXIS 26 (1997).

Military Record or Military Service. —

A good military record or military service is not relevant to defendant’s guilt or innocence in a rape case. State v. Mustafa, 113 N.C. App. 240, 437 S.E.2d 906, 1994 N.C. App. LEXIS 4, cert. denied, 336 N.C. 613, 447 S.E.2d 409, 1994 N.C. LEXIS 319 (1994).

Witness’ Beliefs About Defendant Not Evidence of Pertinent Trait. —

Defense question to rape defendant’s employment supervisor of whether he believed defendant was capable of raping anyone was not allowed as evidence of a pertinent character trait under subdivision (a)(1) of this rule. State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132, 1993 N.C. App. LEXIS 1094 (1993).

Violent Character. —

Evidence of a victim’s violent character is irrelevant in a homicide case when the defense of accident is raised. State v. Goodson, 341 N.C. 619, 461 S.E.2d 740, 1995 N.C. LEXIS 416 (1995).

Evidence regarding defendant’s alleged prior violent acts against his former girlfriend was not properly admitted under Rule 404(a) because the testimony of defendant and the several other defense witnesses was strictly limited to defendant’s actions and state of mind on the night of the alleged murder; while much of the testimony focused on defendant’s initial unwillingness to respond belligerently to the victim’s taunts, there was no instance where defendant interjected his character into the proceedings by proffering testimony tending to show he possessed a generally peaceful or non-violent disposition. State v. Dennison, 163 N.C. App. 375, 594 S.E.2d 82, 2004 N.C. App. LEXIS 398 (2004), rev'd, 359 N.C. 312, 608 S.E.2d 756, 2005 N.C. LEXIS 202 (2005).

Testimony from a witness who saw defendant’s victim breaking car windows at an automobile dealership should have been admitted during her murder trial, which ended in her conviction for second-degree murder, as an essential element of her assertion of self-defense under G.S. 8C-1-405(b); the evidence was relevant and admissible as evidence of the victim’s violent character to show the jury that defendant’s apprehension of death and bodily harm was reasonable. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

In defendant’s murder trial, defendant was not required to make an offer of proof regarding testimony that her victim had told her former employee that he was going to “shoot up his house” that was excluded when the trial court granted the state’s motion to strike the testimony. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Erroneous exclusion of testimony from a car dealership employee who saw defendant’s victim breaking car windows at the dealership, which should have been admitted during defendant’s murder trial as evidence of the victim’s violent character, was prejudicial even though defendant testified to the same incident on direct and redirect examination. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Substance of the testimony was apparent from the context within which the questions were asked under G.S. 8C-1-103(a)(2), the grounds for admitting the testimony as evidence of the victim’s violent character pertinent to defendant’s assertion of self-defense under G.S. 8C-1-404(a)(2) were apparent from the context under N.C. R. App. P. 10(b)(1), and the issue of the testimony’s admissibility was properly preserved for appellate review. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Because the use of specific instances of past conduct was limited to cases in which character was an essential element of the charge, claim, or defense, the trial court correctly excluded testimony regarding specific prior acts of violence by the victim in defendant’s trial for assault with a deadly weapon inflicting serious injury. State v. Bass, 371 N.C. 535, 819 S.E.2d 322, 2018 N.C. LEXIS 918 (2018).

Same — Irrelevant When Victim Unknown. —

Defendant did not know victim nor did he know anything about his reputation prior to altercation; thus, evidence of specific instances of victim’s violent character was irrelevant in regards to the reasonableness of defendant’s apprehension and need to use force, and the trial court properly denied its admission on this basis. State v. Ray, 125 N.C. App. 721, 482 S.E.2d 755, 1997 N.C. App. LEXIS 237 (1997).

Evidence of deceased’s criminal record cannot be received for purpose of establishing his reputation for violence. State v. Adams, 90 N.C. App. 145, 367 S.E.2d 362, 1988 N.C. App. LEXIS 367 (1988).

Drug Addiction Is Not Probative of Truthfulness or Untruthfulness. —

Cross-examination concerning defendant’s drug addiction was improper under G.S. 8C-1, Rule 608(b), because extrinsic evidence of drug addiction, standing alone, is not probative of defendant’s character for truthfulness or untruthfulness. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550, 1988 N.C. App. LEXIS 177 (1988).

Drug Use to Show Motive. —

In a prosecution for common law burglary and first-degree murder, evidence that defendant had been using cocaine was properly admitted to show her motive to commit the robbery. State v. Stephenson, 144 N.C. App. 465, 551 S.E.2d 858, 2001 N.C. App. LEXIS 535 (2001).

Prosecution May Introduce Character Evidence. —

This rule allows the prosecution to introduce evidence of a victim’s character only to rebut defendant’s evidence calling it into question. State v. Quick, 329 N.C. 1, 405 S.E.2d 179, 1991 N.C. LEXIS 408 (1991).

Self-defense Claim Does Not Interject Defendant’s Character Into Proceedings. —

Evidence of defendant’s alleged prior violent acts towards his former girlfriend was not properly admitted in defendant’s murder trial under Rule 405(b); defendant had maintained at trial that he used a knife in striking the victim in self-defense, because the victim had just struck him in the head with a beer bottle. Because raising a self-defense claim does not interject a defendant’s character into the proceedings, and a defendant’s character is not an essential element of a self-defense claim, evidence of defendant’s prior assaultive behavior towards a person other than the victim was not justified under Rule 405(b). State v. Dennison, 163 N.C. App. 375, 594 S.E.2d 82, 2004 N.C. App. LEXIS 398 (2004), rev'd, 359 N.C. 312, 608 S.E.2d 756, 2005 N.C. LEXIS 202 (2005).

Admission of Victim’s Character Evidence Not Plain Error. —

The admission of the evidence concerning decedent/wife’s good character before the defendant offered any evidence of her character was error but not plain error. State v. Jones, 137 N.C. App. 221, 527 S.E.2d 700, 2000 N.C. App. LEXIS 313 (2000).

Exclusion of Evidence of Character Traits Held Error. —

In a close case on the issue of whether homicide was committed in self-defense, where defendant demonstrated that the victim was a violent person who had directed his anger toward him in the past, and also offered a plausible explanation for his fear at the time he shot the victim, which was corroborated by two witnesses, evidence of favorable character traits of defendant other than peacefulness and truthfulness, such as, for example, being law-abiding, might have weighed heavily in the jury’s determination of whether the defendant acted in self-defense, or might have influenced the jury to return a verdict of voluntary manslaughter or second degree murder rather than first degree murder, and thus trial court’s unwarranted general prohibition of evidence of character traits other than peacefulness and truthfulness constituted reversible error entitling defendant to a new trial. State v. Squire, 341 N.C. 541, 364 S.E.2d 354 (1988).

Trial court erred in excluding testimony that defendant was respectful around children and interacted in a positive way with children, because it was relevant to whether defendant committed first degree statutory rape of a child and tended to make the facts central to the charges less probable than they would be without such evidence. State v. Walston, 229 N.C. App. 141, 747 S.E.2d 720, 2013 N.C. App. LEXIS 879 (2013), rev'd, 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014).

Trait of Being Respectful Towards Children Properly Excluded. —

Appellate court erred by holding that the trial court should have allowed defendant to introduce evidence of his being respectful towards children under this section because the evidence was not sufficiently tailored to a relevant issue at trial, as defendant provided no evidence that the trait of respectfulness had any bearing on a person’s tendency to sexually abuse children. State v. Walston, 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014).

Evidence Showed More Than Character. —

In a first-degree murder case, evidence of defendant’s having been charged with driving while impaired explained circumstances under which he was taken into custody, and evidence of defendant’s refusal to take a breathalyzer test explained the circumstances under which defendant was kept waiting in the Virginia Public Safety Center where he confessed to the crimes for which he was on trial; all of this evidence tended ultimately to show the circumstances under which that confession was made and was thus relevant on the issues of the confession’s voluntariness and credibility. The evidence cast more light on these important questions than it did on defendant’s character; therefore, its probative value outweighed its prejudicial effect. State v. Rannels, 333 N.C. 644, 430 S.E.2d 254, 1993 N.C. LEXIS 245 (1993).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent’s child were admissible in a wrongful death and medical malpractice action because experts for both parties relied on the records to form their own opinions of the case, particularly with regard to the issues of proximate cause and damages. Moreover, the records were not admitted to show character evidence. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150, 2015 N.C. App. LEXIS 905 (2015).

Admission of Evidence Prejudicial Error. —

There was no relevancy for the admission of defendant’s past violent behavior toward his wife to prove the character of the defendant in relation to motive, opportunity, or intent and the admission of the evidence constituted prejudicial error requiring a new trial. State v. Brooks, 113 N.C. App. 451, 439 S.E.2d 234, 1994 N.C. App. LEXIS 108 (1994).

Witness’s statement that defendant was an “asset” to the witness in the witness’s drug trafficking was tantamount to identifying defendant as a drug dealer and was improperly admitted; since there was no other conclusive evidence that defendant was a drug trafficker, defendant was granted a new trial on drug trafficking charges. State v. Yancey, 155 N.C. App. 609, 573 S.E.2d 243, 2002 N.C. App. LEXIS 1577 (2002).

Evidence of defendant’s prior incarceration constituted inadmissible character evidence that prejudiced his defense because the State improperly elicited that evidence to show defendant’s propensity to commit the drug crimes for which he was on trial; the State could not purport to rebut the testimony of defendant’s girlfriend with bad character evidence as she did not testify as to defendant’s reputation for being law-abiding; and there was a reasonable possibility that, had the error not been committed, the jury would have reached a different result, as the evidence against defendant was largely circumstantial, and a jury could have reasonably concluded that the marijuana and cocaine were attributable to defendant’s roommates. State v. Rios, 251 N.C. App. 318, 795 S.E.2d 234, 2016 N.C. App. LEXIS 1317 (2016).

Admission of Evidence Not Prejudicial. —

The trial court erred in admitting officer’s testimony as a drug dealer; however, as defendant’s testimony alone was enough from which a reasonable juror could conclude that defendant possessed the marijuana and cocaine with the intent to sell and deliver, defendant was not prejudiced by the admission of the character evidence against him. State v. Taylor, 117 N.C. App. 644, 453 S.E.2d 225, 1995 N.C. App. LEXIS 60 (1995).

Witnesses’ testimony regarding defendant’s activities hours before murders occurred explained why witness was found walking away from crime scene and provided evidence confirming state of mind, method of operation, and course of conduct of defendant and his cohorts; thus, the testimony was not inadmissible character evidence. State v. DeCastro, 342 N.C. 667, 467 S.E.2d 653, 1996 N.C. LEXIS 146, cert. denied, 519 U.S. 896, 117 S. Ct. 241, 136 L. Ed. 2d 170, 1996 U.S. LEXIS 5884 (1996).

Although it was error for the trial court to permit the State to ask defendant a question about his temper, the error was not prejudicial as there was other evidence at trial that was sufficient to support defendant’s first-degree felony murder conviction. State v. Stafford, 150 N.C. App. 566, 564 S.E.2d 60, 2002 N.C. App. LEXIS 578 (2002), cert. denied, 357 N.C. 169, 581 S.E.2d 444, 2003 N.C. LEXIS 511 (2003).

Evidence of defendant’s possession of pornographic magazines and videos was improperly admitted as evidence of defendant’s intent to engage in a sexual relationship with the victim, or as evidence of defendant’s preparation, plan, knowledge or absence of mistake in defendant’s trial for taking indecent liberties with a child and first degree sex offense with a female child under the age of 13; however, the error was not prejudicial under G.S. 15A-1443. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289, 2002 N.C. App. LEXIS 973 (2002).

Although the admission of reputation testimony violated G.S. 8C-1, Rule 404(a), the error was not prejudicial because the evidence regarding one witness’s possession of a crack pipe was cumulative and there was ample evidence to convict defendant without the evidence of his brother’s reputation as a dealer of drugs. State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754, 2005 N.C. App. LEXIS 1897 (2005).

In a case in which defendant appealed his conviction for possession with intent to sell and deliver cocaine and the sale of cocaine, he unsuccessfully argued that he had to receive a new trial because the trial court erred in allowing character evidence regarding defendant being a drug dealer. That claim was subject to plain error review, and, even if the trial court erred in allowing a detective to testify that defendant was a known drug dealer, defendant had failed to show any prejudice, much less that absent the error, the jury probably would have reached a different result. State v. Batchelor, 202 N.C. App. 733, 690 S.E.2d 53, 2010 N.C. App. LEXIS 363 (2010).

Even if the trial court erred by admitting a forensic psychologist’s report and testimony, any error was non-prejudicial because the State presented other abundant evidence of defendant’s guilt; defendant failed to carry his burden of showing that had the psychologist’s report and corresponding testimony not been admitted at trial, a reasonable possibility existed that the jury would have reached a different result; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Trial court did not err in admitting evidence about a prior, violent incident in order to prove defendant’s identity because of the similarities between the incidents and relatively short time periods between the incidents. State v. Thomas, 268 N.C. App. 121, 834 S.E.2d 654, 2019 N.C. App. LEXIS 846 (2019).

III.Other Crimes and Wrongs

Denial of pre-trial disclosure of G.S. 8C-1, Rule 404(b) evidence did not deprive defendant of a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and N.C. Const., Article I, §§ 19 and 23. State v. Parker, 2000 N.C. App. LEXIS 1107 (N.C. Ct. App. Oct. 3, 2000), op. withdrawn, sub. op., 140 N.C. App. 169, 539 S.E.2d 656, 2000 N.C. App. LEXIS 1218 (2000).

Res Gestae Rationale Survives. —

Admission of evidence of a criminal defendant’s prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, is known variously as the “same transaction” rule, the “complete story” exception, and the “course of conduct” exception. Such evidence is admissible if it “forms part of the history of the event or serves to enhance the natural development of the facts”; and this rationale, established in pre-Rules cases, survives the adoption of the Rules of Evidence. State v. Agee, 326 N.C. 542, 391 S.E.2d 171, 1990 N.C. LEXIS 244 (1990).

Applicability of Subsection (b). —

Subsection (b) of this rule has been interpreted as applicable only to parties and, in a criminal case, would usually be applicable only to a defendant. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84, 1986 N.C. LEXIS 1897 (1986).

Evidence of defendant’s other crimes was not admitted pursuant to G.S. 8C-1-404(b), but was admitted to establish one of the elements of a crime that the State of North Carolina was required to prove — possession of a firearm by a felon. Thus, a limiting instruction regarding evidence of other crimes admitted pursuant to Rule 404(b) was not appropriate and the trial court did not err in failing to give that instruction. State v. Cromartie, 177 N.C. App. 73, 627 S.E.2d 677, 2006 N.C. App. LEXIS 701 (2006).

Admission of a witness’s statement that defendant was “a man with a machete riding around” did not implicate G.S. 8C-1, N.C. R. Evid. 404(b), because wielding a machete was not a character trait, and the statement was a description of what the witness saw and his reason for calling for help; the witness was the victim’s brother. State v. Sessoms, 226 N.C. App. 381, 741 S.E.2d 449, 2013 N.C. App. LEXIS 340 (2013).

Basis for Exception in Subsection (b). —

The exception noted in subsection (b) of this rule is grounded in the logic of inferring from the sequence of events comprising an offense or from its particular features that the same person committed the offense more than once, aware on at least the latter occasion of its consequences. State v. Artis, 325 N.C. 278, 384 S.E.2d 470, 1989 N.C. LEXIS 482 (1989), vacated, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604, 1990 U.S. LEXIS 1467 (1990) (in light of) State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

Defendant’s robbery and kidnapping victim was properly allowed to testify at defendant’s trial for the kidnapping, robbery, rape, and murder of two victims as the kidnapping, threatening, and robbing of the witness was particularly similar to the murder allegations, indicating the same person committed the crimes charged. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61, 2002 N.C. LEXIS 676 (2002), cert. denied, 537 U.S. 1133, 123 S. Ct. 916, 154 L. Ed. 2d 823, 2003 U.S. LEXIS 390 (2003), writ denied, 359 N.C. 284, 610 S.E.2d 382, 2005 N.C. LEXIS 32 (2005), writ denied, 656 S.E.2d 594, 2007 N.C. LEXIS 1244 (2007), writ denied, 362 N.C. 90, 2007 N.C. LEXIS 1475 (2007).

The use of evidence as permitted under subsection (b) of this section is guided by two constraints: similarity and temporal proximity. When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalties become less striking, and the probative value of the analogy attaches less to the acts than the character of the actor. State v. Artis, 325 N.C. 278, 384 S.E.2d 470, 1989 N.C. LEXIS 482 (1989), vacated, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604, 1990 U.S. LEXIS 1467 (1990) (in light of) State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

The list of purposes in the second sentence of subsection (b) of this rule is neither exclusive nor exhaustive. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

The list of permissible purposes for admission of other crimes evidence is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant’s propensity to commit the crime. State v. Hipps, 348 N.C. 377, 501 S.E.2d 625, 1998 N.C. LEXIS 330 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114, 1999 U.S. LEXIS 1594 (1999).

The statutory list of permissible purposes for other crimes evidence is not exclusive and the fact that evidence cannot be brought within a listed category does not necessarily mean that it is inadmissible. State v. Blackwell, 133 N.C. App. 31, 514 S.E.2d 116, 1999 N.C. App. LEXIS 341 (1999).

The list of permissible purposes for admission of “other crimes” evidence is not exclusive; thus, testimony from a police officer that defendant was arrested while driving a vehicle that had been reported stolen was properly admitted to explain defendant’s presence in a photographic lineup conducted in a separate armed robbery investigation. State v. McCree, 160 N.C. App. 19, 584 S.E.2d 348, 2003 N.C. App. LEXIS 1667 (2003).

Admissibility. —

“Other crimes, wrongs, or acts” evidence is admissible only if offered for a proper purpose. A proper purpose includes, among other things, proof of a defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376, 1991 N.C. App. LEXIS 1122 (1991).

The admissibility of “other crimes, wrongs, or acts” evidence is determined through an application of subsection (b) of this rule, and G.S. 8C-1, Rules 402, 401, 403, 104(b), and 105. State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376, 1991 N.C. App. LEXIS 1122 (1991).

For evidence of defendant’s prior crimes or bad acts to be admissible to show the identity of the defendant as the perpetrator of the crime for which he is being tried, there must be some unusual facts present in both crimes or particularly similar acts that would indicate that the same person committed both crimes, and while the similarities need not be unique and bizarre, they must tend to support a reasonable inference that the same person committed both the earlier and later acts. State v. Gary, 348 N.C. 510, 501 S.E.2d 57, 1998 N.C. LEXIS 323 (1998).

In a prosecution of defendant for possession of a firearm by a felon, the trial court did not err in allowing the State to introduce evidence that defendant’s probationary sentence was revoked because it was relevant to prove defendant’s status as a convicted felon, and was therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). To the extent that the evidence tended to show that defendant committed inadmissible prior bad acts, the trial court’s limiting instructions to the jury were sufficient to cure any prejudice against him. State v. Boston, 165 N.C. App. 214, 598 S.E.2d 163, 2004 N.C. App. LEXIS 1159 (2004).

Prior acts evidence was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b); notable similarities existed between defendant’s prior drug related acts and the crimes he was charged with, the prior acts were not too remote in time, and the trial court guarded against prejudice by giving a limiting instruction. State v. Stevenson, 169 N.C. App. 797, 611 S.E.2d 206, 2005 N.C. App. LEXIS 791 (2005).

Trial court did not err in admitting evidence that defendant was in a gang and had served time in jail; even though such evidence incidentally touched on his bad character, it was also relevant to establish defendant’s identity, and was admissible for that purpose. State v. Medina, 174 N.C. App. 723, 622 S.E.2d 176, 2005 N.C. App. LEXIS 2608 (2005).

Defendant’s statement to officers that he was expected to make a living outside prison showed a motive for the robbery and his statement that he wanted to go back to prison showed a possible motive to commit a crime in order to accomplish that objective; the statements were made by defendant himself shortly after the crime and were distinguishable from other evidence, and as such, the statements were probative of motive and intent, so there was no error in admission of the statements. State v. al-Bayyinah, 359 N.C. 741, 616 S.E.2d 500, 2005 N.C. LEXIS 844 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528, 2006 U.S. LEXIS 3148 (2006), cert. denied, 700 S.E.2d 925, 2010 N.C. LEXIS 588 (2010).

Trial court properly admitted evidence of the defendant’s prior conduct to establish malice on a second-degree murder charge where it was clear that the evidence was admitted to show that he had consumed alcohol with two other members of the rescue squad, he responded to a rescue call despite knowing that the squad’s bylaws prohibited members from responding after consuming alcohol, he drove erratically, and the jury was given a limiting instruction that the evidence was received solely for the purpose of establishing malice. State v. Hayes, 183 N.C. App. 602, 644 S.E.2d 655, 2007 N.C. App. LEXIS 1160 (2007).

In defendant’s criminal trial on a variety of charges, arising from a vehicular incident that resulted in deaths, a trial court properly allowed admission of testimony regarding defendant’s prior failure to take a breath test and defendant’s conviction for driving while intoxicated, as such was relevant under N.C. R. Evid. 401 and 402 to show defendant’s knowledge that the driver’s license was suspended and to show malice, which was an element of one of the charged offenses; further, the evidence was properly admitted for the purpose of showing defendant’s intent and it was not unfairly prejudicial under N.C. R. Evid. 404(b) and 403. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299, 2007 N.C. App. LEXIS 2253 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214, 2009 N.C. LEXIS 823 (2009).

Trial court did not err in admitting the testimony of a witness that defendant on a previous occasion had sexually touched the witness, who was a minor at the time, without the consent of the witness. The evidence was admitted not to show defendant’s character, but, instead was admitted pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) to show absence of mistake of age, specific intent in regard to a kidnapping charge, and an intent for sexual gratification in defendant’s current case. State v. Bowman, 188 N.C. App. 635, 656 S.E.2d 638, 2008 N.C. App. LEXIS 281 (2008).

Evidence of defendant’s prior conduct was admissible under G.S. 8C-1, N.C. R. Evid. 404(b) to prove motive, intent, knowledge, and absence of mistake, and the appellate court could not say that its admission or the limiting instructions were erroneous or influenced the jury such that, without them, a different verdict would have been reached. State v. Cousar, 190 N.C. App. 750, 660 S.E.2d 902, 2008 N.C. App. LEXIS 1076 (2008).

While the trial court erred when it admitted a witness’s testimony that defendant was previously incarcerated and used marijuana while living with the witness and the victim, the witness’s daughter and the alleged victim of a sexual assault, as the evidence was admitted before defendant placed his credibility at issue by testifying, the error did not rise to the level of plain error. State v. Streater, 673 S.E.2d 365, 2009 N.C. App. LEXIS 211 (Ct. App.), sub. op., 197 N.C. App. 632, 678 S.E.2d 367, 2009 N.C. App. LEXIS 1065 (2009).

Trial court properly admitted a witness’s testimony that she walked in on defendant “whooping the victim with a belt” pursuant to G.S. 8C-1, N.C. R. Evid. 404(b), because the State’s evidence tended to show that the victim began “wetting the bed” around the time of the alleged sexual abuse; therefore, the witness’s testimony about the “whooping” incident tended to establish defendant’s intent to conceal the alleged sexual abuse. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367, 2009 N.C. App. LEXIS 1065 (2009), vacated, 2011 N.C. App. LEXIS 380 (N.C. Ct. App. Mar. 1, 2011).

Although the trial court erred when it admitted a witness’s testimony that defendant was previously incarcerated and used marijuana while living with her and the victim because the evidence was admitted before defendant placed his credibility at issue by testifying, the court of appeals was not convinced that absent the error the jury probably would have reached a different verdict in light of other similar evidence property admitted at trial. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367, 2009 N.C. App. LEXIS 1065 (2009), vacated, 2011 N.C. App. LEXIS 380 (N.C. Ct. App. Mar. 1, 2011).

In a case in which defendant was convicted by a jury on two counts first-degree murder on the bases of felony murder and of malice, premeditation and deliberation and, after a capital sentencing proceeding, he was sentenced to two consecutive terms of life imprisonment without the possibility of parole, defendant argued unsuccessfully on appeal that the trial court’s decision to admit G.S. 8C-1, N.C. R. Evid. 404(b) evidence about his 1995 assault on his estranged wife, one of the murder victims, unfairly prejudiced him in violation of G.S. 8C-1, N.C. R. Evid. 403. The trial court admitted evidence of the 1995 assault for the purposes of showing motive, malice, hatred, ill-will and intent; that evidence had probative value for all of those purposes and was properly admissible. State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437, 2009 N.C. App. LEXIS 1613 (2009).

In requiring the exclusion of evidence otherwise admissible pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) under G.S. 8C-1, N.C. R. Evid. 403, where the probative value of such evidence depends upon defendant’s having in fact committed the prior alleged offense, his acquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant; such evidence is thus barred by N.C. R. Evid. 403. This does not bar the admission of testimony relating to other bad acts for which the defendant was acquitted if the other bad acts and the crime charged were part of a single continuous transaction. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354, 2009 N.C. App. LEXIS 1389 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738, 2010 N.C. LEXIS 424 (2010).

Trial court erred by admitting evidence seized at the time of his February 10, 2005, arrest for alleged violations of the controlled substance laws similar to those under consideration in the instant case and defendant was entitled to a new trial in the cases with which he was charged with prescription drug-related offenses; each of the reasons listed by the trial court as justifications for the admission of the disputed evidence hinged upon a determination that defendant actually committed an offense for which he was later acquitted. State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354, 2009 N.C. App. LEXIS 1389 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738, 2010 N.C. LEXIS 424 (2010).

In defendant’s indecent liberties with a child case, the court erred by admitting evidence that defendant sexually assaulted a four-year-old boy 18 years before because there was no evidence of an ongoing pattern of crimes between the 1990 offense and the instant case, but only the single prior conviction for an offense over 18 years old. State v. Gray, 210 N.C. App. 493, 709 S.E.2d 477, 2011 N.C. App. LEXIS 602 (2011).

Evidence defendant previously assaulted the victim was properly admitted, as it was relevant to whether defendant intended to disable the victim or whether she accidentally struck the victim’s finger and did not intend to maim him. State v. Flaugher, 214 N.C. App. 370, 713 S.E.2d 576, 2011 N.C. App. LEXIS 1754 (2011).

Evidence regarding defendant’s shoplifting was relevant for a material purpose other than propensity since it went to why defendant would engage in a high speed police chase to avoid having the police search the car and the probative value was not outweighed by any unfair prejudice to defendant. State v. Rollins, 220 N.C. App. 443, 725 S.E.2d 456, 2012 N.C. App. LEXIS 655 (2012).

Citations showing that defendant had been repeatedly directed that driving without a license was unlawful but persisted in doing so were relevant to malice which was an essential element of second degree murder, the crime with which defendant was charged; thus, they were admissible. State v. Rollins, 220 N.C. App. 443, 725 S.E.2d 456, 2012 N.C. App. LEXIS 655 (2012).

Where the State’s evidence, which suggested defendant was continuing to try to escape regardless of the collision and in callous disregard for the condition of his passengers, supported a finding of malice, the evidence was admissible since malice was an element of second degree murder, the crime with which defendant was charged. State v. Rollins, 220 N.C. App. 443, 725 S.E.2d 456, 2012 N.C. App. LEXIS 655 (2012).

Trial court did not err when it admitted evidence of a previous purse-snatching crime committed by the defendant because common locations, victims, type of crime, and proximity in time were sufficiently similar that it would indicate that the same person committed both crimes. State v. Gordon, 228 N.C. App. 335, 745 S.E.2d 361, 2013 N.C. App. LEXIS 752 (2013).

Trial court did not err in allowing the testimony of two women pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) (2013), where the testimony revealed numerous unique details of common locations, victims, and type of crime that rose above facts generic to the act of public exposure, the fact that the instant exposure also happened to take place in the presence of a child was not dispositive of the other similarities between the instant event and those described in the 404(b) testimony, and case law did not require that the 404(b) testimony had to be completely identical to the act charged. State v. Waddell, 239 N.C. App. 202, 767 S.E.2d 921, 2015 N.C. App. LEXIS 54 (2015).

Trial court did not err by admitting evidence concerning defendant’s altercation with a prior boyfriend during her murder trial where there were strong similarities between the murder and the prior incident, as they both involved defendant and her current boyfriend, escalation of an argument that led to the use of force, defendant’s further escalation of the argument, and her deliberate decision to obtain a knife from the kitchen, and the 14-month gab between the incidents was not too remote. State v. Mangum, 242 N.C. App. 202, 773 S.E.2d 555, 2015 N.C. App. LEXIS 574 (2015).

Trial court did not err by admitting into evidence under G.S. 8C-1, N.C. R. Evid. 404 portions of an audiotape and transcript that included a conversation between defendant and an informant while they were incarcerated where the informant’s credibility was crucial to the State’s case, the trial court gave the jury a limiting instruction. The admission of the evidence did not violate G.S. 8C-1, N.C. R. Evid. 403, because the relevance of the redacted version of the transcript, when combined with the limiting instruction, substantially outweighed any unfair prejudice. State v. Carvalho, 243 N.C. App. 394, 777 S.E.2d 78, 2015 N.C. App. LEXIS 811 (2015), cert. denied, 138 S. Ct. 59, 199 L. Ed. 2d 19, 2017 U.S. LEXIS 4741 (2017).

Trial court did not err by admitting testimony from several former high school wrestlers that defendant utilized various hazing techniques against his wrestlers because the evidence tended to show that defendant exerted great physical and psychological power over his students, singled out small and younger wrestlers for particularly harsh treatment, and subjected them to degrading and often quasi-sexual situations and therefore had probative value beyond whether defendant had a propensity for aberrant behavior. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45, 2015 N.C. App. LEXIS 1037 (2015).

Trial court did not err by overruling defendant’s objections under this rule to the admission of the consensual sexual activity between defendant and his wife because the wife’s testimony was relevant to the victim’s allegations as it showed a common scheme or plan and was sufficiently similar to the victim’s allegations of sexual abuse. The probative value of the evidence was not outweighed by the danger of undue prejudice because it was of great probative value and was not so sensitive to be potentially inflammatory to the jury. State v. Godbey, 250 N.C. App. 424, 792 S.E.2d 820, 2016 N.C. App. LEXIS 1172 (2016).

Trial court did not err by admitting evidence at defendant’s trial for arson that defendant had four years earlier committed arson because the evidence was probative of defendant’s intent and was sufficiently similar, logically relevant, and not too remote in time. Both the arson for which defendant was tried and the prior arson were set during the nighttime on the exterior of a building at an entrance when defendant was intoxicated, knew the buildings to be occupied, and was angry about a perceived harm against defendant by the occupant. State v. Wilson-Angeles, 251 N.C. App. 886, 795 S.E.2d 657, 2017 N.C. App. LEXIS 55 (2017).

Evidence of the disappearance of defendant’s co-worker was properly admitted in defendant’s trial for murdering his girlfriend; both women were residents of the same area, disappeared within nine months of each other, had legal, financial, and substance abuse problems, and had sustained relationships with defendant. The co-worker’s disappearance and the police investigation that followed led to the discovery of the girlfriend’s body, such that the disappearances and investigations of both were inextricably intertwined. N.C. v. Bradley, 279 N.C. App. 389, 864 S.E.2d 850, 2021- NCCOA-495, 2021 N.C. App. LEXIS 513 (2021).

Failure to Request Limiting Instruction. —

In a sexual abuse prosecution, where defendant failed to request a limiting instruction, under G.S. 8C-1, N.C. R. Evid. 105, as to evidence admitted under G.S. 8C-1, N.C. R. Evid. 404(b), he could not complain that the trial court should have intervened ex mero motu to give such an instruction. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643, 2002 N.C. App. LEXIS 1606 (2002).

Trial Court’s Unintentional Misstatement While Giving “Other Crimes” Instruction Was Not Plain Error. —

Considered in the context of the entire jury instruction addressing “other crimes” evidence, it was clear that the trial court’s misstatement of the law was an unintentional slip of the tongue and did not amount to plain error; the trial court apparently intended to mirror the language of N.C. R. Evid. 404(b), but used the incorrect phrase “but to show,” rather than the correct phrase “in order to show.” In light of the trial court’s previous instruction regarding the only proper use of the evidence, the trial court’s subsequent misstatement concerning the purposes for which the jury may have considered the evidence was immaterial, and, when taken as a whole, the jury could not have been misled by the trial court’s charge. State v. Hazelwood, 187 N.C. App. 94, 652 S.E.2d 63, 2007 N.C. App. LEXIS 2311 (2007), cert. denied, 363 N.C. 133, 673 S.E.2d 867, 2009 N.C. LEXIS 117 (2009), cert. denied, 558 U.S. 1013, 130 S. Ct. 553, 175 L. Ed. 2d 385, 2009 U.S. LEXIS 8077 (2009).

When prior incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in G.S. 8C-1, Rule 403. State v. West, 103 N.C. App. 1, 404 S.E.2d 191, 1991 N.C. App. LEXIS 578 (1991).

A prior act or crime is “similar” if, etc. there are some unusual facts present indicating that the same person committed both the earlier offense and the present one. However, the similarities between the two incidents need not be “unique and bizarre.” State v. Sneeden, 108 N.C. App. 506, 424 S.E.2d 449, 1993 N.C. App. LEXIS 86 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218, 1994 N.C. LEXIS 309 (1994).

Evidence of defendant’s attempt to burn a second victim’s body was admissible where the unusual, unique and bizarre circumstances of the two deaths — the dismemberment of the bodies, the severing of the ears, the saving of those ears, and the building of two bonfires — revealed a contrived, common plan showing the same person committed both crimes. State v. Sokolowski, 351 N.C. 137, 522 S.E.2d 65, 1999 N.C. LEXIS 1249 (1999).

Evidence presented at a suppression hearing was sufficient to link defendant to a later break-in, including DNA evidence collected at the scene of the second break-in. The crimes were substantially similar in that a window at a convenience store in Charlotte was broken, cigarettes were taken, the crimes occurred a short time apart and at the same time of day, and defendant’s blood was found at both scenes; they were therefore admissible under G.S. 8C-1, N.C. R. Evid. 404(b). Also, the evidence was relevant on the issue of whether defendant committed the charged crime, pursuant to G.S. 8C-1, N.C. R. Evid. 401. State v. Matthews, 218 N.C. App. 277, 720 S.E.2d 829, 2012 N.C. App. LEXIS 54 (2012).

Defendant’s contention that the perpetrator’s lack of a “do-rag” during the second crime prevented the crimes from being substantially similar amounts to requiring facts rising to a level of unique and bizarre, which case law did not require. State v. Gordon, 228 N.C. App. 335, 745 S.E.2d 361, 2013 N.C. App. LEXIS 752 (2013).

The “acid test” for whether evidence of other crimes properly falls within the identity provision in subsection (b) of this rule and its common law precursor is its logical relevancy to the particular purpose for which it is sought to be introduced. State v. Jeter, 326 N.C. 457, 389 S.E.2d 805, 1990 N.C. LEXIS 161 (1990).

The list of purposes in the last sentence of subsection (b) of this rule is not exclusive, and the fact that evidence cannot be brought within a category does not necessarily mean that the evidence is inadmissible. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

The list in the second sentence of subsection (b) of this rule contains examples of theories of relevancy under which extrinsic conduct evidence may properly be used as circumstantial proof of a controverted fact at trial (for instance, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, etc.). This list is neither exclusive nor exhaustive. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84, 1986 N.C. LEXIS 1897 (1986).

The second sentence of subsection (b) of this rule contains a list of theories of relevancy which is neither exclusive nor exhaustive. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

The list of other purposes contained within subsection (b) of this rule is nonexclusive, and thus evidence not falling within these categories may be admissible. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Challenges Made Pursuant to This Section Must Follow Proper Procedure. —

The court would not hear the defendant’s challenge, pursuant to this section, to the introduction of evidence of past acts of domestic and sexual violence against five women in his trial for the murder and dismemberment of victim where his pretrial motion in limine did not preserve the question for appeal; where he failed to object during trial to the admission of the evidence of prior bad acts; and where he offered no explanation, analysis or specific contention in his appellate brief to support his challenge. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713, 2000 N.C. LEXIS 895 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5838 (2001).

Failure to Object Not Ineffective Assistance of Counsel. —

In a sexual abuse prosecution, defendant did not show that he was deprived of the effective assistance of counsel due to his attorney’s failure to object to the admission of evidence under G.S. 8C-1, N.C. R. Evid. 404(b), because he did not show that, absent this error, the outcome of his trial would have been different. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643, 2002 N.C. App. LEXIS 1606 (2002).

Defense counsel was not ineffective for failing to object to evidence of defendant’s involvement in another sexual assault of a different female victim where it was relevant to prove the defendant’s identity as the victim’s attacker and it explained why officers identified the defendant as a suspect and how they obtained the defendant’s DNA, which matched DNA samples collected after the victim’s assault. State v. Gates, 248 N.C. App. 732, 789 S.E.2d 880, 2016 N.C. App. LEXIS 821 (2016).

Erroneous Admission Cured by Another Proper Purpose. —

Trial court’s admission of the testimonies of two prior rape victims to show victim’s lack of consent was error but not prejudicial error because the evidence was admissible to show a common plan or purpose. State v. Harris, 140 N.C. App. 208, 535 S.E.2d 614, 2000 N.C. App. LEXIS 1116 (2000).

Witness’s testimony about defendant’s prior DWI was erroneously admitted; however, the error was harmless because defendant took the stand to testify on his own behalf and revealed his arrest record and prior criminal record, including the DWI, on direct examination. State v. McMillian, 169 N.C. App. 160, 609 S.E.2d 265, 2005 N.C. App. LEXIS 544 (2005).

Trial court did not abuse its discretion in deferring a ruling on motion in limine to suppress subsection (b) evidence of the underlying facts of prior convictions. While it may have been preferable for the court to have ruled on this motion earlier, the court’s handling of the matter and its basis for deferred ruling were reasonable and did not constitute an abuse of discretion. State v. Barber, 120 N.C. App. 505, 463 S.E.2d 405, 1995 N.C. App. LEXIS 922 (1995).

Improper Admission Must Be Basis for Assignment of Record. —

In a sexual abuse prosecution, defendant’s argument that the trial court improperly admitted victim testimony under G.S. 8C-1, N.C. R. Evid. 404(b) without making specific findings of fact as to “sufficient similarity” and “remoteness in time” could not be considered, under N.C. R. App. P. 10(a), because this was not made the basis of any assignment of error in the record. State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643, 2002 N.C. App. LEXIS 1606 (2002).

Court’s ruling that defendant’s prior drug deals could only come in if he “opened the door” by taking the stand and denying he had ever dealt drugs was upheld where defendant did not show prejudice because he did not make an offer of proof regarding his testimony, and there was no evidence as to what his factual defense would have been had the State revealed to him those acts it intended to prove, under section (b) of this Rule, and those acts it would attempt to elicit, should he testify, under G.S. 8C-1, Rule 608(b). State v. Manning, 139 N.C. App. 454, 534 S.E.2d 219, 2000 N.C. App. LEXIS 983 (2000), aff'd, 353 N.C. 449, 545 S.E.2d 211, 2001 N.C. LEXIS 427 (2001).

Testimony of a defendant’s alleged prior drug sale in order to show motive and intent to possess cocaine was inadmissible and admission of testimony was prejudicial error requiring that defendant be granted a new trial. State v. Williams, 156 N.C. App. 661, 577 S.E.2d 143, 2003 N.C. App. LEXIS 181 (2003).

Past incidents of drug sales between defendant and the same buyer as in the charged crime were sufficiently similar to the charged crime to be admitted under G.S. 8C-1, Rule 404, because in all occurrences, the buyer called defendant prior to the sale, the parties met at an agreed upon place, defendant and the buyer sat in one of their cars and talked before concluding the sale, and defendant sold a similar amount of cocaine at a similar price. Additionally, all incidents occurred within the prior two years, and the trial court gave a limiting instruction. State v. Hargrave, 198 N.C. App. 579, 680 S.E.2d 254, 2009 N.C. App. LEXIS 1348 (2009).

When evidence reasonably tends to prove a material fact in issue in the crime charged, it will not be rejected merely because it also proves defendant guilty of another crime. State v. White, 101 N.C. App. 593, 401 S.E.2d 106, 1991 N.C. App. LEXIS 143 (1991).

Prior Violent Acts of Defendant. —

Court did not err in allowing the State to put defendant’s character into evidence by presenting specific instances of violent conduct by defendant, where defendant opened the door to the State’s subsequent questions by portraying herself as a good mother. State v. Burgess, 134 N.C. App. 632, 518 S.E.2d 209, 1999 N.C. App. LEXIS 866 (1999).

Evidence of defendant’s prior assault on another victim was admissible to show common scheme and intent where the prior assault and the current charges were similar in nature; in both instances the victims, similar in age, visited various residences or places in which they were unfamiliar and then were taken by automobile to isolated areas at night, defendant told the victims something was wrong with the automobile, asked the victims to get out of the automobile, and then proceeded to sexually assault them. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404, 2000 N.C. App. LEXIS 1403 (2000).

Evidence of an assault and attempted robbery involving the defendant that took place two days before murders was admissible where the closeness in both geography and time, the similar nature of the assault, and the connection between the bullets found at both scenes presented sufficient similarities for the evidence’s admissibility. State v. Lytch, 142 N.C. App. 576, 544 S.E.2d 570, 2001 N.C. App. LEXIS 188 (2001), aff'd, 355 N.C. 270, 559 S.E.2d 547, 2002 N.C. LEXIS 184 (2002).

Evidence of murder defendant’s prior assault on the victim, a few months before the act which caused her death, was properly admitted under G.S. 8C-1, Rule 404(b), because it tended to show malice, premeditation, deliberation, intent and ill will on defendant’s part, and was thus relevant to an issue other than defendant’s character. State v. Harris, 149 N.C. App. 398, 562 S.E.2d 547, 2002 N.C. App. LEXIS 411 (2002).

Trial court did not err in admitting evidence about a prior, violent incident in order to prove defendant’s identity because there were common elements of the prior incident with the incidents defendant was being charged with, including that the perpetrator wore a white hockey mask similar to the one seized from defendant, the targets were all suspected drug dealers or living with suspected drug dealers, the attacks all took place at night at the victims’ homes, defendant had an accomplice, and the incidents took place within a month or two of each other and within the same city. State v. Thomas, 268 N.C. App. 121, 834 S.E.2d 654, 2019 N.C. App. LEXIS 846 (2019).

Prior Violent Act By Victim. —

Where a defendant seeks under subsection (b) to use evidence of a prior violent act by the victim to prove the defendant’s state of mind at the time he killed the victim, the defendant must show that he was aware of the prior act and that his awareness somehow was related to the killing. State v. Strickland, 346 N.C. 443, 488 S.E.2d 194, 1997 N.C. LEXIS 468 (1997), cert. denied, 522 U.S. 1078, 118 S. Ct. 858, 139 L. Ed. 2d 757, 1998 U.S. LEXIS 524 (1998).

Pursuant to subsection (b) of this rule, the trial court properly excluded from the defendant’s murder trial the testimony of a man whom the victim had shot earlier because that man admitted that he was the aggressor in the shooting incident, whereas, the defendant was claiming at his trial that the victim was the aggressor in the shooting; thus, the testimony of the prior act was not relevant to the victim’s aggressiveness or propensity for violence. State v. Nance, 157 N.C. App. 434, 579 S.E.2d 456, 2003 N.C. App. LEXIS 750 (2003).

Although a trial court erred in excluding under G.S. 8C-1, N.C. R. Evid. 404(b) copies of the victim’s convictions because they corroborated testimony about the victim’s violent past, defendant failed to meet his burden, pursuant to G.S. 15A-1443(a), of proving that the erroneous exclusion of the evidence was prejudicial. State v. Jacobs, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010).

Prior Act of Witness. —

The trial court did not err by excluding evidence of witness’s prior knife threat on a police officer where the record revealed no unusual facts surrounding the knife threat that were also present in the circumstances surrounding the victim’s death. State v. Hamilton, 351 N.C. 14, 519 S.E.2d 514, 1999 N.C. LEXIS 1000 (1999), cert. denied, 529 U.S. 1102, 120 S. Ct. 1841, 146 L. Ed. 2d 783, 2000 U.S. LEXIS 3091 (2000).

Evidence of previous threats is admissible in trials for first degree murder to prove premeditation and deliberation, and the remoteness in time of the threat goes to its weight, but does not make it inadmissible. State v. Cox, 344 N.C. 184, 472 S.E.2d 760, 1996 N.C. LEXIS 406 (1996).

Where an accident is alleged, evidence of similar acts is more probative than in cases in which an accident is not alleged. State v. Stager, 329 N.C. 278, 406 S.E.2d 876, 1991 N.C. LEXIS 522 (1991).

When an accused contends a victim’s death was an accident rather than a homicide, evidence of similar acts may be offered to show that the act in dispute was not inadvertent, accidental, or involuntary. State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796, 1998 N.C. App. LEXIS 1164 (1998).

The trial court properly allowed the introduction of defendant’s prior driving-related crimes to establish that defendant acted with the malice necessary to convict him of second-degree murder; the defendant’s convictions, dating back to 1982, were not too remote in time to be relevant. State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201, 2001 N.C. App. LEXIS 138 (2001).

Trial court properly permitted evidence of defendant’s having been convicted of a prior shooting similar to the one with which defendant was accused since the prior crimes evidence showed absence of accident (as defendant claimed), motive, and common plan or scheme for shooting the victim. State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596, 2001 N.C. LEXIS 942 (2001).

Prior bad acts possessed probative value as they served to rebut the defense of accident, one of the bases for admission of evidence under G.S. 8C-1, Rule 404(b), and were probative of whether or not a shooting was accidental. State v. Taylor, 154 N.C. App. 366, 572 S.E.2d 237, 2002 N.C. App. LEXIS 1463 (2002).

This rule includes no requisite that the evidence tending to prove defendant’s identity as the perpetrator of another crime be direct evidence exclusively. State v. Moore, 335 N.C. 567, 440 S.E.2d 797, 1994 N.C. LEXIS 104, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174, 1994 U.S. LEXIS 6701 (1994).

Chain-of-events evidence leading up to murder was properly admitted to establish defendant’s intent and motive for the murders at issue, the evidence was more probative than prejudicial. State v. Rose, 339 N.C. 172, 451 S.E.2d 211, 1994 N.C. LEXIS 718 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818, 1995 U.S. LEXIS 4010 (1995).

Defendant’s wife was properly permitted to testify as to defendant’s threatening actions towards defendant’s wife before and after the murder, burglary, and robbery of defendant’s landlord because it pertained to the chain of events explaining the context, motive, and set-up of the crime. State v. Smith, 152 N.C. App. 29, 566 S.E.2d 793, 2002 N.C. App. LEXIS 867, cert. denied, 356 N.C. 311, 571 S.E.2d 208, 2002 N.C. LEXIS 1011 (2002).

“Course of Conduct” or “Complete Story” Exception. —

In a trial for robbery with a dangerous weapon, evidence of a gun store break-in was properly admitted under the “course of conduct” or “complete story” exception, as it was necessary for the jury to understand how defendant was identified as the perpetrator of the offense. State v. Howard, 215 N.C. App. 318, 715 S.E.2d 573, 2011 N.C. App. LEXIS 1899 (2011).

Trial court properly convicted defendant, upon a jury verdict, of first-degree murder and possession of a firearm by a felon because evidence of a prior break-in was properly admitted since it tended to show how defendant gained possession of the murder weapon, was necessary for the natural development of the facts and to complete the story of the murder for the jury, allowed the jury to understand how defendant came to possess the murder weapon and how long it had been outside the possession of its original lawful owner, explained why the legal gun owner was not considered a suspect and showed the thoroughness of law enforcement’s investigation. State v. Washington, 277 N.C. App. 576, 859 S.E.2d 246, 2021- NCCOA-219, 2021 N.C. App. LEXIS 227 (2021).

When Evidence of Other Crimes May Be Admitted. —

Subsection (b) of this rule allows the use of extrinsic conduct evidence so long as the evidence is relevant for some purpose other than to show that defendant has the propensity of the type of conduct for which he is being tried. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84, 1986 N.C. LEXIS 1897 (1986).

Subsection (b) of this rule permits evidence that a defendant committed similar offenses when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182, 1987 N.C. App. LEXIS 2607 (1987).

Evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988); State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Even though evidence may tend to show other crimes, wrongs, or acts by the defendant, and his propensity to commit them, it is admissible under subsection (b) of this rule so long as it is also relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

Evidence of other crimes may distract the fact finders and confuse their consideration of the issues at trial. With these considerations bearing great weight, evidence of prior bad acts, admitted to show a common plan under this rule, must be sufficiently similar and not so remote in time before they can be admitted against a defendant. State v. Jones, 322 N.C. 585, 369 S.E.2d 822, 1988 N.C. LEXIS 475 (1988).

Subsection (b) allows the admission of evidence of other crimes, wrongs or acts to show motive, opportunity, intent, plan or identity. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544, 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

Under subsection (b) of this rule there is a 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. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48, 1990 N.C. LEXIS 119 (1990), writ denied, 421 S.E.2d 360, 1992 N.C. LEXIS 569 (1992); State v. Thomas, 350 N.C. 315, 514 S.E.2d 486, 1999 N.C. LEXIS 246, cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).

Under subsection (b) of this rule, it is not the case that evidence of other crimes, wrongs or acts by a defendant falls under a general rule of exclusion subject to certain exceptions. It is clear now that, as a careful reading of subsection (b) clearly shows, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48, 1990 N.C. LEXIS 119 (1990), writ denied, 421 S.E.2d 360, 1992 N.C. LEXIS 569 (1992).

Evidence is admissible under subsection (b) of this rule if it is substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant’s propensity to commit a crime such as the crime charged. State v. Stager, 329 N.C. 278, 406 S.E.2d 876, 1991 N.C. LEXIS 522 (1991).

Evidence of other crimes committed by a defendant may be admissible under subsection (b) if it establishes the chain of circumstances or context of the charged crime; such evidence is admissible if the evidence of other crimes serves to enhance the natural development of the facts or is necessary to complete the story of the charged crime for the jury. State v. White, 340 N.C. 264, 457 S.E.2d 841, 1995 N.C. LEXIS 260, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436, 1995 U.S. LEXIS 7941 (1995).

Because the unusual injuries inflicted on the victim were particularly similar to those inflicted by defendant upon the victim’s mother and because the unusual acts which would have caused the victim’s injuries were particularly similar those acts defendant committed against the victim’s mother, the evidence of defendant’s prior misconduct toward regarding his choking her, bruising her with his hands and fingers, and bending her arms behind her back was relevant and admissible to show identity under subsection (b). State v. Burr, 341 N.C. 263, 461 S.E.2d 602, 1995 N.C. LEXIS 403 (1995), cert. denied, 517 U.S. 1123, 116 S. Ct. 1359, 134 L. Ed. 2d 526, 1996 U.S. LEXIS 2230 (1996).

Evidence of defendant’s prior traffic violations—driving 75 mph in a 45 mph zone, 76 mph in a 45 mph zone, 70 mph in a 35 mph zone, and 70 mph in a 55 mph zone—was relevant to establish defendant’s “depraved heart” on the night he struck the victims’ vehicle while rounding a sharp curve at a speed at least 40 mph over the posted limit. State v. Rich, 351 N.C. 386, 527 S.E.2d 299, 2000 N.C. LEXIS 239 (2000).

Repressed memory evidence of a sexual offense previously committed by the defendant was admissible under G.S. 8C-1, Rule 404(b) to show a common plan or scheme. State v. Williamson, 146 N.C. App. 325, 553 S.E.2d 54, 2001 N.C. App. LEXIS 945 (2001).

As a victim’s murder could potentially be seen as evidence of defendant’s intent to kill or as part of defendant’s preparation in or overall plan for his crime spree, the trial court’s instruction to the jury on the permissible uses of this evidence conveyed the correct legal standard to the jury and did not constitute error. State v. Roache, 358 N.C. 243, 595 S.E.2d 381, 2004 N.C. LEXIS 340 (2004).

Trial court did not abuse its discretion by ruling that the evidence regarding a second impersonation of a police officer and robbery incident was admissible in a defendant’s trial for a similar incident because the prior incident occurred two days after the first, involved the assailants’ entry into the victim’s residences under the auspices of legitimate law enforcement activity, and each assailant displayed a bogus search warrant and firearms in an effort to gain entry into the respective residences. State v. Jacobs, 174 N.C. App. 1, 620 S.E.2d 204, 2005 N.C. App. LEXIS 2279 (2005), vacated in part, rev'd, 361 N.C. 565, 648 S.E.2d 841, 2007 N.C. LEXIS 814 (2007).

In defendant’s prosecution for robbery with a dangerous weapon and first-degree kidnapping, evidence of defendant’s prior armed robbery conviction and the facts underlying that conviction were properly admitted under G.S. 8C-1-404(b) and G.S. 8C-1-403 because, inter alia: (1) the evidence of defendant’s involvement in another robbery tended to show defendant was one of three men involved in a similar pattern of robberies occurring over a short period of time; and (2) the robbery being prosecuted shared similarities with one of the other robberies defendant was convicted of because, in each of the robberies, a perpetrator brandished a gun at the victims at public establishments, demanded money, fired a shot, stole property of others, and fled the scene. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Because the admission of defendant’s prior felony conviction established an element of the crime charged, it was not inadmissible propensity evidence. State v. Little, 191 N.C. App. 655, 664 S.E.2d 432, 2008 N.C. App. LEXIS 1502 (2008).

Because the nearly two-and-a-half-year span between the offenses was not so long as to affect the admissibility of the evidence, but rather went to the weight of the evidence, and the Court of Appeals of North Carolina had upheld the admission of evidence under G.S. 8C-1, N.C. R. Civ. P. 404(b) (2007) where the crimes, wrongs, or acts occurred after the offenses for which a defendant was on trial, the trial court did not err in admitting the evidence of a subsequent rape under Rule 404(b) because the subsequent rape was sufficiently temporally proximate to the charged offenses. State v. Mobley, 200 N.C. App. 570, 684 S.E.2d 508, 2009 N.C. App. LEXIS 1713 (2009).

Testimony of witnesses regarding defendant’s prior acts of theft to support defendant’s addiction to prescription pills was relevant to show defendant’s motive for stealing from a victim; thus, it was permissible under G.S. 8C-1-404(b). State v. Blymyer, 205 N.C. App. 240, 695 S.E.2d 525, 2010 N.C. App. LEXIS 1138 (2010).

Evidence that an officer had seen defendant driving with a revoked license after an arrest for driving with a revoked license was properly admitted to show defendant’s knowledge, specifically that defendant knowingly drove with a revoked license, under G.S. 8C-1, Rule 404, N.C. R. Evid. 404. The evidence was not unduly prejudicial under G.S. 8C-1, Rule 403, N.C. R. Evid. 403. State v. Hargrave, 198 N.C. App. 579, 680 S.E.2d 254, 2009 N.C. App. LEXIS 1348 (2009).

Evidence of Husband’s Prior Misconduct Toward His Wife. —

Evidence that defendant had beaten his wife numerous times during their marriage was admissible to prove motive, opportunity, intent, preparation, or absence of mistake or accident with regard to the subsequent fatal attack upon her. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752, 1998 N.C. LEXIS 851 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310 (1999).

Trial court properly allowed evidence of defendant’s prior conviction for assault and injury to personal property pursuant to this section to show intent, ill will and malice; ten-year time span affected weight of evidence, not admissibility. State v. Wilds, 130 N.C. App. 195, 515 S.E.2d 466 (1999).

Trial court did not err in admitting evidence of prior and expired domestic violence orders against the defendant and the acts which led to the issuance of those orders to show the defendant’s intent to kill his estranged wife; the trial court properly limited the purpose in its instruction to showing the defendant’s intent to kill the defendant’s estranged wife. State v. Morgan, 156 N.C. App. 523, 577 S.E.2d 380, 2003 N.C. App. LEXIS 187 (2003).

North Carolina, to prove the disputed issue of defendant’s intent to kill after defendant’s forensic psychologist testified that defendant was unable to form the specific intent to kill, elicited testimony on defendant’s prior misconduct toward his wife; thus, the psychologist’s testimony regarding the statements of defendant’s prior bad acts was properly admitted under G.S. 8C-1-404(b). State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Trial court neither erred nor abused its discretion by allowing witnesses to testify to the victim’s statements concerning her and defendant’s financial situation and defendant’s alleged acts of domestic violence against the victim. Furthermore, the evidence of the victim’s state of mind was relevant and related directly to the victim’s relationship with defendant before she was killed and his motive, intent, plan, or absence of mistake or accident in the victim’s death. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688, 2007 N.C. App. LEXIS 2267 (2007).

But Hearsay Rules Apply. —

If evidence of a defendant’s misconduct toward his wife during the marriage is offered to prove motive, opportunity, intent, preparation, or absence of mistake or accident with regard to a subsequent fatal attack on her, and the evidence is used to prove the truth of the matter asserted, it must be admissible under the rules against hearsay. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752, 1998 N.C. LEXIS 851 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310 (1999).

The list of permissible purposes for admission of “other crimes” evidence is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant’s propensity to commit the crime. State v. White, 340 N.C. 264, 457 S.E.2d 841, 1995 N.C. LEXIS 260, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436, 1995 U.S. LEXIS 7941 (1995).

Evidence of other crimes must be connected by point of time and circumstance. Through this commonality, proof of one act may reasonably prove a second. However, the passage of time between the commission of the two acts slowly erodes the commonality between them. The probability of an ongoing plan or scheme then becomes tenuous. State v. Jones, 322 N.C. 585, 369 S.E.2d 822, 1988 N.C. LEXIS 475 (1988).

Sufficiently Similar Crimes. —

Evidence of robbery of a restaurant committed by defendants one week prior to the attempted robbery in case at issue was sufficiently similar to show intent. State v. Davis, 340 N.C. 1, 455 S.E.2d 627, 1995 N.C. LEXIS 152, cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83, 1995 U.S. LEXIS 5843 (1995).

Defendant’s actions against former girlfriend and those against the victim were sufficiently similar that the ten-year span between the crimes charged and the prior bad acts did not render the evidence too remote to be probative on the issue of common plan or scheme. State v. Penland, 343 N.C. 634, 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Where evidence of defendant’s prior assaults were sufficiently similar to evidence in case of first degree murder and intent to commit first degree murder, prior bad act evidence was properly admitted for the limited purposes of showing motive, purpose, intent, and opportunity to commit, and if there existed a scheme, system, or design or preparation for the offense as to the charge of first degree murder, and to establish intent to commit murder as to the charge of second degree burglary. State v. White, 343 N.C. 378, 471 S.E.2d 593, 1996 N.C. LEXIS 326 (1996), cert. denied, 519 U.S. 936, 117 S. Ct. 314, 136 L. Ed. 2d 229, 1996 U.S. LEXIS 6266 (1996), writ denied, 525 S.E.2d 465, 1998 N.C. LEXIS 960 (1998), writ denied, 354 N.C. 74, 553 S.E.2d 211, 2001 N.C. LEXIS 914 (2001).

Evidence of a prior murder was admissible, where the murder the defendant had committed 17 years earlier for which he was convicted of second-degree murder was committed in the same manner, tending to show that the defendant had both knowledge and intent when he committed the new murder, because the evidence was relevant for reasons other than to show defendant’s propensity to commit crime. State v. Hipps, 348 N.C. 377, 501 S.E.2d 625, 1998 N.C. LEXIS 330 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114, 1999 U.S. LEXIS 1594 (1999).

Other crimes evidence was admissible to show the defendant’s modus operandi in carrying out another robbery, where both incidents began with a knock at the door at about midnight, two perpetrators were involved, the victims in both cases were told to give up their “stash,” and the robberies were committed within ten days of each other. State v. Allred, 131 N.C. App. 11, 505 S.E.2d 153, 1998 N.C. App. LEXIS 1235 (1998).

In a rape prosecution, evidence that defendant had been convicted of a rape that occurred six years earlier was properly admitted; the modus operandi in the two rapes was similar and the first rape was not too remote in time as defendant had been paroled after his conviction for the first rape only a few months before the second rape. State v. Barkley, 144 N.C. App. 514, 551 S.E.2d 131, 2001 N.C. App. LEXIS 531 (2001).

Defendant’s prior offenses were admissible against him because the ages of the victims, the manner in which he pursued them, and his sexual conduct were similar enough to the current offense to be probative of his intent and common plan or scheme, and as they were continuously performed over 10 years, they were not too remote in time. State v. Curry, 153 N.C. App. 260, 569 S.E.2d 691, 2002 N.C. App. LEXIS 1131 (2002).

Joinder of a common law robbery charge with a first degree murder charge was upheld on appeal, despite the two offenses being separated in time by several days and involving different victims, because the offenses were based on a series of acts or transactions that commenced with the robbery of a cell phone from the murder victim’s girlfriend and then the subsequent murder of the victim after an argument related to the robbery; the robbery events constituted a critical point in the ongoing dispute between the murder victim and defendant, which resulted in the argument and eventual shooting death of the victim, and therefore, a transactional connection existed between the two offenses. State v. Simmons, 167 N.C. App. 512, 606 S.E.2d 133, 2004 N.C. App. LEXIS 2333 (2004).

Evidence of a prior alleged assault on another victim was admissible pursuant to G.S. 8C-1, N.C. R. Evid. 404(b) because the similarities between the events were sufficient to indicate a common plan or design on the part of defendant. State v. Petro, 167 N.C. App. 749, 606 S.E.2d 425, 2005 N.C. App. LEXIS 16 (2005).

Evidence that defendant had an outstanding warrant was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), as a possible motive for his decision to flee from officers after drugs were discovered in a car where he was riding as a passenger; also, evidence of the circumstances surrounding defendant’s arrest in another state, where defendant was passenger in a car and attempted to flee in that car after drugs were discovered, was properly admitted under that same rule as the circumstances were sufficiently similar to show defendant’s propensity or modus operandi to flee after being caught with drugs. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648, 2005 N.C. App. LEXIS 1011 (2005).

In a rape and kidnapping case, evidence of other sexual attacks or attempted sexual attacks were properly admitted under G.S. 8C-1, Rule 404(b) because they showed modus operandi; the crimes were similar in that defendant lured women that he had known for a long period of time into secluded places with the promise of drugs and alcohol before choking and raping them. State v. Moore, 173 N.C. App. 494, 620 S.E.2d 1, 2005 N.C. App. LEXIS 2103 (2005), cert. dismissed, 634 S.E.2d 894, 2006 N.C. LEXIS 612 (2006).

The admissibility of evidence of a prior crime must be closely scrutinized since this type of evidence may put before the jury crimes or bad acts allegedly committed by the defendant for which he has neither been indicted nor convicted. State v. Jones, 322 N.C. 585, 369 S.E.2d 822, 1988 N.C. LEXIS 475 (1988).

The use of other crimes evidence under G.S. 8C-1, Rule 404(b) is guided by two constraints: similarity and temporal proximity. State v. Bidgood, 144 N.C. App. 267, 550 S.E.2d 198, 2001 N.C. App. LEXIS 430, cert. denied, 354 N.C. 222, 554 S.E.2d 647, 2001 N.C. LEXIS 1024 (2001).

Certified Copies of Prior Convictions Inadmissible. —

In a first-degree murder trial, certified copies of the victim’s prior convictions were not admissible under G.S. 8C-1, N.C. R. Evid. 404(b). State v. Jacobs, 195 N.C. App. 599, 673 S.E.2d 724, 2009 N.C. App. LEXIS 264 (2009), aff'd, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010).

Insufficiently Similar Crimes. —

The admission of defendant’s prior conviction was in error because any similarity between the prior robbery for which defendant was convicted and the subsequent robbery was so slight as to be virtually non-existent. State v. Willis, 136 N.C. App. 820, 526 S.E.2d 191, 2000 N.C. App. LEXIS 148 (2000).

Court did not discern sufficient similarities in the circumstances surrounding a victim’s death from knife wounds inflicted by defendant during a fight outside of a bar and those surrounding defendant’s violent acts allegedly directed towards his former girlfriend to render evidence regarding the latter admissible for any purpose sanctioned by Rule 404(b). State v. Dennison, 163 N.C. App. 375, 594 S.E.2d 82, 2004 N.C. App. LEXIS 398 (2004), rev'd, 359 N.C. 312, 608 S.E.2d 756, 2005 N.C. LEXIS 202 (2005).

Defendant’s prior conviction for selling cocaine was inadmissible under G.S. 8C-1-404(b) in defendant’s prosecution for possession with intent to sell or deliver cocaine; the weight of cocaine rocks and the unpackaged state of the rocks did not make the prior conviction and the current charge similar, the events were eight years apart, and the admission was prejudicial under G.S. 15A-1443(a) when the inference afforded by the amount of drugs in defendant’s possession did not outweigh the prejudice caused by the erroneous admission of his prior conviction. State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105, 2007 N.C. LEXIS 596 (2007).

When a specific mental intent or state of mind is an essential element of the charged offense, evidence of previous acts of the same kind is admissible to prove the defendant’s intent or state of mind. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Evidence of other misconduct is admissible under the identity exception upon a showing of unusual facts present in both acts, or particularly similar acts which tend to show that the same person committed both. State v. Williams, 82 N.C. App. 281, 346 S.E.2d 315, 1986 N.C. App. LEXIS 2447 (1986).

Subsection (b) of this rule must be applied to allow a defendant to introduce evidence of very similar crimes of another person, when such evidence tends to show that the other person committed the crime for which the defendant is on trial. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277, 1987 N.C. LEXIS 1810 (1987).

Determination by Trial Court Before Extrinsic Conduct Evidence Is Admitted. —

Before extrinsic conduct evidence is admissible pursuant to subsection (b) of this rule, the trial court is required, first, to determine whether conduct is being offered pursuant to subsection (b); and second, to make a determination of the evidence’s relevancy. If the trial judge makes the initial determination that the evidence is of the type and is offered for a proper purpose under subsection (b), the record should so reflect. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550, 1988 N.C. App. LEXIS 177 (1988).

Probative Value Must Be Weighed Against Potential Prejudice. —

If evidence of other acts is offered to prove something other than character, the trial court must determine whether the risk of undue prejudice outweighs the probative value of the evidence, in view of the availability of the other means of proof. State v. Bartow, 77 N.C. App. 103, 334 S.E.2d 480, 1985 N.C. App. LEXIS 4020 (1985).

Although admissible under subsection (b) of this rule, the probative value of evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under G.S. 8C-1, Rule 403. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

While this rule does not offer a mechanical solution, once it is established that evidence is admissible under subsection (b), a determination must be made as to whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under G.S. 8C-1, Rule 403. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

The test for determining whether evidence of crimes, wrongs or acts other than those specifically at issue in the trial is admissible is whether the incidents are sufficiently similar and not too remote in time so as to be more probative than prejudicial under the balancing test of G.S. 8C-1, Rule 403. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

The ultimate test for determining whether evidence of other offenses is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of G.S. 8C-1, Rule 403. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118, 1988 N.C. LEXIS 23 (1988).

The admission into evidence of a crack pipe was proper to show motive in a robbery, especially since the defendant failed to argue that its probative value outweighed its prejudice to the defendant. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734, 1999 N.C. App. LEXIS 1378 (1999), cert. dismissed, 367 N.C. 515, 762 S.E.2d 453, 2014 N.C. LEXIS 693 (2014), writ denied, 368 N.C. 598, 780 S.E.2d 556, 2015 N.C. LEXIS 1205 (2015).

Defendant was not prejudiced by the trial court admitting into evidence testimony as to defendant’s prior acts of being a passenger in a car where an officer smelled marijuana and being found asleep in a car with a bag of marijuana and a scale in plain view to support the case against defendant and his co-defendants for conspiring to possess, manufacture, and distribute marijuana, as the evidence showed that defendant had a propensity to commit the crime. State v. Harrington, 171 N.C. App. 17, 614 S.E.2d 337, 2005 N.C. App. LEXIS 1189 (2005).

The State does not bear the burden of proving the validity of a plea of guilty in a prior criminal matter before it may be used to impeach the defendant or to aggravate his sentence. State v. Smith, 96 N.C. App. 235, 385 S.E.2d 349, 1989 N.C. App. LEXIS 966 (1989).

Conviction of other crimes is not a prerequisite to their admissibility under this rule. Conduct need not be criminal or unlawful if it sheds light on defendant’s character and is relevant to something other than criminal propensity. State v. Suggs, 86 N.C. App. 588, 359 S.E.2d 24, 1987 N.C. App. LEXIS 2750, cert. denied, 321 N.C. 299, 362 S.E.2d 786, 1987 N.C. LEXIS 2591 (1987).

Even if evidence is admissible under subsection (b) of this rule, the trial court must still determine whether its probative value outweighs the danger of undue prejudice to the defendant. State v. Frazier, 319 N.C. 388, 354 S.E.2d 475, 1987 N.C. LEXIS 1926 (1987).

Prior Conviction And Prior Pending Impaired Driving Charge. —

The trial court did not err in admitting evidence of the two prior incidents of impaired driving where the 1991 conviction was identical with the one at bar and the 1997 incident was indicative of the defendant’s state of mind although the defendant was appealing that decision and awaited a trial de novo, especially where the court’s instruction clearly communicated that the defendant had not been convicted and that the evidence was admitted for the limited purpose of showing state of mind or intent. State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859, 2000 N.C. App. LEXIS 600 (2000).

The doctrine of collateral estoppel, as encompassed by the U.S. Const., Amend. V guarantee against double jeopardy, does not prohibit the introduction of evidence, in a subsequent trial for a different crime, of a crime of which a defendant has previously been acquitted. State v. Agee, 326 N.C. 542, 391 S.E.2d 171, 1990 N.C. LEXIS 244 (1990).

Prior Acts Must Be Sufficiently Similar and Not So Remote in Time as to Be Prejudicial. —

To be admissible, evidence of prior sexual abuse must relate to incidents sufficiently similar and not so remote in time that they are more probative than prejudicial under balancing test of G.S. 8C-1, Rule 403. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198, 1990 N.C. App. LEXIS 837 (1990).

Because there were factual dissimilarities between two robberies which occurred one month before a third robbery which defendant was charged with committing, trial court should not have allowed the victim of the first two robberies to testify about them, and the state supreme court ordered a new trial after defendant was convicted of first-degree murder and sentenced to death. State v. al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120, 2002 N.C. LEXIS 678 (2002).

Trial court, in a suit between a sublessee and the landlords, did not abuse its discretion in excluding evidence of the revocation of the real estate license of one of the landlords for acts similar to those alleged by the sublessee as the license was revoked 21 years earlier. Di Frega v. Pugliese, 164 N.C. App. 499, 596 S.E.2d 456, 2004 N.C. App. LEXIS 981 (2004).

Remoteness of Other Offense. —

While the remoteness of another offense is relevant to its admissibility to show modus operandi or a common scheme or plan, remoteness usually goes to the weight of the evidence, not its admissibility. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Generally, remoteness in time goes to the weight of the evidence and not to its admissibility. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Remoteness in time is most important where evidence of another crime is used to show that both crimes arose out of a common scheme or plan; remoteness in time is less important when the other crime is admitted because its modus operandi is so strikingly similar to the modus operandi of the crime being tried as to permit a reasonable inference that the same person committed both crimes. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

A process that allows for the passage of time to be weighed in a court’s initial decision to admit evidence of other crimes is the better reasoned approach and one that ensures that an accused is tried only for the acts for which he has been indicted. State v. Jones, 322 N.C. 585, 369 S.E.2d 822, 1988 N.C. LEXIS 475 (1988).

Attenuated by time, the pertinence of evidence of prior offenses attaches to the defendant’s character rather than to the offense for which he is on trial; in other words, remoteness in time tends to diminish the probative value of the evidence and enhance its tendency to prejudice. State v. Artis, 325 N.C. 278, 384 S.E.2d 470, 1989 N.C. LEXIS 482 (1989), vacated, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604, 1990 U.S. LEXIS 1467 (1990) (in light of) State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

Remoteness in time between evidence of other crimes, wrongs or acts and the charged crime is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident, since remoteness in time generally affects only the weight to be given such evidence, not its admissibility. State v. White, 349 N.C. 535, 508 S.E.2d 253, 1998 N.C. LEXIS 850 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779, 1999 U.S. LEXIS 4288 (1999).

Temporal remoteness of defendant’s prior sexual acts in the presence of children, properly admitted under G.S. 8C-1, Rule 404(b), went to their weight, rather than admissibility. State v. Beckham, 145 N.C. App. 119, 550 S.E.2d 231, 2001 N.C. App. LEXIS 559 (2001).

Defendant’s 18- and 19-year-old convictions for driving while impaired were not highly probative of defendant’s mental state at the time of defendant’s actions in defendant’s criminal case; therefore, the admission of evidence concerning these convictions was improper. State v. Davis, 208 N.C. App. 26, 702 S.E.2d 507, 2010 N.C. App. LEXIS 2076 (2010).

Testimony Not Too Remote to Be Admissible. —

Where defendant was found guilty of taking indecent liberties with a minor, defendant assigned error to the admission of testimony of two witnesses that they were touched by defendant in ways similar to victim in case, and defendant contended evidence of prior acts was inadmissible under G.S. 8C-1, Rule 404(b), because prior acts were both remote in time and dissimilar to the act charged in the indictment, testimony of witnesses was admissible under G.S. 8C-1, Rule 404(b) since lapse of nearly five years between events involving witnesses and those involving victims did not diminish similarities between acts. State v. Roberson, 93 N.C. App. 83, 376 S.E.2d 486, 1989 N.C. App. LEXIS 75 (1989).

Three instances of similar sexual conduct against same victim within a 28-month span did not make evidence impermissibly remote. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198, 1990 N.C. App. LEXIS 837 (1990).

Evidence that a murder defendant gave the victim defaced photographs of the victim’s wife more than four months before the shooting was not too remote to be relevant. The passage of four months did not render this evidence irrelevant. State v. Terry, 329 N.C. 191, 404 S.E.2d 658, 1991 N.C. LEXIS 401 (1991).

Remoteness did not bar admission of the defendant’s conviction of second-degree murder that occurred 17 years earlier, where the evidence showed that the prior murder was committed in the same manner as the present murder, because the lapse of time went to the evidence’s weight rather than its admissibility. State v. Hipps, 348 N.C. 377, 501 S.E.2d 625, 1998 N.C. LEXIS 330 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1119, 143 L. Ed. 2d 114, 1999 U.S. LEXIS 1594 (1999).

Defendant’s prior sexual assaults were not too remote in time to prevent their admission to show a similar modus operandi to a new sexual offense, where there was a six-year period between the former offense and present offense, excluding time spent in prison. State v. Blackwell, 133 N.C. App. 31, 514 S.E.2d 116, 1999 N.C. App. LEXIS 341 (1999).

Evidence of defendant’s prior alleged sexual acts committed on victim when she was five years old, some seven years before the first charged offense, and of sexual acts committed on victim when she was ten years old, some two years before the first charged offense, was admissible pursuant to this rule to show a common plan or ongoing scheme by defendant of sexually abusing her. State v. Thompson, 139 N.C. App. 299, 533 S.E.2d 834, 2000 N.C. App. LEXIS 895 (2000).

Seventeen Year Prior Assault on First Wife, Not Too Remote. —

The time between defendant’s assault of his first wife and of his second wife was not so remote as to make his first wife’s testimony inadmissible where the defendant spent at least half of the seventeen years in prison serving time for the assault; where the defendant attacked both women during a period of marital discord; and where the defendant never denied stabbing his first wife or shooting his second wife to prevent either from leaving him. State v. Brooks, 138 N.C. App. 185, 530 S.E.2d 849, 2000 N.C. App. LEXIS 601 (2000).

Admission of 27-Year-Old Alleged Sexual Offense Was Error. —

Twenty-seven year lapse between an earlier alleged instance of sexual abuse and the current alleged instance merited against finding that defendant was engaged in an ongoing plan or scheme of sexual abuse, and thus, admission of evidence of the 27-year-old alleged incident was error; since the State presented no evidence that defendant’s possession of pornographic magazines and women’s underwear played any part in the alleged offenses, the evidence was not relevant to prove the charges against him, was merely impermissible character evidence, and admission of the evidence was error but not plain error. State v. Delsanto, 172 N.C. App. 42, 615 S.E.2d 870, 2005 N.C. App. LEXIS 1587 (2005).

Prior Bad Acts Showing Intent, Plan or Design. —

Evidence that an arson defendant had previously solicited or attempted to solicit youths to commit other crimes was admissible under G.S. 8C-1, Rule 404(b) for purpose of showing defendant’s intent, plan, design, or mode of operation and that its probative value outweighed its prejudicial effect. State v. Richardson, 100 N.C. App. 240, 395 S.E.2d 143, 1990 N.C. App. LEXIS 921 (1990).

Testimony by witnesses that they had contracted with defendant to move their houses, which defendant never did yet retained their money, was admissible to show the intent or plan of defendant. State v. Barfield, 127 N.C. App. 399, 489 S.E.2d 905, 1997 N.C. App. LEXIS 891 (1997).

The trial court properly allowed the plaintiff in a sexual harassment case to present evidence concerning alleged prior misconduct, where the plaintiff alleged that the defendant cut her wages and forced her to resign when she refused his sexual advances, and she was allowed to testify as to a statement allegedly made by defendant concerning a previous sexual relationship he had with a prior employee, in that this statement could suggest an intent to prey on female subordinates. Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728, 1998 N.C. App. LEXIS 648 (1998).

Testimony of prior crimes or wrongs was properly admitted under this rule in a prosecution for conspiracy to traffic in cocaine, where testimony by a witness who had been a minor at the time in question that he had sold cocaine for the defendant and had been paid by the defendant in drugs and currency was relevant to show the defendant’s intent to plan and commit a conspiracy. State v. Love, 131 N.C. App. 350, 507 S.E.2d 577, 1998 N.C. App. LEXIS 1350 (1998), aff'd, 350 N.C. 586, 516 S.E.2d 382, 1999 N.C. LEXIS 422 (1999).

Past incidents of defendant’s failure to provide proper care for the victim, her daughter who had cerebral palsy and died from malnutrition, were relevant and admissible to show intent because the trial court properly balanced its probative value against any unduly prejudicial effect by giving a limiting instruction and granted defendant’s other motions in limine to suppress evidence of the pathologist’s conclusion that the victim died from the withholding of food, of defendant’s lifestyle, of the injury to the victim’s brother’s eye, and of two investigations by the DSS into unsubstantiated allegations of neglect of other children. State v. Fritsch, 351 N.C. 373, 526 S.E.2d 451, 2000 N.C. LEXIS 241, cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed. 2d 150, 2000 U.S. LEXIS 6104 (2000).

In defendant’s trial in state court for offenses committed during a two-week crime spree, the trial court did not err in permitting testimony of a bank clerk who witnessed defendant’s robbery of a bank during the crime spree, even though defendant was charged for this robbery in federal court; the evidence of the bank robbery was not introduced to show defendant’s propensity to commit the state court offenses, but to show that his actions were part of a scheme or plan to commit such offenses during the two-week period. State v. Floyd, 148 N.C. App. 290, 558 S.E.2d 237, 2002 N.C. App. LEXIS 13 (2002).

In defendant’s trial on charges of maintaining a vehicle to keep and sell a controlled substance, trafficking by possession of oxycodone, trafficking by sale of oxycodone, and trafficking by transportation of oxycodone, the trial court did not abuse its discretion by allowing an informant and other witnesses to testify that they met with defendant at various locations over a five-week period to buy oxycodone because, although the evidence described drug transactions that were not charged, it showed knowledge, plan, scheme, design, opportunity, and absence of mistake or entrapment, and was not so remote that its prejudicial impact outweighed its probative value. State v. McCracken, 157 N.C. App. 524, 579 S.E.2d 492, 2003 N.C. App. LEXIS 732 (2003).

Evidence of prior robberies was admissible to show a common scheme or purpose because each of the prior robberies was sufficiently similar to the subject robbery and occurred within weeks of the subject robbery, and the State proffered testimony that the robberies were all part of a common scheme or plan towards a drug transaction with a Connecticut gang. State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371, 2005 N.C. App. LEXIS 342 (2005).

Other crimes evidence was properly admitted under G.S. 8C-1-404(b), as defendant’s statement that if someone did not call him back he was going to “burn you all up,” was admissible to prove a number of the listed purposes, namely defendant’s motive, intent, plan, common scheme, as well as defendant’s identity as the arsonist; the trial court guarded against the possibility of prejudice under G.S. 8C-1-403 by instructing the jury to consider the evidence only for the limited purposes of establishing identity, intent, motive, absence of mistake, and common plan. State v. Curmon, 171 N.C. App. 697, 615 S.E.2d 417, 2005 N.C. App. LEXIS 1362 (2005).

Confidential police informant’s testimony as to prior, uncharged drug transactions with defendant was admitted for a proper purpose under G.S. 8C-1, N.C. R. Evid. 404(b), and the trial court did not act arbitrarily in allowing the testimony under G.S. 8C-1, N.C. R. Evid. 403 because the testimony was offered to show intent, knowledge, and common plan or scheme as well as to explain the relationship between the informant and defendant; additionally, an appropriate limiting instruction to that effect was given to the jury both at the time the informant testified and in the jury instructions. State v. Houston, 169 N.C. App. 367, 610 S.E.2d 777, 2005 N.C. App. LEXIS 606 (2005).

Evidence of defendant’s prior sexual relations with his older half-daughter from about nine years before he began to have sexual relations with the victim, his younger daughter, was properly admitted under G.S. 8C-1-404(b) to show a common scheme or plan. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

DNA evidence showing that defendant was the father of the victim’s child, and thus must have had sexual intercourse with her, was admissible to show a common scheme or plan under G.S. 8C-1-404(b). State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

This rule did not bar the admission of evidence of defendant’s breaking or entering a house on the same night that he entered the church because it tended to show that defendant’s intent in entering the church was to commit a larceny therein and tended to contradict defendant’s later testimony that he entered the church for sanctuary. State v. Campbell, 243 N.C. App. 563, 777 S.E.2d 525, 2015 N.C. App. LEXIS 870 (2015), rev'd, 369 N.C. 599, 799 S.E.2d 600, 2017 N.C. LEXIS 400 (2017).

Prior Convictions Showing Intent or Knowledge. —

Trial court did not abuse its discretion in admitting evidence of previously dismissed heroin charges against defendant for purpose of showing guilty knowledge where the trial court gave a limiting instruction to the jury on consideration of the evidence. State v. Woolridge, 147 N.C. App. 685, 557 S.E.2d 158, 2001 N.C. App. LEXIS 1249 (2001), rev'd, 357 N.C. 544, 592 S.E.2d 191, 2003 N.C. LEXIS 1259 (2003).

In prosecution for possession of cocaine, possession of cocaine with intent to sell and deliver, and sale and delivery of cocaine, evidence of defendant’s prior convictions were properly admitted under G.S. 8C-1, Rule 404(b) to show intent and knowledge, because (1) all occurred at the same address, (2) defendant was present at all offenses, (3) all involved cocaine, and (4) the prior convictions occurred within a year of the current charge. State v. Wilkerson, 148 N.C. App. 310, 559 S.E.2d 5, 2002 N.C. App. LEXIS 24, rev'd, 356 N.C. 418, 571 S.E.2d 583, 2002 N.C. LEXIS 1105 (2002).

Evidence pertaining to defendant’s prior convictions for possession with intent to manufacture, sell, and deliver cocaine was properly admitted under G.S. 8C-1, Rule 404(b) to show intent and knowledge, and the trial court properly gave a limiting instruction to the jury; furthermore, while testimony from the deputy clerk was inadmissible under G.S. 8C-1, Rule 404(b), the error was harmless when defendant testified and was properly cross-examined about the convictions. State v. Renfro, 174 N.C. App. 402, 621 S.E.2d 221, 2005 N.C. App. LEXIS 2483 (2005), aff'd, 360 N.C. 395, 627 S.E.2d 463, 2006 N.C. LEXIS 33 (2006).

Prior Bad Act Showing Intent, Malice, Premeditation, and Deliberation. —

Where defendant was convicted of murdering his wife, testimony regarding defendant’s frequent arguments with, violent acts toward, separations from, reconciliations with, and threats to his wife were admissible to prove the issues in dispute, lack of intent, malice, premeditation, and deliberation. State v. Scott, 343 N.C. 313, 471 S.E.2d 605, 1996 N.C. LEXIS 338 (1996).

The defendant’s prior alcohol-related conviction pursuant to G.S. 20-138.3 was relevant, where the impaired defendant caused a death and was charged with second-degree murder, and admissible for the purpose of establishing malice even though the prior offense imposed strict liability based upon defendant’s age without regard to the quantity consumed. State v. Gray, 137 N.C. App. 345, 528 S.E.2d 46, 2000 N.C. App. LEXIS 324 (2000).

Evidence of defendant’s prior assault on the victim tended to establish not only malice, intent, premeditation and deliberation, all elements of first-degree murder, but more importantly, it tended to establish ill-will against the victim and lack of accident; where defendant contended that he shot her by mistake, this evidence was relevant to an issue other than defendant’s character. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388, 2000 N.C. App. LEXIS 1405 (2000).

Evidence of felonious impaired driving could be used to demonstrate defendant had the requisite state of malice required for second-degree murder. State v. Blackwell, 142 N.C. App. 388, 542 S.E.2d 675, 2001 N.C. App. LEXIS 93 (2001).

Defendant’s prior convictions for driving while impaired were admissible into evidence as the State offered the convictions into evidence to establish the malice element in defendant’s trial for second-degree murder. State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448, 2003 N.C. App. LEXIS 748 (2003).

Evidence that first-degree murder defendant had robbed drug dealers and hit a drug dealer during a robbery was relevant to refute his contention that he shot a police officer without premeditation and deliberation, while evidence about his illegal acquisition of weapons and his curfew violation was relevant as part of the chain of circumstances leading up to the shooting. State v. Grant, 178 N.C. App. 565, 632 S.E.2d 258, 2006 N.C. App. LEXIS 1637 (2006).

Trial court did not abuse its discretion by permitting testimony of evidence of defendant’s financial dealings with other people, depletion of the victim’s bank accounts, violent acts toward the victim, and his adulterous relationships because the evidence tended to show defendant’s motive, intent, preparation, plan, absence of mistake, and knowledge under N.C. R. Evid. 404(b). Moreover, the relevancy of the evidence outweighed its danger of unfair prejudice under N.C. R. Evid. 403. State v. Petrick, 186 N.C. App. 597, 652 S.E.2d 688, 2007 N.C. App. LEXIS 2267 (2007).

Admissible for Proof of Malice. —

During defendant’s trial for second degree murder, the trial court did not err by admitting his prior driving record because it was admissible to show malice, as the vast majority of the charges in the driving record involved the same types of conduct defendant was alleged to have engaged in this case, speeding, illegal passing, and driving while his license was revoked. State v. Schmieder, 265 N.C. App. 95, 827 S.E.2d 322, 2019 N.C. App. LEXIS 344 (2019).

Evidence of Pending DWI Admissible to Show Malice. —

The circumstances attendant to the pending DWI charge—defendant was speeding on the wrong side of the road and ran another motorist off the road while impaired—demonstrated that defendant was aware that his conduct leading up to the collision at issue was reckless and inherently dangerous to human life; thus, such evidence tended to show malice on the part of defendant and was properly admitted under this rule. State v. Jones, 353 N.C. 159, 538 S.E.2d 917, 2000 N.C. LEXIS 894 (2000).

Evidence of Prior DWI Admissible to Show Malice. —

Evidence as to defendant’s prior convictions for driving while impaired and driving while license revoked was properly admitted, under G.S. 8C-1, N.C. R. Evid. 404(b), as the evidence was relevant to show malice to support defendant’s charge for second degree murder following an auto accident in which defendant was driving while impaired. State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394, 2005 N.C. App. LEXIS 992 (2005).

Evidence that defendant had a breath alcohol concentration of 0.08 and performed poorly on field sobriety tests after he caused an automobile accident that resulted in the death of a child was sufficient to sustain defendant’s conviction for second-degree murder, and the trial court did not err by allowing the State to introduce evidence that defendant was convicted of driving while impaired after he was involved in another accident in 1996, to prove malice. State v. Locklear, 159 N.C. App. 588, 583 S.E.2d 726, 2003 N.C. App. LEXIS 1535 (2003), aff'd, 359 N.C. 63, 602 S.E.2d 359, 2004 N.C. LEXIS 1129 (2004).

Intent is a mental attitude seldom provable by direct evidence. Past incidents of mistreatment are admissible to show intent in a child abuse case. State v. West, 103 N.C. App. 1, 404 S.E.2d 191, 1991 N.C. App. LEXIS 578 (1991).

Passage of Time May Prove Existence of Plan. —

Where defendant was convicted of first-degree rape of his daughter, prior acts were not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually; when similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan. State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842, 1989 N.C. LEXIS 305 (1989).

Prior Acts Showing Motive or Conduct. —

Evidence that a murder defendant had engaged in homosexual activities with a witness and with two murder victims was relevant to show motive and pattern of conduct. State v. Ross, 100 N.C. App. 207, 395 S.E.2d 148, 1990 N.C. App. LEXIS 926 (1990), aff'd, 329 N.C. 108, 405 S.E.2d 158, 1991 N.C. LEXIS 414 (1991).

Trial court’s admission of the testimony of kidnapping victim regarding a prior incident during which defendant struck the murder victim in the back of the head with a pole and threatened to cut her throat with a butcher knife was upheld under section (b) of this Rule and under G.S. 8C-1, Rule 403. State v. Kyle, 333 N.C. 687, 430 S.E.2d 412, 1993 N.C. LEXIS 243 (1993).

Evidence about drug sales by defendant and his friends on the night of the murder was relevant to show the motive for the shooting and to put the crime in context. Thus, the testimony was admissible under section (b) and the trial court did not err in admitting it. State v. Cook, 334 N.C. 564, 433 S.E.2d 730, 1993 N.C. LEXIS 396 (1993).

Testimony of defendant’s grandfather concerning defendant’s loss of luggage, offered by his brother co-defendant, was relevant as well as admissible, pursuant to this section, to prove his motive for not wanting to return to Richmond by bus (he would ostensibly have to stop over in the town where the police seized his luggage for containing marijuana) and, consequently, his ultimate motive for robbery and car theft. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168, 2000 N.C. LEXIS 618 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2353 (2001), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2354 (2001), writ denied, 358 N.C. 157, 593 S.E.2d 84, 2004 N.C. LEXIS 158 (2004), cert. dismissed, 370 N.C. 375, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. dismissed, 375 N.C. 500, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (2020).

Admission of evidence of defendant’s prior arrest on the evening before the alleged murder, where defendant was found with drugs and cash, was not erroneous because the evidence was admissible under the theory that it went to the motive for the later drug-related murder. State v. Davis, 168 N.C. App. 321, 608 S.E.2d 74, 2005 N.C. App. LEXIS 256 (2005), cert. dismissed, 365 N.C. 87, 706 S.E.2d 471, 2011 N.C. LEXIS 158 (2011).

Evidence that defendant had an outstanding warrant was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), as a possible motive for his decision to flee from officers after drugs were discovered in a car where he was riding as a passenger; also, evidence of the circumstances surrounding defendant’s arrest in another state, where defendant was passenger in a car and attempted to flee in that car after drugs were discovered, was properly admitted under that same rule as the circumstances were sufficiently similar to show defendant’s propensity or modus operandi to flee after being caught with drugs. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648, 2005 N.C. App. LEXIS 1011 (2005).

Testimony that the victim of an arson refused to agree to allow defendant to store stolen goods in her home was relevant under G.S. 8C-1, N.C. R. Evid. 401 to show defendant’s motive to burn the premises. G.S. 8C-1, N.C. R. Evid. 404(b) did not require exclusion of the victim’s testimony as evidence that was probative only of defendant’s propensity to commit crimes. State v. Chappelle, 193 N.C. App. 313, 667 S.E.2d 327, 2008 N.C. App. LEXIS 1809 (2008).

Evidence of defendant’s offenses subsequent to burglary, namely, shoplifting, breaking, entering and larceny, and car theft, were admissible to show intent and motive (defendant wanted money for drugs) and was not unfairly prejudicial where the judge gave a limiting instruction. State v. Hutchinson, 139 N.C. App. 132, 532 S.E.2d 569, 2000 N.C. App. LEXIS 800 (2000).

Identity Must Be at Issue. —

Before identity evidence is admissible under Rule 404(b), there must be a determination of whether the identity of the perpetrator is at issue. State v. White, 101 N.C. App. 593, 401 S.E.2d 106, 1991 N.C. App. LEXIS 143 (1991).

Where the prior crime was not being offered to show common plan or scheme, but to show identity, the passage of time affected the weight of the evidence rather than its admissibility. State v. Carter, 338 N.C. 569, 451 S.E.2d 157, 1994 N.C. LEXIS 715 (1994), cert. denied, Carter v. North Carolina, 515 U.S. 1107, 115 S. Ct. 2256, 132 L. Ed. 2d 263, 1995 U.S. LEXIS 3724 (1995).

Application of the identity exception of subsection (b) of this rule requires that some unusual facts or particularly similar acts be present in both crimes indicating that the same person committed both crimes. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Evidence of Other Murder — Showing Opportunity and Identity. —

Trial court correctly allowed evidence of one murder to show opportunity and identity in support of another murder. State v. Moses, 350 N.C. 741, 517 S.E.2d 853, 1999 N.C. LEXIS 882 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826, 2000 U.S. LEXIS 693 (2000), writ denied, 356 N.C. 442, 573 S.E.2d 160, 2002 N.C. LEXIS 1214 (2002), writ denied, 357 N.C. 510, 588 S.E.2d 380, 2003 N.C. LEXIS 1188 (2003), writ denied, 360 N.C. 652, 639 S.E.2d 57, 2006 N.C. LEXIS 1199 (2006), cert. denied, 365 N.C. 93, 706 S.E.2d 246, 2011 N.C. LEXIS 121 (2011).

Same — Showing Common Scheme. —

Where State used evidence of another victim’s death to show that defendant had a common scheme to hurt his former girlfriend for refusing to continue their relationship, and the two killings shared significant similarities, and the court conducted a lengthy pretrial hearing which supported its decision to admit the evidence, appellate court found no abuse of discretion under this rule. State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231, 1999 N.C. App. LEXIS 856 (1999), cert. dismissed, 352 N.C. 669, 535 S.E.2d 33, 2000 N.C. LEXIS 747 (2000).

Other acts evidence was admissible as the testimony by defendant’s natural daughter of his sexual assaults against her showed a “common plan or scheme” by defendant of abusing young female family members. State v. Starner, 152 N.C. App. 150, 566 S.E.2d 814, 2002 N.C. App. LEXIS 899, cert. denied, 356 N.C. 311, 571 S.E.2d 209, 2002 N.C. LEXIS 1004 (2002).

Where evidence regarding a prior murder had been admitted in petitioner’s murder trial to show the existence of a similar modus operandi, intent, and design, there was no reasonable probability that if documents generated in the early phases of the prior murder investigation (which led to the initial identification of other potential suspects) had been produced, there would have been a different G.S. 8C-1, N.C. R. Evid. 404 ruling; given the similarities in the murders, the evidence that the same person murdered both victims, and that petitioner was the murderer, was overwhelming. Moseley v. Branker, 545 F.3d 265, 2008 U.S. App. LEXIS 22689 (4th Cir. 2008).

While the trial court properly admitted evidence of a subsequent murder to show a common plan or design, the cumulative effect of the trial court’s errors deprived defendant of a fair trial where there was a distinct risk that the jury might have been led to convict based on evidence of an offense not then before it, allowed the second victim’s sister to testify about that victim’s good character, which evidence was irrelevant to the crime charged, and allowed the prosecution to argue that defense counsel had in effect suborned perjury when, whether or not defendant committed perjury, there was no evidence that he had done so at his attorneys’ behest. State v. Hembree, 368 N.C. 2, 770 S.E.2d 77, 2015 N.C. LEXIS 265 (2015).

Modus Operandi Need Not Be Unique or Bizarre. —

Under subsection (b) of this rule, for similar crimes to be admitted as evidence of identity it is not necessary that the modus operandi of the crime which the state seeks to have admitted rise to the level of the unique or bizarre. Rather, the similarities must support the reasonable inference that the same person committed both the earlier and the later crimes. State v. Green, 321 N.C. 594, 365 S.E.2d 587, 1988 N.C. LEXIS 112, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

Prior Assault. —

The evidence of the defendant’s prior assault on murder victim tended to establish malice, intent, premeditation and deliberation and the defendant’s ill will toward the victim; thus, the evidence was relevant to an issue other than defendant’s character. State v. Alston, 341 N.C. 198, 461 S.E.2d 687, 1995 N.C. LEXIS 406 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100, 1996 U.S. LEXIS 1442 (1996).

The State was allowed to ask the defendant questions about the names of other women he had been convicted of shooting, his relationship with those other women, and type of weapons he had used, to show that he had a history of shooting women with whom he had previously had relationships. State v. Dammons, 128 N.C. App. 16, 493 S.E.2d 480, 1997 N.C. App. LEXIS 1206 (1997).

In defendant’s conviction for rape and breaking and entering, the trial court properly admitted evidence of past crimes under G.S. 8C-1, N.C. R. Evid. 404(b), as the evidence of defendant’s physical abuse towards the victim was not too remote in time to be relevant, and the evidence of defendant’s prior abuse of the victim was relevant to prove defendant’s pattern of physical intimidation of the victim. State v. Strickland, 153 N.C. App. 581, 570 S.E.2d 898, 2002 N.C. App. LEXIS 1266 (2002), cert. denied, 357 N.C. 65, 2003 N.C. LEXIS 594 (2003), cert. dismissed, 602 S.E.2d 679, 2004 N.C. LEXIS 1044 (2004).

In defendant’s trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant’s girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant’s claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443, 2003 N.C. App. LEXIS 743 (2003).

Although the trial court properly admitted a police officer’s testimony about the underlying facts of defendant’s prior 1995 conviction for assault inflicting serious injury, the trial court committed reversible error by admitting the state’s exhibit of a copy of defendant’s criminal conviction for that assault because admitting the bare fact of a non-testifying defendant’s prior conviction after testimony had been elicited to establish the factual basis underlying that conviction violated G.S. 8C-1, N.C. R. Evid. 404(b), and 403; the bare fact of the prior conviction was inherently prejudicial. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).

Testimony concerning the defendant’s discipline of the victim, the manner in which she spoke to him, along with testimony describing her as a “pushy person,” was properly admitted where the defendant was charged with felony child abuse and her treatment of the victim was at issue and, thus, relevant. State v. Clark, 138 N.C. App. 392, 531 S.E.2d 482, 2000 N.C. App. LEXIS 635 (2000), cert. denied, 353 N.C. 730, 551 S.E.2d 108, 2001 N.C. LEXIS 792 (2001).

Absence of Mistake. —

Where defendant was on trial for murdering his 2 1/2 year old niece, evidence that 6 months prior defendant became angry with girlfriend’s 4 year old son and shook him and threw him into a chair which then slid and hit the wall was relevant to establish defendant’s motive and intent in shaking niece and to show absence of mistake on defendant’s part. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576, 1997 N.C. LEXIS 477 (1997).

Identity. —

Evidence showing that defendant beat his girlfriend in the head with the same pistol used to murder the victim was admissible under subsection (b) for the purpose of identity. State v. Robinson, 346 N.C. 586, 488 S.E.2d 174, 1997 N.C. LEXIS 478 (1997).

The testimony of a narcotics officer connecting the defendant to an address where clothing worn by the alleged murderer was found did not impermissibly introduce evidence of “crimes, wrongs, or acts” in violation of this section nor was the possibility of the jury’s drawing a conclusion from the occupation of the witness as to the defendant’s activities prejudicial. State v. Hanton, 140 N.C. App. 679, 540 S.E.2d 376, 2000 N.C. App. LEXIS 1278 (2000).

In a first-degree murder, attempted robbery with a dangerous weapon (a knife), and assault with a deadly weapon with intent to kill inflicting serious injury case, the evidence of defendant’s prior arrest for carrying a knife was properly admitted at trial pursuant to N.C. R. Evid. 404(b) for the purpose of identifying defendant as the perpetrator, as it showed that defendant was in the habit of carrying a knife, while the other evidence tended to show that his accomplice was not. State v. Sutton, 169 N.C. App. 90, 609 S.E.2d 270, 2005 N.C. App. LEXIS 534 (2005).

Prior Sex Acts by Defendant Showing Intent, Motive or Plan. —

Evidence of prior sex acts may have some relevance to the question of defendant’s guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. Such evidence is deemed admissible and not violative of the general rule prohibiting character evidence. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Trial court did not err in permitting child sex offender’s prior child victims to testify to show that defendant had a motive for the commission of the crime charged, that defendant had the necessary intent, and there existed in the mind of defendant a plan, scheme, system or design involved in the crime charged in the case. State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316, 2001 N.C. App. LEXIS 1185 (2001), cert. denied, 536 U.S. 967, 122 S. Ct. 2680, 153 L. Ed. 2d 851, 2002 U.S. LEXIS 5060 (2002).

Where defendant was accused of meeting teenage girls in a skating rink, inviting them to his home for parties, providing drugs and alcohol to these girls, and photographing them in various stages of undress, evidence that defendant had been convicted in another state of similar crimes 10 to 15 years earlier was admissible as evidence of defendant’s motive and intent, and of a common scheme or plan. State v. Patterson, 149 N.C. App. 354, 561 S.E.2d 321, 2002 N.C. App. LEXIS 215 (2002).

At defendant’s trial on charges of first degree statutory rape of a female child under 13 years old, statutory sexual offense of a female child under 13 years old, and taking indecent liberties with a child, trial court properly allowed victim’s sister to testify that the defendant had touched her vagina and breasts and had masturbated in front of her; this testimony showed a pattern of opportunity as well as a common plan or scheme. State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603, 2002 N.C. App. LEXIS 653 (2002).

Where defendant had sexually explicit conversations with a 15-year-old former karate student in violation of G.S. 14-202.1, the trial court’s admission of evidence of defendant’s subsequent conduct with another student where there were certain similarities was not prejudicial under the circumstances. State v. Every, 157 N.C. App. 200, 578 S.E.2d 642, 2003 N.C. App. LEXIS 538 (2003).

Evidence of prior sex acts may have some relevance on the question of defendant’s guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118, 1988 N.C. LEXIS 23 (1988).

Evidence that perpetrators of sexual offenses have committed other sexual acts with their victims may be relevant and admissible. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

North Carolina is quite liberal in admitting evidence of other sex offenses when those offenses involve the same victim as the victim in the crime for which the defendant is on trial. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544, 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

When the State seeks to introduce evidence of prior, similar sex offenses by a defendant, the Supreme Court of North Carolina has been markedly liberal in admitting such evidence for the purposes cited in subsection (b) of this rule. State v. Artis, 325 N.C. 278, 384 S.E.2d 470, 1989 N.C. LEXIS 482 (1989), vacated, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604, 1990 U.S. LEXIS 1467 (1990) (in light of) State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

North Carolina liberally admits evidence of prior similar sex offenses; this is particularly true where the fact sought to be proved is the defendant’s intent to commit a similar sexual offense for which the defendant has been charged. State v. Sneeden, 108 N.C. App. 506, 424 S.E.2d 449, 1993 N.C. App. LEXIS 86 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218, 1994 N.C. LEXIS 309 (1994).

The trial court did not err in admitting evidence that defendant had previously sexually assaulted another daughter pursuant to Rule 403 and subsection (b) of this rule. State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812, 1994 N.C. App. LEXIS 160 (1994).

Where five females testified that defendant looked after them when they were young and began his misconduct by touching them and fondling them, began to touch them more invasively as they grew older, had sexual intercourse with all but one of them and convinced each of them to remain quiet about the abuse by threatening to send them away or by threatening to stop taking care of their financial needs, all of the witnesses testified to similar forms of abuse which demonstrated a distinct pattern over a protracted period. State v. Frazier, 121 N.C. App. 1, 464 S.E.2d 490, 1995 N.C. App. LEXIS 954 (1995), aff'd, 344 N.C. 611, 476 S.E.2d 297, 1996 N.C. LEXIS 510 (1996).

While testimony regarding previous rape may have been irrelevant, its admission was not prejudicial where defendant’s admission of intercourse on the grounds of consent was effectively a confession. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, 1999 N.C. App. LEXIS 604 (1999), aff'd, 351 N.C. 611, 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Where testimony of defendant’s two daughters gave ample evidence of the types of sexual abuse they suffered to conclude that the same person committed the offenses, admission of prior bad acts as evidence was held appropriate under G.S. 8C-1, Rule 404(b). State v. Patterson, 150 N.C. App. 393, 563 S.E.2d 88, 2002 N.C. App. LEXIS 491, aff'd, 356 N.C. 606, 572 S.E.2d 780, 2002 N.C. LEXIS 1261 (2002).

Rule allows admission of conduct evidence so long as it is offered for a purpose other than to show that defendant had the propensity to engage in the charged conduct; in a case involving a charge that defendant performed a sex act on a minor girl, the trial court did not err in allowing the girl’s mother to testify that defendant had performed a sex act on the mother nearly 20 years before. State v. Love, 152 N.C. App. 608, 568 S.E.2d 320, 2002 N.C. App. LEXIS 971 (2002).

Admission of victims’ prior consistent statements was permitted at defendant’s trial for statutory rape, because the testimony was admitted for proper purposes, namely to show opportunity, a common scheme, and the assailant’s identity; the victims’ testimony shared similarities and temporal proximity. State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774, 2005 N.C. App. LEXIS 250 (2005).

In defendant’s prosecution for sexual abuse, trial court properly allowed, under G.S. 8C-1-404(b) the testimony of four witnesses who asserted that defendant had sexually abused them when they were children, as that testimony showed a strikingly similar pattern of sexually abusive behavior by defendant over a period of 31 years. State v. Register, 206 N.C. App. 629, 698 S.E.2d 464, 2010 N.C. App. LEXIS 1649 (2010).

Testimony of a victim’s half-brother should not have been admitted pursuant to G.S. 8C-1, N.C. R. Evid. 404(b), as events the half-brother testified to lacked similarity with crimes with which defendant was charged; defendant and the half-brother were both minors when they engaged in sexual behavior, but defendant was 27 years old and the victim was 11 years old when the events alleged by the State took place. State v. Beckelheimer, 211 N.C. App. 362, 712 S.E.2d 216, 2011 N.C. App. LEXIS 714 (2011), rev'd, 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012).

Trial court did not commit plain error by admitting evidence of a prior alleged rape because while defendant’s identity was a material fact, it was not necessarily in issue; evidence of the prior rape was, at best, tangential to proving defendant was, in fact, in North Carolina approximately two years later at the time of the rape in the case, and the circumstances of the two rapes were not so particularly similar as to necessarily constitute proof that the same individual committed both. State v. Mack, 277 N.C. App. 505, 860 S.E.2d 271, 2021- NCCOA-215, 2021 N.C. App. LEXIS 219 (2021).

Trial court did not commit plain error by admitting evidence of a prior alleged rape because in light of the overwhelming evidence of defendant’s identity and guilt, defendant had not shown the jury would have reached a different result; the State presented DNA evidence showing 660 sextillion-to-one that defendant’s, and not someone else’s, DNA was in the victim’s sexual assault kit, and the victim affirmatively identified him as her assailant and gave detailed testimony of the incident. State v. Mack, 277 N.C. App. 505, 860 S.E.2d 271, 2021- NCCOA-215, 2021 N.C. App. LEXIS 219 (2021).

Trial court properly admitted testimony of defendant’s prior sexual assaults where (1) the prior assaults were admitted for purposes other than to show defendant had a propensity to commit the crimes charged; (2) the trial court instructed the jury to limit its consideration of the prior assaults to those proper purposes; (3) the trial court found that the assaults bore several similarities; (4) there were sufficient similarities to support a reasonable inference that the defendant committed all three assaults; and (5) the prior assaults were not so temporally remote as to diminish their probative value. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145, 2001 N.C. App. LEXIS 269 (2001).

Joinder of four sex offense charges against defendant was error, but not prejudicial error, where the record revealed that the crimes charged against defendant occurred over a period of 12 years, from 1984 to 1996, and involved three different victims (one being defendant’s daughter, one his niece and the third unrelated), but, although all of the charges alleged sexual crimes against children, the evidence did not show that defendant went about committing them in any special way, or place, and where he neither offered an argument to support his objection to the joinder nor suggested to the court that it would prejudice him, and the evidence of the other crimes would have been admissible under section (b) of this rule. State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248, 2000 N.C. App. LEXIS 807 (2000).

By attacking the victim’s character for marital fidelity, defendant went beyond what was necessary for his defense and opened the door to the rebuttal evidence. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, 1994 N.C. LEXIS 302, cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429, 1994 U.S. LEXIS 8123 (1994).

In a prosecution for first-degree murder, first-degree rape, and first-degree sexual assault, evidence of defendant’s sexual relations with his ex-wife were probative of defendant’s state of mind at the time the victim was sexually assaulted and murdered, and was properly admitted. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

The similarity between two crimes, closely connected temporally, clearly supported the admission of a previous rape to prove identity and intent in the attempted rape for which defendant was being tried. State v. Carter, 338 N.C. 569, 451 S.E.2d 157, 1994 N.C. LEXIS 715 (1994), cert. denied, Carter v. North Carolina, 515 U.S. 1107, 115 S. Ct. 2256, 132 L. Ed. 2d 263, 1995 U.S. LEXIS 3724 (1995).

Evidence of a party’s prior driving record is inadmissible in automobile cases. However, where the jury found defendant negligent, admission of defendant’s good driving record could not have influenced the jury’s verdict to plaintiff’s detriment. Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, 1988 N.C. App. LEXIS 244 (1988).

The court did not commit plain error in admitting defendant’s driving offenses where defendant’s driving offenses from eight to two years past were sufficiently proximate in time to the offenses charged, including murder in the second degree for causing a fatal automobile accident as a result of fleeing a police officer. State v. Fuller, 138 N.C. App. 481, 531 S.E.2d 861, 2000 N.C. App. LEXIS 632 (2000).

The trial court’s instructions properly limited the use of evidence of defendant’s prior traffic violations under this rule. State v. Fuller, 138 N.C. App. 481, 531 S.E.2d 861, 2000 N.C. App. LEXIS 632 (2000).

While the trial court erred in admitting defendant’s entire driving record because of the remoteness in time of some of the convictions, admission of the entire record did not prejudice defendant to the extent required under a plain error analysis, and defendant’s driving convictions were admissible to prove defendant’s malice in his trial for second degree murder following an auto accident. State v. Goodman, 149 N.C. App. 57, 560 S.E.2d 196, 2002 N.C. App. LEXIS 132 (2002), rev'd in part, 357 N.C. 43, 577 S.E.2d 619, 2003 N.C. LEXIS 315 (2003).

Trial court violated G.S. 8C-1, N.C. R. Evid. 404(b) by admitting multiple letters of suspension, with no redaction of the specific offenses for which the driver’s license was revoked, including multiple counts of driving while impaired. State v. Scott, 167 N.C. App. 783, 607 S.E.2d 10, 2005 N.C. App. LEXIS 8 (2005).

Evidence of Prior Robberies. —

Admission of evidence of defendant’s participation in several robberies, to corroborate the accounts of other witnesses or for the purpose of showing defendant’s motive, intent or plan to commit the instant crime, presented with limiting jury instructions, could not fairly be characterized as arbitrary and unreasonable and in violation of the principles of G.S. 8C-1, Rule 403. State v. Hall, 134 N.C. App. 417, 517 S.E.2d 907, 1999 N.C. App. LEXIS 812 (1999).

Evidence of a prior robbery and a prior attempted robbery was correctly admitted after the court determined that the evidence was relevant for some purpose other than to show defendant’s propensity to commit this type of crime, as required by this rule, and that it was more probative than prejudicial, as required by G.S. 8C-1, Rule 403. State v. Leggett, 135 N.C. App. 168, 519 S.E.2d 328, 1999 N.C. App. LEXIS 981 (1999).

In defendant’s trial for robbery with a dangerous weapon, admission of testimony concerning a separate robbery was proper, as the similarities between the two robberies were striking, including the fact that the victims were robbed of their credit or debit cards by one or more handgun-wielding individuals with African accents, which were then used by defendant to purchase gas at the same gas station within a very short period of time; evidence was admissible under G.S. 8C-1-404(b). State v. Mohamed, 205 N.C. App. 470, 696 S.E.2d 724, 2010 N.C. App. LEXIS 1270 (2010).

Conversation Regarding Advantages of Committing Armed Robbery. —

Evidence of defendant’s alleged conversation with witness 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, constituted Rule 404(b) evidence of another “crime, wrong, or act” on the part of defendant, but was admissible, inter alia, to show defendant had a plan, scheme, system, or design involving the commission of robberies. State v. Wilson, 108 N.C. App. 117, 423 S.E.2d 473, 1992 N.C. App. LEXIS 868 (1992).

Questions About Collateral Misdeeds Must Have Good Faith Basis. —

A defendant who takes the stand may be asked about collateral misdeeds that tend to show his criminal conduct, intent or motive in the case being tried. But such questions must have a good faith basis. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109, 1985 N.C. App. LEXIS 4350 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 571, 1986 N.C. LEXIS 2022 (1986), writ denied, 316 N.C. 197, 341 S.E.2d 572, 1986 N.C. LEXIS 2023 (1986).

Informing Jury of Misdeeds. —

The State, by questions put to a defendant during cross-examination, may not inform the jury of purported misdeeds by the defendant that firsthand knowledge of source does not support. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109, 1985 N.C. App. LEXIS 4350 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 571, 1986 N.C. LEXIS 2022 (1986), writ denied, 316 N.C. 197, 341 S.E.2d 572, 1986 N.C. LEXIS 2023 (1986).

Evidence Inadmissible If Its Only Value Is to Show Defendant’s Propensity to Commit an Offense. —

Subsection (b) of this rule is one of inclusion of relevant evidence of other crimes subject to but one exception requiring its exclusion if its only probative value is to show that defendant has propensity or disposition to commit an offense of nature of crime charged. State v. Faircloth, 99 N.C. App. 685, 394 S.E.2d 198, 1990 N.C. App. LEXIS 837 (1990).

The trial court’s error in allowing evidence of a prior assault by defendant on the victim entitled him to a new trial; evidence of the 1994 assault did not tend to prove a material fact in issue in the crimes charged and demonstrated no connection between the 1994 assault and the 1997 assaults, other than the defendant’s propensity for violence, making it inadmissible under this section. State v. Elliott, 137 N.C. App. 282, 528 S.E.2d 32, 2000 N.C. App. LEXIS 325, rev'd, 352 N.C. 663, 535 S.E.2d 32, 2000 N.C. LEXIS 743 (2000).

Evidence of Other Crimes Is Not Admissible to Prove Character. —

All that subsection (b) of this rule forbids is receiving evidence of other crimes, wrongs or acts to prove the character of a person in order to show that he acted in conformity therewith. State v. Elledge, 80 N.C. App. 714, 343 S.E.2d 549, 1986 N.C. App. LEXIS 2246 (1986).

Defendant was prejudiced pursuant to G.S. 15A-1443(a) by the trial court’s decision to allow the State to cross-examine defendant regarding two prior criminal charges that had been voluntarily dismissed against him, as the State sought to show that defendant had engaged in violent conduct previously with only slight provocation and that he then claimed self-defense against those charges; however, such evidence of an alleged violent propensity was specifically not allowed under N.C. R. Evid. 404(b), and there was insufficient evidence regarding the factual circumstances of the other incidents to determine whether defendant acted similarly in the charge that defendant was on trial for. State v. Goodwin, 186 N.C. App. 638, 652 S.E.2d 36, 2007 N.C. App. LEXIS 2266 (2007).

Evidence of prior wrongs cannot come into show the character of a person and that he acted in conformity with that character; thus, evidence of 14 separate incidents, which was clearly relevant to no other issue than to show that the defendant was a violent man and therefore must have been the aggressor when he shot and killed victim, was indirect contravention of subsection (b) of this rule, and the trial court erred in allowing it. State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130, 1986 N.C. App. LEXIS 2750 (1986).

Evidence of a violent disposition to prove that a person was the aggressor in an affray is an impermissible use of evidence of other crimes and not admissible under subsection (b), but even assuming that these acts were relevant and admissible, the probative value is far outweighed by the prejudicial effect of their admissibility and their admission and that they would only serve to show to the jury that the deceased was somewhat less worthy of living than someone who hadn’t performed these relevant acts. State v. Smith, 337 N.C. 658, 447 S.E.2d 376, 1994 N.C. LEXIS 489 (1994).

Prosecutor May Not Argue Defendant’s Bad Character Therefrom. —

Where evidence of defendant’s past convictions was offered and admitted solely to impeach defendant’s credibility, and this was the only legitimate purpose for which the evidence was admissible, it was error for the prosecutor in his argument to use defendant’s prior convictions primarily to characterize him as a bad man of a violent, criminal nature and more likely to be guilty of the crime charged. State v. Tucker, 317 N.C. 532, 346 S.E.2d 417, 1986 N.C. LEXIS 2405 (1986).

Prosecutor’s Questions About Prior Crime Exceeded Permissible Purpose. —

While, in murder prosecution, evidence that defendant was familiar with the gun and had used it previously might rebut defendant’s claim of accident, the State greatly exceeded this purpose and questioned the witness at length about the details of the breaking and entering, details which had no connection with the crime for which defendant was being prosecuted. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, 1988 N.C. App. LEXIS 722 (1988).

Improper Impeachment of Witness’s Statement by Extrinsic Evidence. —

Defendant was granted a new trial on his convictions involving the sexual abuse of his grandchildren; the trial court committed prejudicial error under G.S. 15A-1443(a) by allowing the State to impeach by extrinsic evidence testimony by defendant’s son and two daughters that defendant had never sexually abused them, and the error was so highly prejudicial that it likely affected the verdict, and because the evidence of prior sexual misconduct was not admissible under a hearsay exception, G.S. 8C-1, N.C. R. Crim. P. 404(b). State v. Mitchell, 169 N.C. App. 417, 610 S.E.2d 260, 2005 N.C. App. LEXIS 682 (2005).

Scope of Inquiry on Cross-Examination of Defendant. —

By choosing to testify, a defendant is subject to cross-examination as other witnesses; defendant waived his privilege against self-incrimination regarding bad acts when he elected to testify. State v. Artis, 91 N.C. App. 604, 372 S.E.2d 905, 1988 N.C. App. LEXIS 908 (1988).

Where defendant testified on direct examination that he had no intent of selling cocaine until he was approached by the informant, he raised the issue of entrapment, and G.S. 8C-1, Rule 404(b) allowed the State on cross-examination to question defendant concerning the prior sale to undercover police to prove absence of entrapment; defendant’s privilege against self-incrimination was not violated by the questions. State v. Artis, 91 N.C. App. 604, 372 S.E.2d 905, 1988 N.C. App. LEXIS 908 (1988).

Evidence of a victim’s awareness of prior crimes allegedly committed by the defendant may be admitted to show that the victim’s will had been overcome by her fears for her safety, where the offense in question requires proof of lack of consent or that the offense was committed against the will of the victim. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Evidence of physical abuse and animal abuse done in victim’s presence was admissible pursuant to this rule where it tended to explain victim’s fear of defendant and why she never reported all the incidents of sexual abuse, and where defendant specifically made her state of mind relevant; to the extent that evidence of physical and/or animal abuse not done in her presence was admitted, such admission was error, but would not have changed the outcome so as to require a new trial. State v. Thompson, 139 N.C. App. 299, 533 S.E.2d 834, 2000 N.C. App. LEXIS 895 (2000).

Trial court’s admission of the victim’s testimony from a domestic violence protective order hearing did not violate his right to confront the witness against him, nor did it violate G.S. 8C-1, Rules 403, 404(b), or 803(3) of the North Carolina Rules of Evidence, where the hearsay statements constituted, and were admissible as, statements of declarant’s then-existing mental, emotional, or physical condition and where their probative value outweighed their prejudicial effect. State v. Thibodeaux, 352 N.C. 570, 532 S.E.2d 797, 2000 N.C. LEXIS 615 (2000), cert. denied, 531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976, 2001 U.S. LEXIS 1282 (2001).

Evidence of Victim Intimidation Admissible. —

Testimony that suggested that defendant intimidated the victim was not admitted in violation of this rule because it was relevant as an explanation for why the victim did not identify the shooter and for why the victim did not testify at trial, and therefore it was admissible for a purpose other than its negative character implications.

Witness’ Statement to Officer. —

Officer’s testimony that a witness said she was afraid to talk to the police did not violate the rule against evidence of “other crimes,” as the testimony did not relate to “other crimes” of defendant; it did, however, violate the hearsay rule. State v. Evans, 149 N.C. App. 767, 562 S.E.2d 102, 2002 N.C. App. LEXIS 310 (2002).

Evidence Properly Admitted. —

In defendant’s trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court (1) properly admitted the videotaped statement that defendant’s wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant’s wife refused to testify for the State at defendant’s trial, (2) properly admitted letters one of defendant’s co-conspirators wrote to a girlfriend urging her to lie about her involvement in the co-conspirator’s attempt to conceal evidence of the crime, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and (3) properly admitted evidence of similar crimes that defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640, 2003 N.C. App. LEXIS 178 (2003), cert. denied, 358 N.C. 547, 2004 N.C. LEXIS 1107 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784, 2005 U.S. LEXIS 565 (2005).

Evidence of two prior assaults defendant committed against an unrelated party was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), because such evidence demonstrated that defendant was aware that striking a person with a beer bottle was a reckless and dangerous act that could cause serious injury. State v. Morgan, 359 N.C. 131, 604 S.E.2d 886, 2004 N.C. LEXIS 1199 (2004), cert. denied, 546 U.S. 830, 126 S. Ct. 47, 163 L. Ed. 2d 79, 2005 U.S. LEXIS 6153 (2005), writ denied, 363 N.C. 586, 683 S.E.2d 380, 2009 N.C. LEXIS 733 (2009), writ denied, 363 N.C. 586, 683 S.E.2d 381, 2009 N.C. LEXIS 1053 (2009).

In a robbery and murder prosecution, testimony about defendant’s past robberies and prior drug dealing provided evidence of his motive, his intent to commit the crimes, and his modus operandi and was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b). State v. Hightower, 168 N.C. App. 661, 609 S.E.2d 235, 2005 N.C. App. LEXIS 454 (2005).

Trial court properly admitted various evidence in defendant’s trial pursuant to G.S. 8C-1, Rule 404(b), because the various evidence was not admitted to prove the character of defendant in order to show that he acted in conformity therewith and was not overly prejudicial. State v. Matthews, 175 N.C. App. 550, 623 S.E.2d 815, 2006 N.C. App. LEXIS 138 (2006).

In defendant’s murder trial, the trial court did not err in admitting evidence pursuant to G.S. 8C-1-404(b) regarding an individual close to defendant who 17 years prior to the victim’s death was found dead at the bottom of a set of stairs; the trial court found that evidence of the individual’s death was probative of defendant’s intent, knowledge, and the absence of accident in the victim’s death, and the trial court found the evidence to be relevant, finding 17 similarities between the circumstances of the individual’s death and that of the victim’s. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594, 2006 N.C. App. LEXIS 1980 (2006), aff'd, 361 N.C. 587, 652 S.E.2d 216, 2007 N.C. LEXIS 1101 (2007).

Trial court did not err in admitting evidence of drug transactions subsequent to the drug transaction for which defendant was charged. The subsequent transaction evidence was not admitted to show defendant’s propensity to commit such an offense, but represented a substantial basis upon which a jury could find that defendant had committed a similar act. State v. Mack, 188 N.C. App. 365, 656 S.E.2d 1, 2008 N.C. App. LEXIS 232 (2008).

On appeal from convictions including rape and kidnapping, the trial court did not err or abuse its discretion in admitting into evidence a receipt for pornographic movies that listed the movie titles, and for admitting evidence of defendant’s alleged prior acts of domestic violence against the victim, as: (1) defendant failed to state his grounds for objection to the admission of physical evidence; (2) the evidence was relevant; (3) the prior acts evidence was properly admitted to show defendant’s motive, intent or purpose, opportunity, and plan; (4) defendant failed to request a limiting instruction at the time of the admission of the receipt, and failed to request that the trial court redact the movie titles from the receipt; and (5) even assuming that defendant’s general objection preserved the matter for appellate review, the record revealed that the admission of the receipt into evidence did not prejudice defendant. State v. Daniels, 189 N.C. App. 705, 659 S.E.2d 22, 2008 N.C. App. LEXIS 711 (2008), dismissed, 203 N.C. App. 350, 691 S.E.2d 78, 2010 N.C. App. LEXIS 558 (2010).

Admission of evidence under G.S. 8C-1, N.C. R. Evid. of his prior arrest for the same drug possession offense was not plain error because, inter alia, when the first judge declared a mistrial, his rulings barring this evidence no longer had legal effect, and, thus, neither collateral estoppel nor the one judge overruling another rule applied at the second trial. State v. Harris, 198 N.C. App. 371, 679 S.E.2d 464, 2009 N.C. App. LEXIS 1163 (2009).

Admission during defendant’s trial on child abuse and first-degree murder charges of evidence of defendant’s abuse of all defendant’s surviving children was within the trial court’s discretion under G.S. 8C-1, N.C. R. Evid. 404(b) due to the similarity of the abuse with the abuse that led to the death of defendant’s son. State v. Paddock, 204 N.C. App. 280, 696 S.E.2d 529, 2010 N.C. App. LEXIS 939 (2010).

Testimony of a victim’s friend as to defendant’s prior bad acts was properly admitted, as the friend testified that defendant initiated sexual conduct after wrestling or “roughhousing,” and both the friend and the victim testified that defendant digitally penetrated their vagina and that defendant forced them to masturbate defendant. State v. Oliver, 210 N.C. App. 609, 709 S.E.2d 503, 2011 N.C. App. LEXIS 599 (2011).

Epsom salt taken from defendant along with a police officer’s testimony regarding his observations and belief that it could be crack cocaine and as a result field tested the substance, was properly admitted because it was probative of defendant’s intent, plan, scheme and modus operandi and thus, it was relevant for some purpose other than to show defendant’s propensity for selling his prescription medication. State v. Hanif, 228 N.C. App. 207, 743 S.E.2d 690, 2013 N.C. App. LEXIS 723 (2013).

Trial court did not err in admitting the testimony of a witness as there were significant similarities between the charged offenses and the witness’s experience that were not derived from the deceased victim’s statement to a police major to admit the witness’s testimony because the intoxicated witness was walking in Charlotte at night and accepted a ride from two unknown African-American men; and, once in the car, she was hit on the head with something silver and a cloth was put over her head; thus, even if the prosecutor improperly referred to the location where the deceased victim was released in his argument for admission of the witness’s testimony, there was no basis to conclude that the trial court based its ruling on that information. State v. Thompson, 250 N.C. App. 158, 792 S.E.2d 177, 2016 N.C. App. LEXIS 1060 (2016).

Trial court did not err by admitting an officer’s testimony that contained admissions that defendant had embezzled cash receipts from his previous employer because it was relevant to show his intent, plan, or absence of mistake or accident, the crimes and defendant’s methods were similar, and the trial court limited the evidence’s use in its instructions to the jury. State v. Fink, 252 N.C. App. 379, 798 S.E.2d 537, 2017 N.C. App. LEXIS 192 (2017).

Evidence of Prior Convictions Held Inadmissible and Prejudicial. —

In defendant’s trial on a charge of felony possession of cocaine, the trial court erred by allowing a deputy clerk to testify regarding defendant’s prior convictions for possession with intent to sell and deliver cocaine and sale of cocaine, G.S. 8C-1, N.C. R. Evid. 404(b), without requiring evidence of the underlying facts of the prior convictions to show similarities between the prior convictions and the offense charged; given the conflicting evidence in defendant’s case, the error was prejudicial. State v. Hairston, 156 N.C. App. 202, 576 S.E.2d 121, 2003 N.C. App. LEXIS 74 (2003).

During defendant’s trial on charges of attempted first-degree rape and first-degree sexual assault of a child, the trial court erred by admitting a witness’s testimony concerning defendant’s rape of her eight years before under this rule where it was not relevant to show opportunity and it was not relevant to show defendant had a plan given the numerous differences between the crimes, including the ages of the victims and the fact that a weapon was used in the prior rape but not in the instant assault. The error was not harmless because there was a lack of physical evidence of defendant’s guilt and the State’s case was based largely on credibility. State v. Watts, 246 N.C. App. 737, 783 S.E.2d 266, 2016 N.C. App. LEXIS 349 (2016), modified in part, aff'd, 370 N.C. 39, 802 S.E.2d 905, 2017 N.C. LEXIS 553 (2017).

Evidence Held Improper But Not Prejudicial. —

In light of uncontradicted evidence recorded against defendant, the State’s line of questioning in connection with defendant’s previous criminal record, while improper under subsection (b) of this rule, was not prejudicial. State v. Butler, 90 N.C. App. 463, 368 S.E.2d 887, 1988 N.C. App. LEXIS 563, cert. denied, 323 N.C. 176, 373 S.E.2d 116, 1988 N.C. LEXIS 571 (1988).

Testimony regarding defendant’s failure to spend time with his sons did not tend to show that the victim was afraid of defendant or that she had no intention of reconciling with him. Rather, the evidence tended to show defendant’s bad character and, as such, should not have been admitted. In light of all the evidence that was properly introduced, however, this tangential bit of evidence could not have affected the outcome of the trial; therefore, it was not prejudicial error. State v. Jolly, 332 N.C. 351, 420 S.E.2d 661, 1992 N.C. LEXIS 467 (1992).

Trial court did not commit plain error by denying defendant’s motion to exclude evidence found at a residence because, even though it was not admissible under this section as he was not charged with any offense in connection with contraband at that residence, defendant was arrested with over 10 pounds of marijuana in his vehicle and therefore the jury could still have concluded that defendant was a high level drug trafficker. State v. McKnight, 239 N.C. App. 108, 767 S.E.2d 689, 2015 N.C. App. LEXIS 18 (2015).

Even though a detective’s testimony that he encountered defendant related to a previous narcotics case constituted error under this rule, the error was not plain because the State presented surveillance video of an individual shooting the victim and the detective identified defendant as the individual in the video.

Videotaping of Family Bathroom Not Relevant to Sex Offense Charge. —

The admission of evidence indicating that the defendant, who was charged with two counts of first degree statutory sex offense against the twelve-year-old daughter of his girlfriend, installed a camcorder in his girlfriend’s bathroom was error, pursuant to this section, since it did not tend to demonstrate a plan or scheme to sexually assault the child; however, its admission was not reversible error since the defendant failed to show it had “a probable impact on the jury’s finding of guilt.” State v. Doisey, 138 N.C. App. 620, 532 S.E.2d 240, 2000 N.C. App. LEXIS 779 (2000), cert. denied, 531 U.S. 1177, 121 S. Ct. 1153, 148 L. Ed. 2d 1015, 2001 U.S. LEXIS 1596 (2001).

Inadmissible Evidence Admitted but Held Harmless Error. —

Although testimony was not relevant to any issue except the defendant’s character to show that he had a propensity for bad acts and acted in conformity therewith in killing victim, it was harmless error to admit this testimony. In light of the strong substantive evidence against the defendant, as well as other evidence of bad acts including the ingestion of illegal drugs, the result would not have been different had this testimony been excluded. State v. Willis, 332 N.C. 151, 420 S.E.2d 158, 1992 N.C. LEXIS 466 (1992).

Where defendant did not object to the prosecutor cross-examining him as to his alleged prior assaults, the appellate court’s review of the record and transcripts satisfied that court that the defendant did not meet the test for finding plain error because the State presented strong evidence of defendant’s guilt through the testimony of three eye witnesses who were present when the victim, a police officer, was shot, with all three giving consistent testimony identifying defendant as the shooter; therefore it was not possible for the appellate court to say that the cross-examination amounted to a miscarriage of justice or denied defendant a fundamental right. State v. Augustine, 359 N.C. 709, 616 S.E.2d 515, 2005 N.C. LEXIS 836 (2005).

DNA Databank Evidence Properly Admitted. —

The admission of testimony regarding the source of the DNA in the DNA data bank which led to the conviction of the defendant for a murder committed 4 years earlier was not plain error under this section. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145, 2001 N.C. App. LEXIS 269 (2001).

Evidence of Defendant’s Gang Membership Properly Admitted. —

In a robbery and murder prosecution, testimony that defendant was a gang member was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) to show his motive for the robbery and the reason for an accomplice’s involvement — as gang-initiation rite. State v. Hightower, 168 N.C. App. 661, 609 S.E.2d 235, 2005 N.C. App. LEXIS 454 (2005).

Failure to Show Admissibility. —

When a patient in a medical malpractice case argued that statistical reports dealing with infections would be admissible under G.S. 8C-1, N.C. R. Evid. 404(b), but did not explain to what issue in the case a pattern, practice, plan, or modus operandi would be relevant, the appellate court could not conclude that the trial court’s ruling denying her request for the reports was manifestly unreasonable. Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 S.E.2d 851, 2006 N.C. App. LEXIS 983 (2006).

State Bar Disciplinary Hearing. —

North Carolina State Bar Disciplinary Hearing Commission (DHC) did not violate the rule in admitting the results of two prior audits because the results of the audits were relevant to the intent of the attorney to commit acts where the harm or potential harm was foreseeable and a pattern of misconduct; the audit results were not used to show the attorney’s propensity to mismanage his trust account because the DHC had already determined that he had committed that misconduct. N.C. State Bar v. Adams, 239 N.C. App. 489, 769 S.E.2d 406, 2015 N.C. App. LEXIS 167 (2015).

IV.Illustrative Cases

Evidence Held Admissible. —

Evidence that on the day prior to robbery the defendant had pleaded guilty to a crime in federal court and that he had been ordered to pay a fine of $2,500 was admissible for the limited purpose of showing that the defendant needed money, and thus had a motive to commit the robbery. State v. Spinks, 77 N.C. App. 657, 335 S.E.2d 786, 1985 N.C. App. LEXIS 4189 (1985), aff'd, 316 N.C. 547, 342 S.E.2d 522, 1986 N.C. LEXIS 2149 (1986).

Photographs depicting defendant in close proximity to marijuana plants or holding or smoking marijuana, which were found in defendant’s kitchen, were admissible as evidence that defendant was living at house at which marijuana was found, and to show defendant’s knowledge of the marijuana. Photographs of defendant’s girlfriend, partially nude, found in an envelope in his bedroom, were also relevant, as evidence that defendant lived in the house. State v. Johnson, 78 N.C. App. 68, 337 S.E.2d 81, 1985 N.C. App. LEXIS 4262 (1985).

In a prosecution for false pretenses involving a check cashing scheme, the testimony of certain witnesses, to the effect that defendant had been involved with passing bad checks in the past, was admissible where defendant had maintained in his own defense at trial that he was mistaken about the legitimacy of the checks and had no knowledge that the fake janitorial service in whose name the checks were written was a sham. State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, 1986 N.C. App. LEXIS 1981 (1986), cert. denied, 317 N.C. 338, 346 S.E.2d 144 (1986), overruled, State v. Rogers, 346 N.C. 262, 485 S.E.2d 619, 1997 N.C. LEXIS 301 (1997).

In trial charging defendant with first-degree sexual offense involving his two sons, evidence relating to sexual activity involving defendant’s three-year-old daughter was properly admitted under this rule. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

In light of the unusual modus operandi involved in the offense at issue, as well as prior sexual assault, the court did not abuse its discretion in admitting evidence of the earlier incident, the “signature” value of which was high. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669, 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

Testimony that murder and assault victims had a bad reputation as violent people who were prone to fight, especially when drunk, was permissible under subdivision (a)(2) of this rule and G.S. 8C-1, Rule 405(a). State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, 1986 N.C. App. LEXIS 2135, writ denied, 316 N.C. 556, 344 S.E.2d 3, 1986 N.C. LEXIS 2377 (1986).

In prosecution for obtaining property by false pretense, involving false representations to homeowners of termite infestation, evidence with respect to other similar transactions in which defendant had engaged was relevant to show motive, intent, plan and knowledge and was a generally permissible inquiry pursuant to subsection (b) of this rule. State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760, 1986 N.C. App. LEXIS 2179 (1986).

Where defendant was being tried for the rape of his five-year-old stepdaughter, testimony of a prison inmate that the defendant had admitted engaging in sexual intercourse with his three-year-old daughter tended to show a common scheme or plan by the defendant to take sexual advantage of the availability and susceptibility of his young daughters. The testimony was therefore admissible under subsection (b) of this rule. State v. Gordon, 316 N.C. 497, 342 S.E.2d 509, 1986 N.C. LEXIS 2154 (1986).

In a prosecution for robbery of a New Bern bank, the court did not err in permitting a teller at another New Bern bank to testify that one of the defendants came into that bank on the day of the robbery and got change for a one hundred dollar bill, where this testimony was offered and received for the limited but proper purpose of showing that the defendants were in New Bern on the day of the robbery and to corroborate the testimony of a confessed participant in the robbery. State v. Alston, 80 N.C. App. 540, 342 S.E.2d 573, 1986 N.C. App. LEXIS 2185, cert. denied, 317 N.C. 707, 347 S.E.2d 441, 1986 N.C. LEXIS 2513 (1986).

In prosecution for rape and other offenses where the State produced evidence that one of the defendants had threatened victim with a knife when they abducted her and that one of the three assailants had told her that he would be back for her and that she would be shot if she reported the crimes, trial court did not err in admitting knives and razor found in defendants’ car five nights later when defendants came to victim’s apartment around 1:00 a.m., beat on the door and attempted to open it, before leaving when a neighbor stepped outside his apartment, as by entering pleas of not guilty and denying that they were the assailants, defendants made identity an issue in the case, and this evidence clearly bore on the issue of identity. State v. Gilliam, 317 N.C. 293, 344 S.E.2d 783, 1986 N.C. LEXIS 2788 (1986).

Evidence that on earlier occasions defendant had broken into his wife’s house and assaulted her tended to prove these two elements of the offense under G.S. 14-277.1 and its receipt did not violate subsection (b) of this rule. State v. Elledge, 80 N.C. App. 714, 343 S.E.2d 549, 1986 N.C. App. LEXIS 2246 (1986).

In a prosecution for felonious larceny of certain tools, evidence of previous dealings between defendant and State’s witness involving the sale of tools was admissible as tending to show a plan or scheme to steal tools and sell them to the witness. State v. Weaver, 318 N.C. 400, 348 S.E.2d 791, 1986 N.C. LEXIS 2657 (1986).

In prosecution for incest, evidence tending to show that defendant had had prior sexual contact with the prosecuting witness was reasonably probative of defendant’s knowledge, opportunity, intent, and plan, and was not so prejudicial as to outweigh its probative value and render it inadmissible; moreover, even if there was error in the admission of such evidence, absent a showing of a reasonable possibility that a different result would have been reached had the evidence been excluded, any possible error would be considered harmless. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327, 1986 N.C. App. LEXIS 2670 (1986).

In trial for rape and incest involving defendant’s minor daughter, evidence that defendant had taken his daughter to an X-Rated movie and told her to look at graphic sexual scenes was admissible to show defendant’s preparation and plan to engage in sexual intercourse with his daughter and to assist in that preparation and plan by making her aware of such sexual conduct and arousing her. State v. Williams, 318 N.C. 624, 350 S.E.2d 353, 1986 N.C. LEXIS 2739 (1986).

In a proceeding before the trial court in which the respondent attorney was found guilty of criminal contempt upon the court’s finding that he “did solicit, encourage and cause” a certain individual to disrupt court, the trial court did not err in admitting into evidence testimony that the respondent violated a court order by making certain public statements. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, 1987 N.C. App. LEXIS 2530 (1987), cert. denied, 319 N.C. 673, 356 S.E.2d 779, 1987 N.C. LEXIS 2118 (1987), cert. denied, 484 U.S. 1004, 108 S. Ct. 694, 98 L. Ed. 2d 646, 1988 U.S. LEXIS 228 (1988).

Where defendant’s identity as the gunman was the key issue in case involving kidnapping, attempted armed robbery, and unauthorized use of a motor vehicle, the fact that witness had received a telephone call from the defendant a month before the attempted robbery tended to support the witness’s claim that he recognized defendant’s voice and thus was admissible, even though the call also concerned a stolen TV set not involved in the charges he was being tried for. State v. Harlee, 85 N.C. App. 159, 354 S.E.2d 348, 1987 N.C. App. LEXIS 2556 (1987).

Where defendant, on cross-examination of a State’s witness, injected the theory that visitor from Florida, rather than defendant, was the perpetrator of the sexual offenses described by the victim, evidence of a continuing scheme to commit sexual acts against the victim was relevant to show that defendant was the perpetrator of the offense allegedly committed. State v. Frazier, 319 N.C. 388, 354 S.E.2d 475, 1987 N.C. LEXIS 1926 (1987).

Where the testimony of the prosecuting witness tended to establish a common plan or scheme on the part of defendant to sexually abuse her child, the testimony of the prosecuting witness regarding other acts of sexual abuse was properly admitted. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, 1987 N.C. App. LEXIS 2586, writ denied, 320 N.C. 174, 358 S.E.2d 65, 1987 N.C. LEXIS 2182 (1987).

In a rape trial, the trial court did not err in allowing a witness to testify that defendant had also attempted to rape her, where in both cases defendant lured the women into his apartment on the pretext that he needed to change clothes before their dates, and once inside, defendant’s pattern of behavior was nearly identical. State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182, 1987 N.C. App. LEXIS 2607 (1987).

Evidence of defendant’s prior conviction in 1977 for assault with intent to rape, as well as his recent release from prison, which was offered to prove that his intent in assaulting and kidnapping his victim was to rape her, was properly admitted for that purpose in trial for kidnapping and attempted rape. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

In prosecution in which defendant was convicted of second degree rape of mentally retarded adult, testimony of five other mentally retarded females which tended to prove a continuing and ongoing course of sexual molestation by defendant of mentally retarded young women employed under his supervision, and a common plan or scheme to take sexual advantage of his relationship of authority over these women, was relevant and admissible under subsection (b) of this rule. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, 1987 N.C. App. LEXIS 2640, writ denied, 320 N.C. 175, 358 S.E.2d 66, 1987 N.C. LEXIS 2247 (1987).

In action against car dealership, alleging breach of contract, malicious prosecution, and unfair and deceptive trade practices, similar occurrence evidence was probative of defendant’s motive, intent, absence of mistake and possible bad faith in its dealings with plaintiff, and thus was properly admitted under subsection (b) of this rule. Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831, appeal of right allowed pursuant to Rule 16(b) and petition allowed as to additional issues, 320 N.C. 513, 358 S.E.2d 521 (1987), aff’d, State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

In murder trial, evidence that defendant came into possession of a large quantity of dynamite the day before the shooting was admissible under this rule to show “preparation” and “plan.” However, the criminal manner by which defendant came to possess the dynamite was not. State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414, 1987 N.C. App. LEXIS 2705 (1987) (holding, however, that the error was harmless) .

Prosecutor’s comment in murder trial on defendant’s failure to present evidence of the victim’s character which might have shown that the victim was the aggressor was permissible. State v. Hager, 320 N.C. 77, 357 S.E.2d 615, 1987 N.C. LEXIS 2170 (1987).

Where defendant put his character in issue by having witnesses testify concerning his reputation for peacefulness, and only then did the prosecutor cross-examine the witnesses about specific instances of conduct by defendant in an effort to rebut their prior testimony as to defendant’s character for peacefulness, the answers to the prosecutor’s questions were properly admitted. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Where the testimony of the three State’s witnesses showed only that each of them had seen defendant in possession of a firearm on some unspecified occasions over a period of years prior to the events giving rise to the present murder charge, and the evidence did not suggest that defendant’s possession of a firearm at any previous time was unlawful, nor did it attribute to him a criminal disposition or a character prone to violence, the admission of such testimony did not violate this rule. State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125, 1987 N.C. App. LEXIS 3074 (1987).

In murder trial, evidence that defendant on previous occasions had assaulted victim was competent to prove his malice toward her and was admissible. State v. Spruill, 320 N.C. 688, 360 S.E.2d 667, 1987 N.C. LEXIS 2416 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2833, 100 L. Ed. 2d 934, 1988 U.S. LEXIS 2635 (1988).

In a civil action for malicious prosecution and intentional infliction of emotional distress, evidence of plaintiff’s attempt in earlier action to bribe witness and subordinate perjury could not accurately be classified as character evidence at all. This testimony on the alleged offense arose out of the particular facts of the case. Lay v. Mangum, 87 N.C. App. 251, 360 S.E.2d 481, 1987 N.C. App. LEXIS 3112 (1987).

Admission of defendant’s 1982 fingerprint identification card and testimony regarding same, for the sole purpose of identifying latent fingerprints taken from credit application completed by individual suspected of larceny, did not violate the longstanding general rule of practice in this State, now codified in subsection (b) of this rule and thus did not unduly influence the jury or prejudice defendant. State v. McKnight, 87 N.C. App. 458, 361 S.E.2d 429, 1987 N.C. App. LEXIS 3215 (1987).

In a first degree sexual offense case, evidence that defendant attempted a remarkable, odd and strikingly similar modus operandi some ten weeks after his attack on victim was relevant and admissible as tending to prove defendant’s modus operandi, motive, intent, preparation and plan. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

In trial for possession with intent to sell and deliver cocaine and marijuana, and the sale and delivery thereof, admission of evidence that on a previous occasion, when officers went to defendant’s admitted residence to purchase controlled substances from another person, an officer saw defendant inside the apartment did not constitute prejudicial error. State v. Fielder, 88 N.C. App. 463, 363 S.E.2d 662, 1988 N.C. App. LEXIS 38 (1988).

Where defendant was charged with raping his stepdaughter in her bunk-bed while her mother was working late at night, mother’s testimony tending to show that defendant similarly took advantage of her cousin when the child was left in his custody, while in his stepdaughter’s bunk-bed, while she was working late at night was admissible under the exception of subsection (b) of this rule, and there was no abuse of discretion by the trial court in failing to exclude this testimony under the balancing test of G.S. 8C-1, Rule 403, since the alleged incident was sufficiently similar to the act charged and not too remote in time. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118, 1988 N.C. LEXIS 23 (1988).

Videotape and magazines and detective’s testimony concerning them were relevant to corroborate child victim’s testimony that defendant had shown him such materials at the time he committed the crimes for which he was on trial, and since the exhibits and testimony were relevant to a fact or issue other than the character of the accused, subsection (b) of this rule did not require that they be excluded from the evidence at trial. State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988).

Where victim’s testimony clearly tended to establish the relevant fact that defendant took sexual advantage of the availability and susceptibility of his young victim at times when she was left in his care, victim’s testimony concerning her father’s other acts of sexual intercourse with her was admissible under this rule, and moreover, the trial court did not abuse its discretion in failing to exclude this testimony under G.S. 8C-1, Rule 403. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Evidence that defendant committed another sex offense against the same child, his young son, on the day after the offense for which he was being tried was admissible under subsection (b) of this rule. State v. Miller, 321 N.C. 445, 364 S.E.2d 387, 1988 N.C. LEXIS 14 (1988).

In trial for murder and other crimes, testimony of jailer who was assaulted during defendant’s escape and of individual from whom defendant and his confederate stole a truck and rifle was admissible to show intent and motive, in that it tended to show that defendant and his confederate intended to escape from jail, and then do whatever was necessary to avoid capture, and therefore that they had a motive for killing state trooper. State v. Bray, 321 N.C. 663, 365 S.E.2d 571, 1988 N.C. LEXIS 225 (1988).

Shooting incident in tavern some two weeks prior to three barroom shootings for which defendant was on trial was sufficiently similar to subsequent killings to be probative of defendant’s guilt, not because of the bizarre or unique nature of the elements, but because of the repetition or reenactment in the barroom of so many of the elements played out in the tavern. State v. Green, 321 N.C. 594, 365 S.E.2d 587, 1988 N.C. LEXIS 112, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

Where evidence of a different sex offense tended to establish a common plan or scheme on the part of defendant to sexually abuse the victim, his stepgranddaughter, such evidence, relating to defendant’s other sexual activity with the victim was properly admitted under this rule. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139, 1988 N.C. App. LEXIS 310 (1988), overruled in part, State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663, 2000 N.C. LEXIS 9 (2000).

In a prosecution for second-degree murder, evidence concerning defendant’s sale of marijuana to the victim was relevant in showing the relationship between the victim and defendant, and given the evidence defendant once questioned the witness about whether the victim was a “nark,” the evidence that defendant sold marijuana was admissible since it had some probative value concerning defendant’s possible motive in the shooting. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, 1988 N.C. App. LEXIS 722 (1988).

Where, in a prosecution for first degree sexual offense, the other incidents for which evidence was admitted occurred within three months of the incident for which the defendant was tried, and they were similar to the incident for which the defendant was tried, they were properly admitted to show a common scheme or plan out of which the crime for which the defendant was tried arose. State v. Rosier, 322 N.C. 826, 370 S.E.2d 359, 1988 N.C. LEXIS 486 (1988).

Where the challenged testimony of the victim, her attending physician, and the investigating police officer tended to establish a plan or scheme by defendant to sexually abuse the victim when the victim’s mother went to work, and where the alleged prior incidents occurred within twelve months prior to the incident for which defendant was charged, proof of the incidents was not so remote in time as to outweigh its probative force; therefore, the trial court did not err in allowing evidence of these prior incidents. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

Trial judge did not abuse his discretion by allowing evidence of prior sexual crimes allegedly committed by defendant upon his children; children’s testimony concerning prior episodes of abuse would show that defendant engaged in scheme whereby he took sexual advantage of the availability and susceptibility of his young daughters at times they were left in his custody, and the probative value of evidence of other sexual acts outweighed any unfair prejudice to defendant. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467, 1989 N.C. App. LEXIS 86 (1989).

Judge correctly permitted the State to introduce evidence of second robbery; defendant’s defense of alibi put in issue whether he participated in the crimes at victim’s house, and the evidence of the second robbery, when coupled with the evidence of the victims, tended to show that both burglaries were committed by the same people, and that defendant was one of the people involved. State v. McDowell, 93 N.C. App. 289, 378 S.E.2d 48, 1989 N.C. App. LEXIS 179 (1989).

Where evidence consisted of first witness’s testimony concerning defendant’s selling and using cocaine in the house and second witness’s testimony that he had previously sold cocaine for defendant, the evidence was not inadmissible character evidence under subsection (b) of this rule; first witness’s testimony was clearly relevant to the charge of maintaining a dwelling for the purpose of keeping and selling a controlled substance and, therefore, its admissibility was not governed by subsection (b); the admissibility of second witness’s testimony was governed by this rule and the testimony was properly admitted to show a defendant’s intent and plan to commit a conspiracy. State v. Rosario, 93 N.C. App. 627, 379 S.E.2d 434, 1989 N.C. App. LEXIS 370 (1989).

In a case where defendant was convicted of raping his daughter, sexual misconduct by defendant toward Sister A or Sister B was not too remote in time from the rape in question to be admitted properly for the purpose of showing a systematic plan; the facts demonstrated sufficient similarity between the prior acts and the crime specified in the indictment to justify the trial court’s admission of evidence of defendant’s prior sexual misconduct; the evidence revealed defendant’s pattern of forcing his daughters to submit to intercourse as they reached puberty and continuing to assault them, using whatever force necessary, into their adulthood and after they had left home. State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842, 1989 N.C. LEXIS 305 (1989).

Where defendant was convicted of first-degree rape, the circumstances of the other crime were sufficiently similar to the crimes charged to be admissible under subsection (b) of this rule; although there were no strikingly peculiar similarities in the manner of their commission, nevertheless, in both crimes the perpetrator forcibly entered motel rooms at night occupied by women who were alone, raped the women with accompanying threats of physical harm and the crimes occurred only two weeks apart at the same motel. State v. Moore, 94 N.C. App. 55, 379 S.E.2d 858, 1989 N.C. App. LEXIS 432 (1989).

The strikingly similar behavior attributed to defendant by all three women — befriending the women; luring them into a dating relationship; and then, after gaining their trust, using physical violence and/or the threat of a deadly weapon to force each woman to engage in vaginal intercourse, anal intercourse, cunnilingus, and fellatio — rendered the testimony of defendant’s former lovers admissible to prove defendant’s modus operandi, plan, motive and intent. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, 1989 N.C. App. LEXIS 464 (1989).

Where defendant was convicted of second degree rape of the 13-year-old daughter of his girlfriend, trial court did not err by allowing the victim to testify concerning prior acts of sexual conduct between the victim and defendant; the testimony tended to illustrate defendant’s opportunity to commit these acts, and a plan to molest the girl in her mother’s absence. State v. Morrison, 94 N.C. App. 517, 380 S.E.2d 608, 1989 N.C. App. LEXIS 545, cert. denied, 325 N.C. 549, 385 S.E.2d 507, 1989 N.C. LEXIS 557 (1989).

Evidence of separate offense was admissible both to show identity and under the common plan exception; even though defendant presented no evidence, the identity exception applied since defendant’s plea of not guilty put into issue every material element of the State’s charges against him, including defendant’s identity. State v. Bullock, 95 N.C. App. 524, 383 S.E.2d 431, 1989 N.C. App. LEXIS 835 (1989).

Trial court’s allowance of testimony by the eight-year-old victim regarding prior acts of sexual misconduct was not error; testimony was admissible to establish a common plan or scheme on the part of defendant to sexually molest his niece. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Evidence of prior assaults by a husband upon his wife was admissible to explain the wife’s failure to move out and to prove that because of her fear arising from earlier abuse, her failure to leave her husband’s home should not be construed as consent to his abuse. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777, 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

In a prosecution for felonious possession of stolen property, testimony of son of property owner, who allegedly furnished defendant with the property, that he was indebted to defendant (for purchase of cocaine) was properly admitted to illustrate a possible motive, and its probative value substantially out-weighed the danger of unfair prejudice against defendant. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).

In capital murder trial for the murder of a 10-year-old girl, G.S. 8C-1, Rule 403 and subsection (b) of this rule did not require the exclusion of evidence concerning an earlier incident when defendant had masturbated in the presence of a three-year-old girl. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48, 1990 N.C. LEXIS 119 (1990), writ denied, 421 S.E.2d 360, 1992 N.C. LEXIS 569 (1992).

Despite severance of defendant’s trials for murder of two sisters two years apart, under subsection (b) of this rule, trial court properly allowed evidence of defendant’s attitude towards first victim prior to her disappearance, the facts of her disappearance, the discovery of her remains near the site where her sister, the second victim’s, body was discovered, and a description of her remains in trial for the second murder. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

In a prosecution for sale of LSD and cocaine under G.S. 90-95, the State’s introduction of evidence of defendant’s marijuana use and possession was properly introduced in an attempt to show that defendant had a predisposition to commit these crimes and was, therefore, not entrapped. State v. Goldman, 97 N.C. App. 589, 389 S.E.2d 281, 1990 N.C. App. LEXIS 219 (1990).

In trial for first degree burglary and first degree rape, circumstantial evidence that defendant was the perpetrator of a rape committed five months earlier, which included both fingerprint evidence and pattern of perpetration similar to those of the crime charged demonstrated a potent, logical pertinence to the question of the assailant’s identity in the offense on trial; thus, under the circumstances of the crime charged and those of the offense admitted, for the purpose of proving identity under subsection (b) of this rule, the trial court did not err in admitting evidence of the other, similar offense, which shared strong circumstantial indicia that defendant had been the perpetrator. State v. Jeter, 326 N.C. 457, 389 S.E.2d 805, 1990 N.C. LEXIS 161 (1990).

Evidence of prior sex offenses held admissible in trial for second-degree rape and sexual activity by a substitute parent, see State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169, 1990 N.C. App. LEXIS 312 (1990), rev'd, 330 N.C. 808, 412 S.E.2d 883, 1992 N.C. LEXIS 66 (1992).

Where police found defendant in possession of both marijuana and LSD at the time of arrest, but defendant was acquitted on charges of misdemeanor possession of marijuana, evidence introduced at trial for possession of LSD of defendant’s marijuana possession served the purpose of establishing the chain of circumstances leading up to his arrest for possession of LSD, and section (b) of this rule did not require its exclusion as evidence probative only of defendant’s propensity to possess illegal drugs. State v. Agee, 326 N.C. 542, 391 S.E.2d 171, 1990 N.C. LEXIS 244 (1990).

The court did not err in allowing testimony that a murder defendant had given drugs to a third person who suffered an overdose from those drugs, even though the testimony presented evidence of other crimes; the testimony showed that defendant knew that the drugs he gave to the victim were extremely dangerous. State v. Liner, 98 N.C. App. 600, 391 S.E.2d 820, 1990 N.C. App. LEXIS 445 (1990).

The court properly admitted evidence that a defendant accused of soliciting the murder of his wife had solicited an undercover agent to murder his wife 11 months after the solicitation for which he was on trial; the evidence of the subsequent solicitation showed knowledge, modus operandi or common scheme or plan, and continuing offense. State v. Strickland, 98 N.C. App. 693, 391 S.E.2d 829, 1990 N.C. App. LEXIS 439 (1990).

In trial for obtaining money by false pretenses in which insurance agent was charged with turning in fictitious applications to receive commissions, admission into evidence of information contained in defendant’s confession concerning other allegedly false applications submitted by defendant and trial court’s instruction to jury on these prior bad acts did not constitute error. State v. Melvin, 99 N.C. App. 16, 392 S.E.2d 740, 1990 N.C. App. LEXIS 484 (1990).

Defendant’s prior sex offenses were sufficiently similar to the crimes charged to be admitted for the purpose of showing defendant’s plan, scheme, system, or design of forcing unconsenting female acquaintances into his basement for the purpose of gratifying his sexual desires. State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645, 1990 N.C. App. LEXIS 1211 (1990).

During murder prosecution, where victim was a young woman, rebuttal testimony by a woman previously assaulted by defendant, concerning the prior assault, was admissible to clarify defendant’s admission that he “beat this girl,” as the jury reasonably could infer in light of the witness’ testimony, that defendant, in a “hysterical state” shortly after an aggressive sexual encounter with the victim, was referring to the victim rather than the witness when he made his admission. State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474, 1991 N.C. LEXIS 325 (1991).

Evidence concerning two previous insurance claims made by defendant on other stores owned by her after purchasing theft policies are relevant insofar as they tend to show intent, absence of mistake and a pattern by which defendant made and then exaggerated claims resulting from commercial burglary under former G.S. 14-214 (repealed). These prior instances are within five years of the present claim, exhibit a distinctive modus operandi, and are relevant under Rule 404(b). State v. Carroll, 101 N.C. App. 691, 401 S.E.2d 114, 1991 N.C. App. LEXIS 138 (1991).

In case in which defendant was convicted of second degree sexual offense and first degree burglary, evidence that defendant committed a similar break-in and sexual offense approximately one month earlier, about two blocks from victim’s house was admissible under subsection (b) of this rule, to show intent, identity, common scheme, plan or design, and under G.S. 8C-1, Rule 403 in that the probative value of the evidence substantially outweighed the danger of unfair prejudice to defendant’s case and the court’s charge to the jury correctly stated the limited purpose of the evidence. State v. Whitaker, 103 N.C. App. 386, 405 S.E.2d 911, 1991 N.C. App. LEXIS 760 (1991).

In a trial for assault with a deadly weapon in which defendant claimed self-defense, the trial court did not err in admitting evidence that prior to wounding the victim, defendant placed a gun to the head of a fourteen year old boy and questioned him regarding stolen cocaine. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322, 1991 N.C. App. LEXIS 1015 (1991).

Where evidence of defendant’s pending driving while impaired charge was evidence of malice to support a second degree murder charge, the trial court properly admitted such evidence pursuant to subsection (b) of this rule, since the evidence was not submitted to show defendant’s propensity to commit the crime, but to show the requisite mental state for a conviction of second degree murder. State v. Byers, 105 N.C. App. 377, 413 S.E.2d 586, 1992 N.C. App. LEXIS 238 (1992).

In a trial for sexual abuse of a child, the trial court did not abuse its discretion by allowing the State to introduce the defendant’s statements to the Department of Social Services (DSS) about his prior acts of sexual abuse of a different child in an unrelated case where the defendant “opened the door” to the matter by cross-examining the DSS witness about DSS files containing the statement. Although the State did not reveal the statement in response to the defendant’s motion under G.S. 15A-903, neither did the State attempt to use the statement prior to defendant’s questions of the DSS witness. State v. Moore, 103 N.C. App. 87, 404 S.E.2d 695, 1991 N.C. App. LEXIS 711 (1991).

Evidence of the circumstances surrounding the death of defendant’s first husband 10 years previously was admissible under this rule as evidence of intent, plan, preparation, or absence of accident in capital murder trial for the death of her second husband. State v. Stager, 329 N.C. 278, 406 S.E.2d 876, 1991 N.C. LEXIS 522 (1991).

In malpractice action brought against therapist who had sexual relationship with plaintiff client, testimony of three prior relationships between defendant and his patients was admissible under subsection (b) of this rule. MacClements v. LaFone, 104 N.C. App. 179, 408 S.E.2d 878, 1991 N.C. App. LEXIS 998 (1991).

Testimony about defendant’s frequent arguments with, violent acts toward, separations from, reconciliations with, and threats to, his wife were admissible under subsection (b) of this rule to prove issues defendant disputed in a trial for her murder, namely, lack of accident, intent, malice, premeditation and deliberation—notwithstanding that some of the incidents dated back to the beginning of the marriage. State v. Syriani, 333 N.C. 350, 428 S.E.2d 118, 1993 N.C. LEXIS 90, cert. denied, 510 U.S. 948, 114 S. Ct. 392, 126 L. Ed. 2d 341, 1993 U.S. LEXIS 6750 (1993).

Where defendant was tried for the first-degree murder of her husband, evidence of her affair with a co-conspirator was highly probative of her motive for wanting her husband murdered, and evidence of the defendant’s theft of money and credit cards, coupled with evidence of her drug problems, tended to show that the defendant needed money which she stood to gain from the insurance proceeds due upon her husband’s death; therefore, the trial court did not err in admitting the evidence. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58, 1992 N.C. LEXIS 585 (1992), cert. denied, 513 U.S. 1089, 115 S. Ct. 749, 130 L. Ed. 2d 649, 1995 U.S. LEXIS 269 (1995).

Where a statement regarding a prior sex act, rather than pertaining exclusively to defendant’s character, was relevant to lend credibility to the State’s confession, the evidence was admissible under section (b) of this rule. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95, 1992 N.C. LEXIS 670 (1992), overruled, State v. Lynch, 334 N.C. 402, 432 S.E.2d 349, 1993 N.C. LEXIS 337 (1993).

Where the State’s evidence showed that in both 1967 and in 1990 defendant gained the trust of his victims, lured them into an automobile and then took them to a different location where they were sexually assaulted, the similarities justified admitting the evidence of prior crimes to prove modus operandi and intent; furthermore, since the 1967 rape was also admissible on the question of consent, it was not so remote as to have lost its probative value. State v. Sneeden, 108 N.C. App. 506, 424 S.E.2d 449, 1993 N.C. App. LEXIS 86 (1993), aff'd, 336 N.C. 482, 444 S.E.2d 218, 1994 N.C. LEXIS 309 (1994).

Where defendant had poisoned two other men with arsenic, given the similarities between the crime charged and the other crimes presented by the State, the evidence of the other offenses was relevant as evidence tending to prove modus operandi, motive, opportunity, intent and identity of defendant as the perpetrator. State v. Moore, 335 N.C. 567, 440 S.E.2d 797, 1994 N.C. LEXIS 104, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174, 1994 U.S. LEXIS 6701 (1994).

Evidence that one month prior to the alleged rape, defendant failed to return the victim’s car, stole some money, broke into her home, and was arrested was admissible as a part of the history of the event which served to enhance the natural development of the facts. State v. Jenkins, 115 N.C. App. 520, 445 S.E.2d 622, 1994 N.C. App. LEXIS 715, writ denied, 337 N.C. 804, 449 S.E.2d 752, 1994 N.C. LEXIS 604 (1994).

Testimony regarding prior conviction was admissible under subsection (b) and was not precluded under Rule 609; therefore, the trial court did not err in admitting it and there was no plain error. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, 1994 N.C. LEXIS 302, cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429, 1994 U.S. LEXIS 8123 (1994).

Where evidence of defendant’s prior assault on the victim tended to show malice, the evidence was thus relevant to an issue other than defendant’s character and was properly admitted. State v. Bryant, 337 N.C. 298, 446 S.E.2d 71, 1994 N.C. LEXIS 421 (1994).

In a prosecution for first-degree murder, first-degree rape, and first-degree sexual assault, evidence of an attack on a prior victim was properly admitted. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

Testimony was allowed to show that defendant had a metal pipe in his bedroom approximately one month prior to the death of the victim since the evidence tended to show that the victim was killed by the use of a blunt object, such as a pipe, and since defendant’s confession indicated that he had thrown a pipe away prior to the victim’s death. State v. Weathers, 339 N.C. 441, 451 S.E.2d 266, 1994 N.C. LEXIS 734 (1994).

In a prosecution for murder, testimony that a witness saw defendant dancing with the victim and that the witness called the police was relevant and properly admitted as evidence of defendant’s character. Also, evidence that witness called the police because he recognized defendant as being with the victim only after seeing on television that defendant had been charged with another murder was not irrelevant, inflammatory, and improperly prejudicial. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

In a murder prosecution, evidence of a prior murder was properly admitted by the trial court to show identity, plan, and the existence of a common modus operandi between the two murders. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

Where in both robbery and the crime committed against the victims, there were at least two individuals involved who incapacitated the victims by pulling their clothing down around their elbows and hands, and at least one person was robbed during both events and the evidence tended to show that defendant punched robbery victim in the eye during the robbery and that victim’s body was found to have areas of abrasion and bruising on his face, that the similar acts and the close proximity of time in both the robbery and the murders tend to indicate that the same person was involved in both crimes. State v. Goode, 341 N.C. 513, 461 S.E.2d 631, 1995 N.C. LEXIS 415 (1995).

Proffered testimony of defense witness that would have taken the form of an opinion, because it illuminated a pertinent trait of defendant’s character, should have been admitted; the testimony did not constitute hearsay and would have revealed a character trait of defendant that was relevant to rebut the State’s evidence which raised the implication that defendant declined to swear to his innocence because he knew he was guilty. State v. Powell, 340 N.C. 674, 459 S.E.2d 219, 1995 N.C. LEXIS 388 (1995), cert. denied, 516 U.S. 1060, 116 S. Ct. 739, 133 L. Ed. 2d 688, 1996 U.S. LEXIS 275 (1996).

Evidence that defendant was arrested for carrying a concealed weapon in connection with the seizure of handgun was relevant to show defendant’s possession of the murder weapon and the circumstances under which the police obtained this weapon, and the trial court did not err in overruling defendant’s objection to the admission of evidence that defendant was arrested for carrying a concealed weapon at trial of defendant for murder. State v. Williams, 341 N.C. 1, 459 S.E.2d 208, 1995 N.C. LEXIS 384 (1995), cert. denied, 516 U.S. 1128, 116 S. Ct. 945, 133 L. Ed. 2d 870, 1996 U.S. LEXIS 1181 (1996), writ denied, 762 S.E.2d 449, 2014 N.C. LEXIS 667 (2014).

Evidence that defendant was firing the gun in question shortly before events at mobile home park where four-year-old girl was killed was admissible to prove defendant’s identity as the person who fired the stray 9mm bullet that killed her. State v. Burton, 119 N.C. App. 625, 460 S.E.2d 181, 1995 N.C. App. LEXIS 617 (1995).

Evidence that four-year-old victim, who died from strangulation on a plastic bag, suffered from a severe skull fracture and serious burns shortly before his death was relevant to the jury’s determination of whether defendant was criminally negligent; evidence that during the time victim was home under defendant’s sole supervision, he obtained matches and ignited a can of gasoline, resulting in severe burns on his leg and ankle, was relevant to the determination of whether defendant had a pattern of reckless or careless supervision of the child. The fact that the child suffered a severe skull fracture during the same time period and the fact that defendant wrapped the child’s burns in plastic wrap, in spite of his alleged habit of putting the plastic in his mouth and her knowledge that the plastic could hurt him, were likewise relevant to the issue of defendant’s criminal negligence. State v. White, 340 N.C. 264, 457 S.E.2d 841, 1995 N.C. LEXIS 260, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436, 1995 U.S. LEXIS 7941 (1995).

From evidence that defendant continued to cover four-year-old victim’s burns with plastic wrap even though she told a neighbor she knew he liked to chew on it and it could hurt him, the jury could reasonably infer that defendant was setting the stage for the victim to strangle to death on a piece of plastic, either by accident or with her assistance; this evidence was relevant and admissible as proof of defendant’s preparation and planning for the commission of this crime and that the victim’s death was not accidental. State v. White, 340 N.C. 264, 457 S.E.2d 841, 1995 N.C. LEXIS 260, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436, 1995 U.S. LEXIS 7941 (1995).

Evidence that property owners made renovations in bad faith and for the purpose of enhancing their damages was relevant and competent evidence for a jury to consider in the determination of the value of the property at the time of the taking. DOT v. Coleman, 127 N.C. App. 342, 489 S.E.2d 187, 1997 N.C. App. LEXIS 870 (1997).

Where defendant and his stepson kidnapped two boys and put them in the trunk of a car while they murdered the boys father and then murdered the two boys, evidence regarding the murder of the father was so intertwined with evidence of the murder of the boys that it was admissible and was not an abuse of discretion. State v. Sidden, 347 N.C. 218, 491 S.E.2d 225, 1997 N.C. LEXIS 648 (1997), cert. denied, 523 U.S. 1097, 118 S. Ct. 1583, 140 L. Ed. 2d 797, 1998 U.S. LEXIS 2875 (1998).

Convictions for driving under the influence that were more than 10 years old were admissible in a second degree murder prosecution, where the evidence was relevant to show malice in that the defendant was driving under the influence, was without a license, and was speeding when he struck another car, killing the driver and injuring her daughters, and the court gave the jury a limiting instruction concerning the purpose for which contested evidence could be considered. State v. Grice, 131 N.C. App. 48, 505 S.E.2d 166, 1998 N.C. App. LEXIS 1234 (1998).

Evidence of the defendant’s acts of violence toward his former girlfriend were admissible in his prosecution for the murder of the girlfriend’s grandmother and the grandmother’s friend, where evidence showing that the defendant tried to control the girlfriend to the point of assaulting her, kidnapping her, tying her to the bed, and threatening to kill her family members pertained to the chain of events explaining the context, motive, and set-up of the crime. State v. White, 349 N.C. 535, 508 S.E.2d 253, 1998 N.C. LEXIS 850 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779, 1999 U.S. LEXIS 4288 (1999).

Other crimes evidence was admissible on the issue of identity in a capital murder trial, where a witness testified that the defendant had participated in two bank robberies with the witness during the two months before the robbery urder for which the defendant was being tried, and the testimony established that the defendant drove his white car in bank robberies and a white car was seen outside the jewelry store on the day of the murder, the defendant’s sawed-off shotgun and ski mask were used in the prior bank robberies and the murderer wore a ski mask and carried a sawed off shotgun, and all the robberies were during business hours in small towns surrounding a larger city. State v. Hoffman, 349 N.C. 167, 505 S.E.2d 80, 1998 N.C. LEXIS 561 (1998), cert. denied, 526 U.S. 1053, 119 S. Ct. 1362, 143 L. Ed. 2d 522, 1999 U.S. LEXIS 2399 (1999).

In a prosecution for murder, the trial court did not err when it allowed the admission of evidence relating to the defendant’s prejudice against Jewish people and homosexuals since such evidence showed the defendant’s skinhead beliefs and was relevant to show the defendant’s motive and intent when he killed two black people. State v. Burmeister, 131 N.C. App. 190, 506 S.E.2d 278, 1998 N.C. App. LEXIS 1309 (1998).

Photographs were admissible in a capital murder case over an irrelevancy objection, where the photographs showing empty beer cans and cigarette butts in a corn field supported the testimony of a companion of the murder victim that the defendant lured him to the cornfield and tried to kill him after they drank beer and smoked cigarettes, as the photographs supported the inference that this also happened to the murder victim. State v. Call, 349 N.C. 382, 508 S.E.2d 496, 1998 N.C. LEXIS 848 (1998).

Evidence that the capital murder defendant took his former girlfriend away from a cookout and fired a shotgun when members of her family came to check on her safety was admissible to show identity and the motive of retaliation for the girlfriend’s resistance to his forceful control in the defendant’s prosecution for the murder of the girlfriend’s grandmother and the grandmother’s companion. State v. White, 349 N.C. 535, 508 S.E.2d 253, 1998 N.C. LEXIS 850 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779, 1999 U.S. LEXIS 4288 (1999).

Evidence of similar circumstances surrounding the death of the defendant’s second wife were admissible in his prosecution for the murder of his first wife to show that the death was a homicide and not an accident, where the evidence was that both alleged victims were married to the defendant, that both died in the home they shared with the defendant and he was home at the time, that the defendant was the last person to see the victims alive and was performing CPR on the victim when emergency personnel arrived, that one victim died in or around a bathtub and the other in a hot tub, that the defendant stated in both cases that the dead women had drinking problems and had been drinking, that both had similar marks and injuries, and that insurance money was involved in both incidents. State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796, 1998 N.C. App. LEXIS 1164 (1998).

Evidence that defendant had been convicted in the shooting death of his first wife was properly argued to the jury as making more incredulous his claim of accident in the shooting death of his second wife, particularly as defendant had made incriminating remarks regarding his role in the death of his first wife to threaten his second one. State v. Murillo, 349 N.C. 573, 509 S.E.2d 752, 1998 N.C. LEXIS 851 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 103, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5310 (1999).

The defendant’s previous traffic violations were relevant and admissible in his second-degree murder prosecution arising from a traffic accident to show malice based on defendant’s “depraved heart” on the night that he struck the two victims’ vehicle while intoxicated and while rounding a sharp curve at a speed at least 40 mph over the speed limit. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441, 1999 N.C. App. LEXIS 193 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299, 2000 N.C. LEXIS 239 (2000).

The murder defendant’s statement that he was going to have to “cap someone” if his employer did not stop garnishing his wages was not excludable as evidence of a prior bad act. State v. White, 131 N.C. App. 734, 509 S.E.2d 462, 1998 N.C. App. LEXIS 1547 (1998).

Evidence of a prior crime was similar to the charged crime so as to be admissible to prove identity, where both crimes involved cutting a hole in the roof of a department store and removing large amounts of jewelry from display counters, and the previous crime had occurred fewer than three years earlier. State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80, 1999 N.C. App. LEXIS 111 (1999).

Evidence that the defendant previously had punished her children by beating them with a belt and/or biting them was admissible in her prosecution for the murder of a two-year old child and felonious child abuse to establish the identity of the person who committed the crime, a plan, and the absence of accident. In re Eldridge, 350 N.C. 152, 513 S.E.2d 296 (1999).

The defendant’s comment to witness about having gotten in trouble was admissible where it was not presented in a vacuum, but was part of a narrative that justified a police officer’s initial contact with defendant, clarified the witness’ identification of defendant after the shooting, and explained why an incorrect name was placed on certain documentation in the case. State v. Riley, 137 N.C. App. 403, 528 S.E.2d 590, 2000 N.C. App. LEXIS 411, cert. denied, 352 N.C. 596, 545 S.E.2d 217, 2000 N.C. LEXIS 664 (2000).

Exception under subsection (b) of this rule applied to witnesses’ repetition of defendant’s statements relating to recent burglaries at home in question, showing proof of opportunity, preparation, knowledge, identity, and absence of mistake, entrapment, or accident, proximate time, as well as statements regarding victim’s demeanor after rape. State v. Campbell, 133 N.C. App. 531, 515 S.E.2d 732, 1999 N.C. App. LEXIS 619 (1999).

Where evidence surrounding two robberies, as well as the circumstances immediately preceding and following those robberies, was relevant to facts other than the defendant’s propensity to commit the robbery and murder at issue, the trial court correctly allowed its inclusion. State v. Cheek, 351 N.C. 48, 520 S.E.2d 545, 1999 N.C. LEXIS 1158 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965, 2000 U.S. LEXIS 4217 (2000).

Testimony of fourth sister regarding sexual molestation by defendant was admissible in case involving sexual molestation of three other sisters to show a common plan or scheme. State v. Owens, 135 N.C. App. 456, 520 S.E.2d 590, 1999 N.C. App. LEXIS 1145 (1999).

The admission of statements in a letter in which defendant urged his girlfriend to divorce her estranged husband and made threatening statements towards him were clearly relevant as an admission with respect to victim’s death and also to show defendant’s deliberate intent to kill. State v. Perez, 135 N.C. App. 543, 522 S.E.2d 102, 1999 N.C. App. LEXIS 1181 (1999).

Evidence that defendant lied in order to have child support for his three children terminated and that the Department of Social Services planned to have said support reinstated was not admitted to show bad character but was relevant to show motive for murder and attempted murders, and to show the particular circumstances leading up to them. State v. Smith, 351 N.C. 251, 524 S.E.2d 28, 2000 N.C. LEXIS 3, cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100, 2000 U.S. LEXIS 5702 (2000).

Evidence that defendant complained to a co-worker about having the Department of Social Services take over half his paycheck for child support was admissible to show motive and plan for first-degree murder of defendant’s daughter and attempted murder of defendant’s two children and their mother. State v. Smith, 351 N.C. 251, 524 S.E.2d 28, 2000 N.C. LEXIS 3, cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100, 2000 U.S. LEXIS 5702 (2000).

Admission of testimony revealing that police informant became informant as a result of being arrested for buying cocaine from defendant and promising to help catch the seller, i.e. the defendant, was proper to prove intent, a common plan or scheme, and to identify defendant. State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247, 2000 N.C. App. LEXIS 431, cert. denied, 353 N.C. 275, 546 S.E.2d 386, 2000 N.C. LEXIS 953 (2000).

Witness testimony that defendant fled when approached by law enforcement officers, including the details of the flight such as the fact that the defendant fired a weapon at the officers and was then hit with a bullet fired by one of them, was admissible to show his consciousness of guilt. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633, 2000 N.C. App. LEXIS 1266 (2000), writ denied, 353 N.C. 392, 547 S.E.2d 33, 2001 N.C. LEXIS 46 (2001).

Evidence that approximately one week before the victim’s death, defendant (1) pointed and shot a gun over his mother’s head and (2) pointed a gun at his brother and threatened to kill him was admissible to establish the “chain of circumstances” of the crime charged; these prior acts revealed not only defendant’s intensifying display of violent behavior toward his family, but also tended to show the possibility that defendant was angry with the victim for confronting him about the treatment of his family. State v. Allen, 141 N.C. App. 610, 541 S.E.2d 490, 2000 N.C. App. LEXIS 1436 (2000).

Testimony of defendant’s two former wives concerning his behavior towards them during their marriages, which tended to show that as the marriages deteriorated, defendant responded violently, was admissible at his trial for the murder of his wife. State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629, 2000 N.C. App. LEXIS 1032 (2000).

Court rejected defendant state trooper’s argument that evidence of his alleged crimes, wrongs, and acts was admitted in violation of the Rules of Evidence and his due process rights; testimony that defendant asked one witness to ride in the floor of his patrol car before the shooting, that another witness and defendant had violated or circumvented numerous automobile title transfer procedures, and that, upon searching the defendant’s patrol car, a third witness had found licenses and registrations that should have been turned over to a magistrate under highway patrol policy, was admissible to chronicle the murder and its probative value was not outweighed by the danger of prejudice. State v. Parker, 2000 N.C. App. LEXIS 1107 (N.C. Ct. App. Oct. 3, 2000), op. withdrawn, sub. op., 140 N.C. App. 169, 539 S.E.2d 656, 2000 N.C. App. LEXIS 1218 (2000).

Where two defendants were convicted of armed robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury, the trial court did not commit error in admitting testimony about the first defendant’s drug transaction, which had occurred four years before the instant crimes. State v. Holadia, 149 N.C. App. 248, 561 S.E.2d 514, 2002 N.C. App. LEXIS 221 (2002).

Evidence of violence against child’s mother was admissible to show why the mother did not take any action against defendant when he first began assaulting her son, to identify defendant, rather than the mother, as the perpetrator, and to dispel defendant’s contention that the child’s injuries were accidentally inflicted; because the evidence of prior acts of domestic violence toward the mother was offered for a purpose other than to show the propensity of defendant to commit the crime for which he was being tried, the trial court did not abuse its discretion in admitting the evidence. State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47, 2002 N.C. App. LEXIS 280 (2002).

Evidence of defendant’s conviction for second-degree murder 27 years earlier was properly admitted in defendant’s murder trial where the trial court found similarities between the two murders, and the 18 years defendant spent in prison were excluded when the trial court ruled on whether the previous crime was too remote; the probative value of the previous conviction upon the issues for which it was offered, defendant’s intent to kill and his identity as the perpetrator, far outweighed the possibility of unfair prejudice. State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574, 2002 N.C. App. LEXIS 360 (2002), cert. denied, 357 N.C. 508, 587 S.E.2d 885, 2003 N.C. LEXIS 1252 (2003).

Although defendant’s motion to suppress evidence of his prior conviction for assault with a deadly weapon was granted, the trial court did not abuse its discretion by permitting the evidence to be admitted where defendant put his character at issue by offering the testimony of two witnesses as to his peaceful nature during the time frame of the conviction. State v. Rhue, 150 N.C. App. 280, 563 S.E.2d 72, 2002 N.C. App. LEXIS 498 (2002).

When defense counsel revealed that a police detective falsely told defendant he had been caught on videotape committing two robberies, the prosecutor’s question of the detective as to whether defendant had been caught on videotape committing other robberies was not inadmissible under G.S. 8C-1, Rule 404(b). State v. Fleming, 148 N.C. App. 16, 557 S.E.2d 560, 2001 N.C. App. LEXIS 1276 (2001).

Where defendant was tried for multiple sexual assaults and two murders by strangulation, the trial court did not err in permitting defendant’s former girlfriend to testify concerning choking incidents between herself and defendant in order to show motive, plan, common scheme, and intent. State v. Williams, 355 N.C. 501, 565 S.E.2d 609, 2002 N.C. LEXIS 538 (2002), cert. denied, 537 U.S. 1125, 123 S. Ct. 894, 154 L. Ed. 2d 808, 2003 U.S. LEXIS 128 (2003).

Defendant’s conduct with two women was sufficiently similar and proximate in time to support its admission under G.S. 8C-1, N.C. R. Evid. 404(b) where defendant was charged with sexual misconduct with a 12-year-old which consisted of rubbing her breast and digitally penetrating her vagina, and a witness testified that, when she was 15 years old, defendant had sexual intercourse and performed oral sex on her without her consent. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289, 2002 N.C. App. LEXIS 973 (2002).

Evidence that defendant assaulted a jail officer while incarcerated pending trial was properly admitted in defendant’s trial for first degree murder of a police officer to rebut defendant’s assertion that defendant was not aware of the police officer’s identity and would not knowingly harm a police officer. State v. Mays, 158 N.C. App. 563, 582 S.E.2d 360, 2003 N.C. App. LEXIS 1254 (2003), cert. denied, 358 N.C. 547, 599 S.E.2d 913, 2004 N.C. LEXIS 772 (2004).

Evidence of events occurring after defendant left a patrol car was not inadmissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b) as the evidence was part of a single, continuing transaction beginning with defendant’s insertion of herself into the events at a school and continuing through her arrest; evidence of what occurred after she left the patrol car was part of the chain of events leading to defendant’s arrest and, therefore, was admissible, and the evidence of events occurring after defendant left the patrol car provided added evidentiary support for the charge of obstructing and delaying an officer. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

Admission of testimony that defendant viewed sexually explicit photos on his home computer was relevant, and any prejudice that might have been caused by allowing the jury to see the photos was addressed by the trial court’s decision not to show the photos to the jury. State v. Quinn, 166 N.C. App. 733, 603 S.E.2d 886, 2004 N.C. App. LEXIS 2025 (2004).

When defendant was charged with second-degree murder for causing another’s death by his drunk driving, his nine-year-old conviction for driving while impaired was properly admitted, under G.S. 8C-1, N.C. R. Evid. 404(b), because it showed malice, which was a proper purpose for admitting it, and the fact that it was nine years old did not render it too remote to be relevant. State v. Westbrook, 175 N.C. App. 128, 623 S.E.2d 73, 2005 N.C. App. LEXIS 2704 (2005).

Trial court did not abuse its discretion when it admitted evidence consisting of defendant’s post-Miranda statements to an officer that, inter alia, the defendant gave persons meth in exchange for work. A similar transaction with the victim was a sale under G.S. 90-95. State v. Yelton, 175 N.C. App. 349, 623 S.E.2d 594, 2006 N.C. App. LEXIS 44 (2006).

In a drug case, the testimony of a probation officer regarding defendant’s residence was admissible under G.S. 8C-1, Rule 404(b) because they evidence was only used to establish that defendant occupied a dwelling where drugs were located; moreover, the danger of unfair prejudice was outweighed by the probative value of the evidence. State v. Shine, 173 N.C. App. 699, 619 S.E.2d 895, 2005 N.C. App. LEXIS 2306 (2005).

Trial court did not abuse its discretion in admitting evidence of a prior robbery under G.S. 8C-1-404(b) because the similarities between the prior robbery and the current offense, which occurred within one week of each other, were sufficient to support a finding that the probative value of the evidence of the prior robbery was not substantially outweighed by the danger of unfair prejudice. State v. Hagans, 177 N.C. App. 17, 628 S.E.2d 776, 2006 N.C. App. LEXIS 719 (2006).

Testimony of a detective regarding defendant’s involvement in a second robbery was admissible under G.S. 8C-1-404(b), because the second robbery was sufficiently similar. State v. Jones, 176 N.C. App. 678, 627 S.E.2d 265, 2006 N.C. App. LEXIS 589 (2006).

Testimony of a State witness, made after the trial judge conducted voir dire of the witness, was properly admitted as it was relevant to show plan, modus operandi, and identity. Among other things, the testimony of the witness included a positive identification of defendant as the perpetrator of the crime against her, that the offense against her occurred within three miles of the offense against the victim, that both attacks occurred in the evening and during the hours of darkness, that the attacker was armed on each occurrence, and that the victims were similar in age and were both white females. State v. Summers, 177 N.C. App. 691, 629 S.E.2d 902, 2006 N.C. App. LEXIS 1188 (2006).

Admission of evidence of other crimes was not prejudicial where the trial court instructed the jury that the evidence was being received for limited purpose of showing defendant’s motive, opportunity, intent, and knowledge. State v. Calvino, 179 N.C. App. 219, 632 S.E.2d 839, 2006 N.C. App. LEXIS 1834 (2006).

Admission of photographs of nude women was not erroneous because they were admitted for a permissible purpose other than to show defendant’s character in conformity therewith; the photographs served to corroborate the victim’s testimony and provided evidence of a plan and preparation to engage in sexual activities with the victim. State v. Brown, 178 N.C. App. 189, 631 S.E.2d 49, 2006 N.C. App. LEXIS 1311 (2006).

In light of uncontested evidence of defendant’s prior convictions, defendant failed to show that the state’s cross-examination of defendant regarding the prior convictions as improper under G.S. 8C-1-404. State v. Mewborn, 178 N.C. App. 281, 631 S.E.2d 224, 2006 N.C. App. LEXIS 1411 (2006).

Admission of evidence of a power of attorney defendant obtained naming her as attorney in fact, personal papers and identification belonging to the victims, and the purchase of a vehicle with the power of attorney, did not violate G.S. 8C-1-404(b), as it was relevant and offered to show a common plan or scheme and the absence of mistake, and defendant failed to show that the admission of the evidence was manifestly unsupported by reason and was so arbitrary that it could not have been the result of a reasoned decision. State v. King, 178 N.C. App. 122, 630 S.E.2d 719, 2006 N.C. App. LEXIS 1307 (2006).

Contrary to defendant’s contention, testimony by the victim’s grandmother concerning the relationship between defendant and the victim’s mother was not impermissible character evidence but was relevant, factual information dealing with the dynamics of the two personalities involved; given the defense’s attempts to suggest that the mother might have been the perpetrator or that the child died from an accidental fall, the evidence was probative for a purpose other than defendant’s character. State v. Faulkner, 180 N.C. App. 499, 638 S.E.2d 18, 2006 N.C. App. LEXIS 2504 (2006).

Prior bad act evidence was properly admitted where it was relevant to show defendant’s intent because the State contended defendant shot at the car either intending to shoot the victim’s friend of believing the victim to be the passenger. State v. Christian, 180 N.C. App. 621, 638 S.E.2d 470, 2006 N.C. App. LEXIS 2518 (2006), cert. denied, 362 N.C. 178, 658 S.E.2d 658, 2008 N.C. LEXIS 88 (2008).

Defendant’s desire to avoid returning to prison constituted evidence of defendant’s motive for the traffic violations committed while fleeing the police, and thus was relevant and admissible. State v. Locklear, 180 N.C. App. 115, 636 S.E.2d 284, 2006 N.C. App. LEXIS 2248 (2006).

Testimony of the second of the victim’s daughters that defendant had thrown a record player at the victim during an argument that occurred 14 years prior to the murder was admissible because defendant opened the door to the testimony; any remoteness in time went to weight not admissibility. State v. Parmaei, 180 N.C. App. 179, 636 S.E.2d 322, 2006 N.C. App. LEXIS 2234 (2006).

Testimony of one of the victim’s daughters regarding two prior acts of violence of defendant toward the victim, one involving defendant allegedly pushing the victim in front of a moving vehicle and the other involved an attempt to strike the victim with a piece of firewood, was admissible to prove either intent to harm or an absence of mistake. State v. Parmaei, 180 N.C. App. 179, 636 S.E.2d 322, 2006 N.C. App. LEXIS 2234 (2006).

In defendant’s murder trial, the trial court did not err in admitting evidence of defendant’s bisexuality pursuant to G.S. 8C-1-404(b), as defense counsel, in the opening statement, extensively discussed defendant and the victim’s relationship and portrayed their marriage as a happy and loving one; the trial court properly found that evidence of defendant’s attempts to have sexual relations with a male escort and interest in homosexual pornography were relevant to rebut defense counsel’s opening statement. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594, 2006 N.C. App. LEXIS 1980 (2006), aff'd, 361 N.C. 587, 652 S.E.2d 216, 2007 N.C. LEXIS 1101 (2007).

Where a victim testified in defendant’s kidnapping and assault trial only after being arrested and jailed as a material witness and he stated that defendant did not threaten him personally even though others had shot up his “momma’s house” after he testified in a co-defendant’s trial, the court failed to see how such testimony constituted evidence of a prior bad act by defendant under G.S. 8C-1-404(b) and was not persuaded that even presuming error, such error would have prejudiced defendant, given other evidence presented in the case. State v. Johnson, 181 N.C. App. 287, 639 S.E.2d 78, 2007 N.C. App. LEXIS 17 (2007).

Admission of evidence that defendant hid from police under a pile of clothing was not an abuse of discretion because it showed defendant’s guilty conscience. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615, 2007 N.C. App. LEXIS 1162 (2007).

Evidence related to a prior killing was admissible because it satisfied both the similarity and temporal requirements of G.S. 8C-1-404(b); both crimes involved fatal stab wound to unarmed victim’s neck with a folding pocketknife, which occurred during an argument in the victim’s home and the relevant time between the two crimes, which actually occurred 10 years apart, was only five years because defendant was incarcerated for five of the ten years. State v. Badgett, 361 N.C. 234, 644 S.E.2d 206, 2007 N.C. LEXIS 416, cert. denied, 552 U.S. 997, 128 S. Ct. 502, 169 L. Ed. 2d 351, 2007 U.S. LEXIS 11865 (2007).

Admission into evidence of a receipt for an attempted credit card transaction and a statement made by defendant and written by a detective was proper where a limiting instruction was given to the jury to consider the evidence as tending to show a common scheme or plan. State v. Combs, 182 N.C. App. 365, 642 S.E.2d 491, 2007 N.C. App. LEXIS 696, aff'd, 361 N.C. 585, 650 S.E.2d 594, 2007 N.C. LEXIS 1005 (2007).

In a trial in which the State sought to show that defendant pressured her daughter to shoot defendant’s husband so that defendant could be with a boyfriend she met at a swingers party, the admission of sexually suggestive photographs of defendant and the boyfriend was proper under G.S. 8C-1-401, G.S. 8C-1-403, and G.S. 8C-1-404(b) because the photographs corroborated the existence of a sexual relationship between defendant and the boyfriend, the photographs illustrated the chain of events leading up to the murder, and the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516, 2007 N.C. App. LEXIS 687 (2007).

Police officer’s testimony that defendant provided fake names and possessed a fictitious identification card was admissible under G.S. 8C-1-404(b) because it was probative of defendant’s guilty knowledge and established the chain of circumstances culminating in defendant’s arrest. State v. Freeman, 185 N.C. App. 408, 648 S.E.2d 876, 2007 N.C. App. LEXIS 1805 (2007).

Trial court did not abuse its discretion in admitting defendant’s prior conviction into evidence as under the North Carolina Felony Firearms Act, specifically G.S. 14-415.1(b), records of prior convictions of any offense were admissible in evidence for the purpose of proving a violation of G.S. 14-415.1; as there was no indication that defendant agreed to stipulate to defendant’s prior felony conviction, the State had no choice but to introduce evidence of defendant’s conviction in order to prove its case as to the charge of possession of a firearm by a felon. State v. Wood, 185 N.C. App. 227, 647 S.E.2d 679, 2007 N.C. App. LEXIS 1674 (2007).

Evidence of defendant’s participation in three armed robberies two months before the subject event was admissible under G.S. 8C-1-404(b) because the fact that the firearm used by defendant in the subject offense was the same as that used during the three robberies was relevant to prove identity and supported an inference that the same person committed the earlier and the later acts. State v. Brockett, 185 N.C. App. 18, 647 S.E.2d 628, 2007 N.C. App. LEXIS 1720 (2007), writ denied, 379 N.C. 163, 863 S.E.2d 591, 2021 N.C. LEXIS 1039 (2021).

Even assuming that the prosecutor’s closing argument, which contained statements that defendant alleged were made to prove defendant’s bad character, was grossly improper, any prejudice to defendant was cured by the trial court’s instructions to the jury stating, inter alia, that the testimony of defendant’s cell mate could only be considered for the limited purpose of showing defendant’s consciousness of guilt. State v. Goss, 361 N.C. 610, 651 S.E.2d 867, 2007 N.C. LEXIS 1106 (2007), cert. denied, 555 U.S. 835, 129 S. Ct. 59, 172 L. Ed. 2d 58, 2008 U.S. LEXIS 6569 (2008).

Admission of evidence concerning the death of an old neighbor of defendant was proper because there were significant similarities between the death of the old neighbor and defendant’s wife, the victim in the instant action, and there was sufficient circumstantial evidence that defendant was involved in the prior death; the prosecution was not required to present direct evidence of defendant’s involvement in the prior death, but could present circumstantial evidence tending to support a reasonable inference that the same person committed both the earlier and later acts. State v. Peterson, 361 N.C. 587, 652 S.E.2d 216, 2007 N.C. LEXIS 1101 (2007), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L. Ed. 2d 377, 2008 U.S. LEXIS 2674 (2008).

Evidence of a later incident between defendant and a witness was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) and 403 as: (1) the later incident occurred 20 days after the incident with a victim, (2) the two incidents occurred in the early morning hours, (3) defendant told both victims that defendant’s vehicle would not start, (4) defendant told the victim defendant would let the victim live if the victim stopped struggling, and told the witness that the defendant would kill the witness if the witness made any noise, and (5) defendant tried to restrain and silence the victim and the witness, and defendant ceased defendant’s efforts when the victim and the witness forcefully resisted defendant’s advances; the prejudicial effect of the witness’s testimony did not substantially outweigh its probative value. State v. Simpson, 187 N.C. App. 424, 653 S.E.2d 249, 2007 N.C. App. LEXIS 2431 (2007).

Admission of the testimony of three witnesses that the alleged assault against each witness took place within one year of the attack on a victim, and that defendant used substantially the same method of restraining each witness during the attack, employing defendant’s greater size and strength, limiting the witness’s breathing, and making dire threats against the witness, and called each witness after the attack was not plain error under N.C. R. App. P. 10(c)(4), and was proper under G.S. 8C-1, N.C. R. Evid. 403 and 404(b). State v. Simmons, 191 N.C. App. 224, 662 S.E.2d 559, 2008 N.C. App. LEXIS 1188 (2008).

Testimony about prior acts against defendant committed against the victim was admissible, where the testimony was relevant because it made it more probable than not that defendant committed the charged crimes against the victim given defendant’s belief that the victim was cheating on defendant again, and the prior action, which also involved incidents where defendant believed the victim was cheating on defendant and which occurred less than a year earlier, were also sufficiently similar and close in time to be admitted. State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317, 2008 N.C. App. LEXIS 1815 (2008).

Evidence of prior drug sales was admissible under G.S. 8C-1, N.C. R. Evid. 403 and 404(b), as the drive-by, street-level drug sale that occurred between defendant and an undercover female officer was not a general substantive crime in and of itself, but was a modus operandi by which defendant carried out the sale or distribution of drugs. State v. Welch, 193 N.C. App. 186, 666 S.E.2d 826, 2008 N.C. App. LEXIS 1741 (2008).

Denial of defendant’s motion in limine was not plain error as there was no G.S. 8C-1, N.C. R. Evid. 404(b) violation in a witness’s testimony that a digital camera was stolen during a breaking and entering from the witness’s employer, and that the digital camera found in defendant’s camper was that camera as the testimony only tended to show that defendant possessed stolen items, not that defendant was acting in conformity with a propensity to steal, and the fact that defendant had multiple stolen items in the camper was relevant to the felonious possession of stolen goods charge under G.S. 14-72(c). State v. Patterson, 194 N.C. App. 608, 671 S.E.2d 357, 2009 N.C. App. LEXIS 24 (2009).

Testimony by defendant’s sister and the sister’s boyfriend that they were feared defendant was admissible because it was not offered as mere character evidence, but was relevant in that the fear was a product of their belief in defendant’s guilt and explained by the sister did not contact law enforcement directly or more immediately after a codefendant confessed; as such, the testimony had some tendency as circumstantial evidence to make the existence of defendant’s guilt more probable. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618, 2009 N.C. LEXIS 239 (2009).

Evidence of defendant’s prior driving while intoxicated (DWI) convictions was admissible where defendant had been convicted of DWI four times in the 16 years leading up to the subject incident, defendant had been convicted of DWI six months earlier, and thus, defendant’s driving record demonstrated a consistent and probative pattern of criminal behavior. State v. Maready, 362 N.C. 614, 669 S.E.2d 564, 2008 N.C. LEXIS 985 (2008).

Testimony concerning a prior assault on another victim was a major identity piece of evidence, relevant to showing that defendant was in possession of and fired a gun that was used in the subject murder less than 48 hours before the murder. State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453, 2009 N.C. App. LEXIS 456 (2009).

Admission of evidence that a deputy had responded to a prior domestic disturbance at defendant’s residence and went there after defendant’s mother called the deputy but was unable to be reached to return the call did not violate G.S. 8C-1, N.C. R. Evid. 404(b), because the evidence completed the picture for the jury. State v. Madures, 197 N.C. App. 682, 678 S.E.2d 361, 2009 N.C. App. LEXIS 1077 (2009).

Because, although two offenses charged as first-degree murder may have been sufficiently connected such that joinder would be permissible, pursuant to G.S. 15A-926(a) the trial court could properly decline to consolidate them for trial. Therefore, failure to consolidate the two alleged murders did not required exclusion of all evidence of the first murder, under G.S. 8C-1, N.C. R. Evid. 404(b), at defendant’s trial for the second murder. State v. Locklear, 363 N.C. 438, 681 S.E.2d 293, 2009 N.C. LEXIS 814 (2009).

Evidence of a fight in which defendant took the victim with others to an isolated location and beat him until he was lying down injured and that he attempted to intimidate a witness by angrily crushing a beer can was sufficiently similar to the charged beating and robbery, which occurred less than six months later, for admission under G.S. 8C-1, Rule 404(b). State v. Rainey, 198 N.C. App. 427, 680 S.E.2d 760, 2009 N.C. App. LEXIS 1360 (2009).

In defendant’s prosecution on a charge of obtaining by false pretenses, involving an incident where defendant told a false story to obtain money from church members, the trial court did not abuse its discretion under G.S. 8C-1, N.C. R. Evid. 404(b) by admitting evidence that defendant had done something similar at other area churches. State v. Twitty, 212 N.C. App. 100, 710 S.E.2d 421, 2011 N.C. App. LEXIS 952 (2011).

Evidence showing of defendant’s prior flight from police pursuit in which defendant’s accomplice was killed by police officers was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) as evidence of implied malice for a second-degree murder charge; the evidence showed defendant’s knowledge that flight from police could result in death, and Rule 404(b) specifically allowed evidence of prior acts to show knowledge. State v. Pierce, 216 N.C. App. 377, 718 S.E.2d 648, 2011 N.C. App. LEXIS 2234 (2011), cert. denied, 568 U.S. 922, 133 S. Ct. 378, 184 L. Ed. 2d 223, 2012 U.S. LEXIS 7628 (2012).

Evidence that defendant and the two other occupants of his vehicle stole several pounds of marijuana just before defendant fled from a corporal was properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b) to show defendant’s motive in fleeing to elude arrest—to avoid being pulled over with several one-pound bags of marijuana in his vehicle. State v. Pierce, 216 N.C. App. 377, 718 S.E.2d 648, 2011 N.C. App. LEXIS 2234 (2011), cert. denied, 568 U.S. 922, 133 S. Ct. 378, 184 L. Ed. 2d 223, 2012 U.S. LEXIS 7628 (2012).

Evidence of defendant’s financial hardship and misconduct in the years prior to the death of the victim, defendant’s wife, was properly admitted to show motive. State v. Britt, 217 N.C. App. 309, 718 S.E.2d 725, 2011 N.C. App. LEXIS 2428 (2011).

Testimony concerning the hierarchy of gang structure and tending to show second defendant’s position in the local gang hierarchy was relevant to the extortion-related charges, as it helped explain second defendant’s reason for believing he could induce another individual to confess to a robbery and explained why the other individual turned himself in and confess when he was not a suspect in the crime. State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299, 2012 N.C. App. LEXIS 203 (2012).

Evidence defendant was seen outside a house where the gun, socks, and tire tool were found following a break-in was admissible to corroborate the testimony of several other witnesses who testified to defendant’s actions and was relevant to show defendant’s motive, opportunity, and knowledge; specifically that it gave defendant motive to aid another in hiding the murder weapon because the other had incriminating evidence against defendant in having been involved in a break-in. State v. Schiro, 219 N.C. App. 105, 723 S.E.2d 134, 2012 N.C. App. LEXIS 245 (2012).

Evidence of defendant’s conduct with another young female, occurring around same time as alleged offenses, was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), because it was relevant to crucial elements in the charged offenses, the ages of the victim and of defendant, and its probative value was not outweighed by the danger of unfair prejudice. State v. Houseright, 220 N.C. App. 495, 725 S.E.2d 445, 2012 N.C. App. LEXIS 657 (2012).

Evidence of out-of-state break-in at the victim’s apartment, for which defendant was not investigated, was admissible under G.S. 8C-1, N.C. R. Evid. 404(b), because the subject evidence established a connection between the three incidents, including the victim as the intended victim in all three incidents, furniture was destroyed, liquid was poured on the floors and the victim’s personal items, and the items stolen were personal items, and the evidence was admitted as proof of defendant’s common plan or scheme, his identity, and his motive. State v. Adams, 220 N.C. App. 319, 727 S.E.2d 577, 2012 N.C. App. LEXIS 580 (2012).

Admission of evidence of a prior altercation involving defendant and a prior name-calling incident involving defendant and the victim did not amount to plain error, because the prior incidents supported the victim’s testimony that she did not report the rape because she was afraid of defendant, and the alleged “name-calling,” where the State argued that the situation was no different that a hunter in a field, a beast in the field stalking a prey, was not name-calling but merely an analogy used by the State to explain its theory of the crime. State v. Foust, 220 N.C. App. 63, 724 S.E.2d 154, 2012 N.C. App. LEXIS 512 (2012).

In a prosecution for indecent liberties with a child and first-degree sexual offense, evidence of defendant’s prior sexual acts with a minor was admissible because (1) the acts were admitted for the permissible purpose of showing modus operandi, and (2) the acts had key similarities to the crimes charged, as the acts’ victim’s age was similar to the crimes’ victim, the acts’ location was similar to that of the crimes, and the acts were committed in a manner similar to that alleged for the crimes. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012).

In a prosecution for indecent liberties with a child and first-degree sexual offense, temporal remoteness did not bar the admission of evidence of defendant’s prior sexual acts with a minor because the remoteness was not so significant as to make the prior acts irrelevant as to the State’s theory of modus operandi, which the prior acts were offered to support, so temporal proximity was a question of evidentiary weight for the jury to decide. State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156, 2012 N.C. LEXIS 409 (2012).

The trial court did not err in admitting evidence of defendant’s prior bad acts under G.S. 8C-1, N.C. R. Evid. 404(b), because the prior acts were sufficiently similar to the charged offense in that they showed a progression from inappropriate touching to sexual intercourse, occurred where defendant was living at the time, involved prepubescent girls, and also involved members of defendant’s family. The appellate court also concluded that the prior acts were not too remote in time, noting that the gaps in time were reasonably explained. State v. Barnett, 223 N.C. App. 450, 734 S.E.2d 130, 2012 N.C. App. LEXIS 1302 (2012).

Defendant’s statement that he touched 5 to 10 other boys was an admission under G.S. 8C-1, N.C. R. Evid. 801(d)(A) and 404(b) to show his identity as the perpetrator and his intent as the facts were similar to the charges of touching two young boys here; defendant connected the acts as a continuous pattern by stating that he had a problem with touching young boys, and had had this problem since he was young, and the evidence was properly allowed under G.S. 8C-1, N.C. R. Evid. 403. State v. Graham, 223 N.C. App. 150, 733 S.E.2d 100, 2012 N.C. App. LEXIS 1195 (2012).

Testimony by a witness for the State that police searched for defendant at a particular location because he was involved in a previous domestic incident there did not violate G.S. 8C-1, N.C. R. Evid. 404, because the testimony was not admitted to prove conformity but to explain why officers searched for defendant at the particular location. State v. Anderson, 222 N.C. App. 138, 730 S.E.2d 262, 2012 N.C. App. LEXIS 954 (2012).

In a prosecution for uttering a forged instrument (G.S. 14-120) and attempting to obtain property by false pretenses (G.S. 14-100), the trial court did not err in admitting a second forged check under G.S. 8C-1, N.C. R. Evid. 404(b), as it was relevant to undercut defendant’s explanations for possessing the check at issue and establish his intent to defraud, and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under G.S. 8C-1, N.C. R. Evid. 403. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163, 2012 N.C. App. LEXIS 515 (2012), writ denied, 367 N.C. 790, 766 S.E.2d 670, 2014 N.C. LEXIS 1139 (2014).

Evidence of defendant’s prior acts against his estranged wife were properly admitted under G.S. 8C-1, N.C. R. Evid. 404(b), because they showed defendant’s intent to perpetrate a hoax by use of a false bomb and because those incidents were part of the chain of events leading up to the crime, necessary to complete the story of the crime for the jury. The challenged evidence tended to show that defendant had an ongoing objective of scaring his estranged wife by suggesting he would physically harm her and others around her. State v. Golden, 224 N.C. App. 136, 735 S.E.2d 425, 2012 N.C. App. LEXIS 1363 (2012).

Opinion evidence of defendant’s friend as to defendant’s character trait of being trusting of others was improperly excluded since the evidence was pertinent to whether she willfully attempted to evade paying taxes where she claimed that she believed the representations made to her by the sellers on a form that the purported tax exemption was legal and thus she had a good faith belief that she was exempt from having to pay State income tax, and the State claimed that her actions were undertaken as a tax protestor. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382, 2013 N.C. App. LEXIS 894 (2013).

Admission of evidence of uncharged allegedly sexual conduct involving the victim and her sister was not error, as it established the time period during which defendant lived with the family and the circumstances surrounding defendant’s move. State v. May, 230 N.C. App. 366, 749 S.E.2d 483, 2013 N.C. App. LEXIS 1140 (2013), rev'd, 368 N.C. 112, 772 S.E.2d 458, 2015 N.C. LEXIS 456 (2015).

Trial court did not abuse its discretion in admitting prior bad acts evidence, as the prior acts and offenses charged were similar in that defendant had access to the girls, the girls were all relatively young, and the touchings occurred while defendant was alone with the girls. State v. Walston, 229 N.C. App. 141, 747 S.E.2d 720, 2013 N.C. App. LEXIS 879 (2013), rev'd, 367 N.C. 721, 766 S.E.2d 312, 2014 N.C. LEXIS 953 (2014).

Trial court properly admitted as evidence of malice testimony regarding an incident two months earlier on the same road in which defendant’s impaired driving badly frightened his female passenger who forced him to pull over his car and who expressed substantial concern about his driving while impaired. State v. Grooms, 230 N.C. App. 56, 748 S.E.2d 162, 2013 N.C. App. LEXIS 1016 (2013).

Admission of testimony by a teenager who willing had sex with defendant was not an abuse of discretion, as defendant sexually assaulted the teen, each in the same car, defendant took both to a motel, and defendant asked both to have photos and videos made, making the teen’s interaction with defendant sufficiently similar. State v. Rayfield, 231 N.C. App. 632, 752 S.E.2d 745, 2014 N.C. App. LEXIS 22 (2014).

Evidence defendant set up a webcam in the bedroom of a teenage neighbor and videotaped her dancing in her pajamas was similar in nature to the charges and served to demonstrate defendant’s intent to obtain sexual images of minors and an absence of mistake or accident. State v. Williams, 232 N.C. App. 152, 754 S.E.2d 418, 2014 N.C. App. LEXIS 56 (2014).

Evidence of defendant’s misappropriation of funds from a church was properly admitted, as it occurred at about the same time and defendant held a similar position of trust in each setting which allowed her access to funds. State v. Parker, 233 N.C. App. 577, 756 S.E.2d 122, 2014 N.C. App. LEXIS 364 (2014).

Trial court did not err by admitting a forensic psychologist’s report and testimony because the probative value of the report and testimony substantially outweighed the potential prejudicial effect to defendant; the psychologist’s reflections of defendant’s character, which comprised a small portion of the report, were not admitted for the truth of the matters asserted but were offered to demonstrate how the resulting recommendations were relevant to defendant’s state of mind; State v. Hayes, 239 N.C. App. 539, 768 S.E.2d 636, 2015 N.C. App. LEXIS 139 (2015).

Evidence of previous instances of sexual abuse was properly admitted under this section, despite the fact that the prior instances occurred 10 to 20 years prior to trial, because the time lapse between the instances of sexual misconduct could be explained by defendant’s incarceration and lack of access to a victim. State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Testimony by others offered to show that defendant would stop and approach an elderly victim at his or her house, claim the victim needed roof repairs, inspect the roof and claim that it needed extensive repairs, and request immediate payment before beginning the repairs was admissible. State v. Barker, 240 N.C. App. 224, 770 S.E.2d 142, 2015 N.C. App. LEXIS 369 (2015).

Trial court did not abuse its discretion in admitting testimony from a child witness about prior conduct, because it tended to prove defendant had a common scheme or plan to have intercourse with young female children who were asleep at night, while he was a guest in a home, and he offered a bribe to his victims to buy their silence. State v. Spinks, 256 N.C. App. 596, 808 S.E.2d 350, 2017 N.C. App. LEXIS 991 (2017).

Officer’s testimony that the officer observed defendant leaving a house being investigated for drugs and defendant had a bad reputation in the neighborhood was admissible because (1) the testimony showed the officer’s familiarity with defendant and explained why the officer paid attention to defendant, which was relevant to the officer’s identification of defendant, (2) the unnecessary drug reference did not affect the jury’s verdict, and (3) the probative value of the identification outweighed any undue prejudice. State v. Weldon, 258 N.C. App. 150, 811 S.E.2d 683, 2018 N.C. App. LEXIS 176 (2018).

Defendant failed to show that the trial court plainly erred in defendant’s trial for misdemeanor stalking by admitting challenged portions of the testimony of defendant’s ex-paramour that defendant had assaulted the ex-paramour in the past and that the ex-paramour was afraid of defendant because the challenged portions of the ex-paramour’s testimony were relevant not only to show defendant’s propensity to commit the offense of stalking, but also established that the victim was in reasonable fear of defendant. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397, 2018 N.C. App. LEXIS 808 (2018).

During defendant’s first-degree murder trial, the trial court did not err by admitting the testimony of two witnesses’ regarding prior abusive relationships they had with defendant because the assaults on the witnesses were similar to the ones perpetrated on the victim, including comparative location similarities and defendant stabbed them. State v. Enoch, 261 N.C. App. 474, 820 S.E.2d 543, 2018 N.C. App. LEXIS 939 (2018).

Trial court did not err by admitting photos obtained from defendant’s cell phone because the photos of guns were not indicative of bad acts or bad character and hand signals by two men in the photo with car did not indicate gang affiliation in any way. State v. Dixon, 261 N.C. App. 676, 821 S.E.2d 232, 2018 N.C. App. LEXIS 1003 (2018).

During defendant’s trial for first-degree sex offense with a child, the trial court did not err by admitting evidence of two prior incidents because those incidents and the instant offense each involved the same victim, the same specific alleged mode of penetration, and occurred while the victim was under defendant’s supervision, and therefore the prior incidents were relevant to show that the instant offense was part of a common scheme or plan. The trial court did not err by finding that the prior incidents were more probative than prejudicial, it gave a limiting instruction, and the evidence was not cumulative or likely to mislead the jury. State v. Godfrey, 263 N.C. App. 264, 822 S.E.2d 894, 2018 N.C. App. LEXIS 1225 (2018).

Temporal proximity requirement was met despite the 10-year and 8-year attenuation between prior sexual assaults and instant offense, because the acts were performed continuously over a period of years and thus, they were not too remote to be considered. State v. Pabon, 273 N.C. App. 645, 850 S.E.2d 512, 2020 N.C. App. LEXIS 709 (2020), modified, aff'd, 867 S.E.2d 632, 2022- NCSC-16, 2022 N.C. LEXIS 150 (2022).

Drugs Found at Defendant’s Home Inadmissible. —

Evidence of substantial amounts of drugs belonging to others and seized at the trailer where the defendant lived was irrelevant, prejudicial and inadmissible to show his knowledge that the substance in a van he was driving was cocaine; the defendant was not charged with any offense in connection with the drugs seized at the trailer and the circumstantial evidence presented at trial—the fact that drugs belonging to other people were discovered at the trailer defendant shared with others—was too weak to support an inference of knowledge on his part. State v. Moctezuma, 141 N.C. App. 90, 539 S.E.2d 52, 2000 N.C. App. LEXIS 1287 (2000).

Evidence that a defendant used drugs shortly before a fire he was accused of starting was not excluded under G.S. 8C-1, Rule 404(b) because it served the purpose of establishing the chain of events and circumstances leading to the fire. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41, 2002 N.C. App. LEXIS 1276 (2002), aff'd in part, 357 N.C. 235, 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

Evidence Held Inadmissible. —

Where five year old child, whom the court ruled was incompetent to testify, herself was incapable of informing the jury firsthand of the events that the State claimed she had participated in, it was not proper for the prosecutor to advise the jury of these purported events based on his secondhand understanding of what the child knew and had said. State v. Flannigan, 78 N.C. App. 629, 338 S.E.2d 109, 1985 N.C. App. LEXIS 4350 (1985), cert. denied, 316 N.C. 197, 341 S.E.2d 571, 1986 N.C. LEXIS 2022 (1986), writ denied, 316 N.C. 197, 341 S.E.2d 572, 1986 N.C. LEXIS 2023 (1986).

In a prosecution for armed robbery, evidence elicited from defendant’s girlfriend regarding another crime, namely, the shooting of her former boyfriend, constituted prejudicial error. State v. Monroe, 78 N.C. App. 661, 338 S.E.2d 137, 1986 N.C. App. LEXIS 1966 (1986).

It was error for the trial court to allow, over defendant’s objection, the prosecutor’s cross-examination of defendant regarding alleged extrinsic acts of misconduct in order to circumstantially prove defendant’s character for violence as the basis for an inference that defendant was the aggressor in the affray at issue and could not have acted in self-defense. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84, 1986 N.C. LEXIS 1897 (1986) (holding, however, that the error was harmless in light of other evidence properly admitted at trial) .

In a prosecution for first degree sexual offense involving three and four year old victims, defendant’s alleged sexual contacts with his sister nine years before trial, when defendant was thirteen years old, were too remote in time to be probative or relevant. State v. Scott, 317 N.C. 689, 347 S.E.2d 414 (1986).

Evidence of defendant’s involvement in other crimes, offered by the State to prove the crime for which defendant was being tried, was not admissible where the only relation between the other crimes and the crime charged was that they were similar and were committed within a time not too far removed from the crime charged. State v. Hamrick, 81 N.C. App. 508, 344 S.E.2d 316, 1986 N.C. App. LEXIS 2292 (1986).

In prosecution for rape, sexual offense and crime against nature, cross-examination of defendant with regard to other nonconsensual sexual activity with another woman was not relevant on the question of the victim’s consent, and where defendant’s only defense was consent, this cross-examination inquiry was clearly prejudicial and required a new trial. State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, 1986 N.C. App. LEXIS 2240, writ denied, 317 N.C. 336, 346 S.E.2d 503, 1986 N.C. LEXIS 2322 (1986).

The fact that the defendant pointed his gun at victim three years previously and that both men laughed afterward did not indicate that three years later defendant did not fear victim or make the apparent necessity to defend himself more or less probable than it would be without the evidence; thus, it was error to allow testimony of this extrinsic act of misconduct in order to show defendant’s character for violence and that therefore he must have acted in conformity with that character, and not in self defense, when he fatally shot the victim. State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130, 1986 N.C. App. LEXIS 2750 (1986).

In trial for murder of defendant’s husband, specific instances of conduct regarding defendant’s alleged participation in three previous unrelated murders were not probative of defendant’s character for truthfulness under G.S. 8C-1, Rule 608(b), and were not admissible to prove motive under subsection (b) of this rule. Thus the trial court committed prejudicial error in denying defendant’s motion in limine to prevent the district attorney from using the inadmissible evidence to impeach defendant. State v. Lamb, 84 N.C. App. 569, 353 S.E.2d 857, 1987 N.C. App. LEXIS 2536 (1987), aff'd, 321 N.C. 633, 365 S.E.2d 600, 1988 N.C. LEXIS 227 (1988).

The trial court erred by admitting testimony elicited by the prosecutor from witness that she was “still afraid” of defendant on the day she testified, as this was inadmissible character evidence. State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288, 1987 N.C. App. LEXIS 3308 (1987).

Where it was clear at trial who was being tried and witnesses specifically identified defendant, and there was no evidence that defendant ever gave anyone a different name, testimony by police officer that he knew defendant by an alias inferred that defendant had been involved in some other crime or had used other names for some illegal purpose, and such testimony was, therefore, not admissible as an identity exception under subsection (b) of this section. State v. General, 91 N.C. App. 375, 371 S.E.2d 784, 1988 N.C. App. LEXIS 882 (1988).

In a prosecution for second-degree murder, testimony that the defendant was in the business of selling marijuana to high school age persons had no tendency to make any fact of consequence more or less probable, nor was the evidence about how defendant procured his automobile and the evidence concerning the details of how the marijuana was packaged and sold relevant to any material fact in issue. Equally irrelevant was evidence concerning the victim’s citation for possession of marijuana. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, 1988 N.C. App. LEXIS 722 (1988).

Evidence of prior, noncriminal unrelated fire was held inadmissible because of its prejudicial character since such evidence was irrelevant in that it neither confirmed nor suggested a relationship between two defendants charged with burning down a food market. Moreover, the State failed to show defendants had had any connection with the previous fire, the exception for the admission of prior bail acts set out by this rule. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607, 1988 N.C. App. LEXIS 632 (1988).

Testimony of cellmate and detective that defendant was in jail on a charge of attempted murder of his girlfriend was not relevant where defendant was on trial for an unrelated crime of murder, since the court determined that this testimony was not relevant to any fact or issue other than the character of the accused. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566, 1988 N.C. LEXIS 465 (1988).

Where, in an attempt to undercut defendant’s testimony about her abuse by her first husband, who was a drug addict, and by her second, who was an alcoholic, district attorney asked, “Well, you sort of enjoyed smoking marijuana, didn’t you?” and defendant responded, “I did on occasion sir,” the question was error; defendant’s admission to having smoked marijuana had no conceivable tendency to prove or disprove her truthfulness and subsection (b) of this rule prohibits evidence of other crimes, wrongs, or acts to prove the defendant acted in conformity with a character trait those acts exhibit. State v. Clark, 324 N.C. 146, 377 S.E.2d 54, 1989 N.C. LEXIS 103 (1989).

In trial for first degree arson, court erred in admitting evidence of an earlier fire in another house where there was no evidence that defendant had performed any act with respect to the 1982 fire, and no evidence placing defendant at the scene or in its vicinity at the time of that fire; there was no nexus between the defendant and the act sought against him; therefore, the evidence did not support the inference that defendant committed both the earlier and the later acts. State v. English, 95 N.C. App. 611, 383 S.E.2d 436, 1989 N.C. App. LEXIS 822 (1989).

Where defendant was charged with two counts of burglary, two counts of rape and two counts of sex offense, his employment record had no relevance to any of those offenses; thus, neither defendant’s evidence that he was a good employee nor State’s rebuttal evidence of his bad conduct toward fellow employees was admissible under subdivision (a)(1) of this rule. State v. Cotton, 99 N.C. App. 615, 394 S.E.2d 456, 1990 N.C. App. LEXIS 815 (1990), aff'd, 329 N.C. 764, 407 S.E.2d 514, 1991 N.C. LEXIS 608 (1991).

Court’s refusal to permit defendant to cross-examine detective about police department’s having used defendant as an informant was proper. Defendant’s purpose was to show that he had credibility with the police department, but at that time only the State had presented evidence, defendant’s credibility had not been attacked, and he was not entitled to bolster it in advance. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760, 1990 N.C. App. LEXIS 1128 (1990).

Proffered testimony as to the victim’s alcohol consumption with other people in party settings had no tendency to prove that the victim consented to sexual activity with the defendant on the day in question. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Where defendant was arrested after a bag of cocaine was found under the seat of the truck he was operating, and at trial he offered the criminal record of the owner of the truck to show that the owner acted in conformity with a prior conviction by placing cocaine under the seat, the court properly excluded the criminal record under section (b) of this rule. Such evidence created only an inference or conjecture. State v. Chandler, 100 N.C. App. 706, 398 S.E.2d 337, 1990 N.C. App. LEXIS 1155 (1990).

Where defendant sought unsuccessfully to introduce evidence that another victim was attacked in the hospital basement by a black male attired similarly to the suspect the hospital employee described and where defendant contended that the evidence should have been admitted to show that someone else committed the crime, trial court did not err in excluding this evidence. The crimes were not similar; other victim was not raped and there was no indication that her attacker attempted to rape her; the attacker’s identity was not known; and there was no evidence to indicate that the man who grabbed other victim also committed the offense against the victim two months later. State v. Richardson, 328 N.C. 505, 402 S.E.2d 401, 1991 N.C. LEXIS 261 (1991).

Prosecutor’s questioning of capital murder defendant’s mother about locks placed on the outside of defendant’s bedroom door was highly prejudicial and of no probative value; however, such error was harmless where the question of defendant’s guilt was strong, the trial court properly sustained defendant’s objections to the questions and the mother testified she was not afraid of her son. State v. Payne, 328 N.C. 377, 402 S.E.2d 582, 1991 N.C. LEXIS 263 (1991).

It was proper for the prosecution to refer to the defendant’s illegal adulterous affair only in order to rebut the defendant’s contention that he was a law-abiding citizen. Therefore, the trial court erred in allowing the prosecution to cross-examine the defendant concerning the adulterous affair and to require the defendant to read the love letters concerning the affair on cross-examination. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6, 1991 N.C. App. LEXIS 473 (1991).

Where the prosecution cross-examined the defendant concerning his affair before the defendant put character witnesses on the stand to testify as to his law-abidingness, the trial court erred in allowing the prosecution to ask the defendant about his adultery before the defendant put his witness on the stand. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6, 1991 N.C. App. LEXIS 473 (1991).

In trial for sexual offenses against 3 minor teenage boys, testimony of a 24 year old man that he had been sexually assaulted by the defendant approximately seven years before was error, but the error was not prejudicial in light of the other evidence. State v. Gross, 104 N.C. App. 97, 408 S.E.2d 531, 1991 N.C. App. LEXIS 986 (1991).

Evidence that thirteen and one-half years prior to trial defendant had been convicted of armed robbery was admissible where the evidence presented by the State of the earlier armed robbery was sufficiently similar to the crimes charged to be admitted for the purpose of showing a modus operandi, motive and even identity, and where the evidence was not too remote in time to be probative of any fact at issue. State v. Wilson, 106 N.C. App. 342, 416 S.E.2d 603, 1992 N.C. App. LEXIS 494 (1992).

Trial judge did not err by allowing testimony about defendant’s drug dealings; the disputed evidence was relevant to show defendant’s motive for murder. State v. Ligon, 332 N.C. 224, 420 S.E.2d 136, 1992 N.C. LEXIS 481 (1992).

The trial court erred in allowing cross-examination of defendant about details of his prior convictions in that it bore no logical relevance to the crimes charged that would render it admissible under section (b), and it was not admissible to refute any inaccurate or misleading testimony or inferences raised by defendant. State v. Lynch, 334 N.C. 402, 432 S.E.2d 349, 1993 N.C. LEXIS 337 (1993).

Where defendant was convicted of second degree murder, evidence that defendant had previously shot over a truck was irrelevant and inadmissible and could not be deemed harmless error so that defendant was entitled to a new trial. State v. Irby, 113 N.C. App. 427, 439 S.E.2d 226, 1994 N.C. App. LEXIS 117 (1994).

Court properly excluded from evidence the fact that the victim had twice been convicted of murder. State v. Leazer, 337 N.C. 454, 446 S.E.2d 54, 1994 N.C. LEXIS 429 (1994).

The trial court erred in allowing the introduction of evidence of plaintiff’s prior use of illegal drugs in sexual molestation case, such information was highly prejudicial and defendants proffered no permissible use of such information. Johnson v. Amethyst Corp., 120 N.C. App. 529, 463 S.E.2d 397, 1995 N.C. App. LEXIS 919 (1995).

Evidence of witness’s juvenile adjudication of guilt of involuntary manslaughter was not relevant; admission of the evidence was not necessary to a fair determination of defendant’s guilt or innocence. State v. Deese, 136 N.C. App. 413, 524 S.E.2d 381, 2000 N.C. App. LEXIS 8 (2000).

Evidence of a prior detainment incident at another department store was inadmissible in defendant’s shoplifting case where she did not claim to have made a mistake in either incident and where defendant was judicially acquitted of the crime for which she was charged in the prior incident. State v. Fluker, 139 N.C. App. 768, 535 S.E.2d 68, 2000 N.C. App. LEXIS 1026 (2000).

Testimony by a witness as to defendant’s having lied to the witness about an unrelated matter was not admissible under G.S. 8C-1, N.C. R. Evid. 404 because the testimony was not to establish defendant’s intent or motive, but was to attack defendant’s credibility. State v. Lee, 189 N.C. App. 474, 658 S.E.2d 294, 2008 N.C. App. LEXIS 647 (2008).

State should not have been allowed to introduce evidence in its case-in-chief about the victim’s good character merely because defense counsel forecasted during opening statements the introduction of evidence of the victim’s bad character. Since defendant offered no evidence in his case-in-chief of the victim’s bad character, the admission of character evidence as to the victim was in error; however, the error was harmless under G.S. 15A-1443(a) because there was sufficient evidence to refute defendant’s claim that, but for the admission of the character evidence, the jury would have reached a different verdict. State v. Buie, 194 N.C. App. 725, 671 S.E.2d 351, 2009 N.C. App. LEXIS 48 (2009).

Trial court erred in allowing the State to cross-examine defendant about instances of domestic violence that occurred between defendant and a former girlfriend more than 10 years earlier, because the two incidents did not contain similarities supporting an inference that the same person committed both acts; the prior event involved defendant’s former adult girlfriend, while the event that was the subject of the trial, involved a child who defendant barely knew. State v. Ray, 197 N.C. App. 662, 678 S.E.2d 378, 2009 N.C. App. LEXIS 1069 (2009), rev'd in part, 364 N.C. 272, 697 S.E.2d 319, 2010 N.C. LEXIS 583 (2010).

Evidence of specific instance of conduct by the victim that led to defendant imposing military discipline on the victim immediately prior to the victim’s accusation of rape was properly excluded, because they were not relevant to the issues before the jury in defendant’s trial for first-degree murder. State v. Laurean, 220 N.C. App. 342, 724 S.E.2d 657, 2012 N.C. App. LEXIS 601 (2012).

Evidence of a prior shooting was erroneously admitted at defendant’s trial for, inter alia, murder, because there were too many dissimilarities between the two incidents. Among other things, the offenses occurred 13 years apart, the prior incident occurred in New Jersey while the subject incident occurred in North Carolina, the prior shooting was a crime of passion while the victim in the instant action had contacted defendant for the purpose of obtaining drugs in the past. State v. Flood, 221 N.C. App. 247, 726 S.E.2d 908, 2012 N.C. App. LEXIS 767 (2012).

Defendant was entitled to a new trial after the trial court erred under G.S. 8C-1, N. C. R. Evid. 404(b), in admitting evidence of defendant’s writings about forcible, non-consensual anal sex with an adult female acquaintance, because the charged crime involved defendant’s very young son and the only similarity in the how crime occurred was that it involved anal intercourse. State v. Davis, 222 N.C. App. 562, 731 S.E.2d 236, 2012 N.C. App. LEXIS 1030 (2012).

Trial court did not err by excluding the testimony of a doctor because his testimony did not constitute evidence of the decedent’s character for violence, but rather testified that the decedent was an angry person who had thoughts of violence. Because the trial court’s exclusion of the expert’s testimony was within the bounds of the rules of evidence, defendant’s right to present a defense under U.S. Const. amend. VI and N.C. Const. Art. I, § 23 was not violated. State v. McGrady, 232 N.C. App. 95, 753 S.E.2d 361, 2014 N.C. App. LEXIS 55 (2014), aff'd, 368 N.C. 880, 787 S.E.2d 1, 2016 N.C. LEXIS 442 (2016).

Even though the trial court erred by admitting testimony about the good character of the victim because defendant did not offer any evidence that the victim was the first aggressor, that defendant’s brother acted in self-defense, or that the brother was in any way justified in shooting and killing the victim, the error was not plain because the State provided circumstantial evidence that defendant assisted in planning and carrying out the ambush. State v. Mitchell, 270 N.C. App. 136, 840 S.E.2d 276, 2020 N.C. App. LEXIS 133 (2020).

Even assuming the alleged acts were substantially similar, plaintiff’s sole purpose in proffering evidence of an alleged prior assault was to establish defendant’s propensity to engage in that kind of conduct, and the rule explicitly required the exclusion of evidence of other crimes or acts under these circumstances and the trial court did not abuse its discretion in excluding evidence of an alleged prior assault. Keller v. Deerfield Episcopal Ret. Cmty., Inc., 271 N.C. App. 618, 845 S.E.2d 156, 2020 N.C. App. LEXIS 437 (2020).

Evidence Improperly Admitted. —

Defendant’s conviction of indecent liberties with a child under G.S. 14-202.1 was reversed as a composition book entry relating to defendant’s forced anal intercourse with an adult woman was inadmissible under G.S. 8C-1, N.C. R. Evid. 401 and 404(b) to prove intent and sexual gratification since the actual force used in the composition book was not analogous to the constructive force theory between a parent and a child; the writings did not give rise to any inference that defendant was desirous of or obtained sexual gratification from anal intercourse with his four- or six-year-old son. State v. Davis, 726 S.E.2d 900, 2012 N.C. App. LEXIS 764 (Ct. App. 2012), op. withdrawn, 2012 N.C. App. LEXIS 824 (N.C. Ct. App. June 29, 2012), sub. op., 222 N.C. App. 562, 731 S.E.2d 236, 2012 N.C. App. LEXIS 1030 (2012).

Possession of Pornographic Videos and Magazines. —

As a general rule, evidence of a defendant’s prior conduct, such as the possession of pornographic videos and magazines, is not admissible to prove the character of the defendant in order to show that the defendant acted in conformity therewith on a particular occasion. State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289, 2002 N.C. App. LEXIS 973 (2002).

Admission that Defendant was “B and E Guy”. —

Even if the admission of defendant’s statement that he was a “B and E guy” was error as it was evidence of defendant’s character, defendant was not entitled to relief because defendant could not show that it changed the result of the case and, thus, the admission of said testimony did not prejudice defendant. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808, 2011 N.C. App. LEXIS 1224 (2011).

Evidence That Defendant Enjoyed Consensual Anal Sex With His Wife Improperly Admitted. —

Defendant was granted a new trial on his convictions of first degree sex offense with a child, G.S. 14-27.4, and taking indecent liberties with a child, G.S. 14-202.1, because the trial court erred, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b), in admitting testimony by defendant’s wife that defendant enjoyed anal sex; the fact that defendant engaged in and liked consensual anal sex with his wife was not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both to be admissible under rule 404(b). State v. Dunston, 161 N.C. App. 468, 588 S.E.2d 540, 2003 N.C. App. LEXIS 2186 (2003).

Evidence of Another Child’s Death. —

Three reasons enumerated by the trial court were proper reasons to allow in the evidence of another child’s death while under defendant’s care in defendant’s trial for misdemeanor child abuse and contributing to the delinquency of a minor, and it could not be said that the ruling was so arbitrary that it was not the result of a reasoned decision; however, the State’s use of the evidence regarding the other child went beyond the purposes for which the trial court admitted the evidence and the State improperly argued that defendant had the propensity to leave young children unattended, resulting in death by drowning.

Evidence of Prior Abuse Toward Other Child. —

Admission of testimony by the victim’s sister regarding defendant’s prior abuse toward her was not erroneous because the testimony concerned defendant’s actions towards the sister when she was approximately the same age, illustrating a continuing pattern of sexual abuse and an intent to commit incest. State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334, 2005 N.C. App. LEXIS 1583 (2005).

Where defendant was charged with indecent liberties with a child and with statutory sex offense, it was proper to admit testimony by three witnesses about other acts allegedly committed by defendant, in light of the similarity between the ages of the girls at the time of the acts, their placement with defendant because of familial or quasi-familial relationships, defendant’s purported modus operandi in each instance, and the warning he allegedly gave each girl. State v. Bradley, 179 N.C. App. 551, 634 S.E.2d 258, 2006 N.C. App. LEXIS 1968 (2006).

Defendant’s sexual acts against the victim’s cousin were sufficiently similar to be admissible. Both victims were defendant’s granddaughters, both were around the same age when defendant initiated his conduct, both occurred more than one time, and defendant asked both of them if they were old enough for him to touch their private parts. Although the acts against the cousin occurred in plain view, while they were watching television, and the acts with the victim took place in private, the trial court did not err in admitting the evidence. State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1, 2011 N.C. App. LEXIS 1740 (2011).

Evidence Held Prejudicial. —

Where the challenged evidence that defendant was in custody for assault with a deadly weapon with intent to kill his girlfriend was especially prejudicial because of its similarity to the charge at issue, which was murder and assault with a deadly weapon with intent to kill, and the similarity of the charges was compounded by the additional “verification” evidence of a detective, such admissions constituted prejudicial error and defendant was entitled to a new trial. State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566, 1988 N.C. LEXIS 465 (1988).

Evidence of prior sexual assaults against a witness, which happened seven years before a similar sexual assault for which defendant was charged was prejudicial to defendant’s fundamental right to a fair trial because the prior acts were too remote in time. State v. Jones, 322 N.C. 585, 369 S.E.2d 822, 1988 N.C. LEXIS 475 (1988).

Where defendant was accused of sexually abusing his 14-year-old adopted daughter, the trial court erred in admitting testimony of alleged prior bad acts committed by defendant; namely, defendant’s alleged frequent nudity, his alleged frequent fondling of himself, and an adulterous affair in which he was allegedly involved, as under the circumstances of this case, the admission of such evidence was highly prejudicial and of questionable relevance. State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553, 1989 N.C. App. LEXIS 936 (1989).

The appellate court agreed with 14-year-old defendant that allegations of a subsequent sexual assault on a four-year-old were not admissible since the incident was not sufficiently similar to the one at issue involving a nine-year-old; the admission of such evidence tended only to show the propensity of the defendant to commit sexual acts against young female children, an improper purpose, and therefore entitled defendant to a new trial. State v. White, 135 N.C. App. 349, 520 S.E.2d 70, 1999 N.C. App. LEXIS 1052 (1999).

Refusal to Exclude Evidence of Other Killings Held Prejudicial. —

In trial for murder of defendant’s husband, rulings of the trial judge denying defendant’s motion in limine to exclude evidence implicating her in other killings held to have impermissibly chilled her right to testify in her own defense. State v. Lamb, 321 N.C. 633, 365 S.E.2d 600, 1988 N.C. LEXIS 227 (1988).

Cumulative Effect of Admitted Evidence Held Prejudicial. —

Where, in a murder prosecution, the State spent a great deal of time focusing on the details of defendant’s alleged prior offenses of selling marijuana to high school students, citation for possession of marijuana, and breaking and entering, the cumulative effect of the admission of the evidence was prejudicial error entitling the defendant to a new trial. State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456, 1988 N.C. App. LEXIS 722 (1988).

Admission of Evidence Not Prejudicial. —

Even of the trial court erred in admitting evidence of a prior robbery, the error was harmless given the victim’s identification of defendant and evidence that not only did defendant know the victim’s brother hid money at her house, but when the victim told the men the money was her mother’s house the men left and shortly thereafter someone attempted to break into the victim’ smother’s house, supporting an inference that defendant was the perpetrator. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Admission of Irrelevant Evidence Not Prejudicial. —

In the light of the direct evidence against defendant and the utter irrelevance of marijuana possession to the charges on which defendant was ultimately convicted, no prejudicial error occurred by virtue of admission of evidence that marijuana was found in defendant’s basement. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248, 1986 N.C. App. LEXIS 2248 (1986), rev'd, 320 N.C. 626, 359 S.E.2d 774, 1987 N.C. LEXIS 2328 (1987).

Although a detective’s testimony concerning defendant’s statement concerning an unrelated robbery was inadmissible under G.S. 8C-1, N.C. R. Evid. 404, defendant was not entitled to a mistrial because the curative instruction given was sufficient to cure the error, and there was no evidence that the statement had any impact on the trial, particularly in light of the fact that defendant admitted participating in the charged robberies. State v. McCallum, 187 N.C. App. 628, 653 S.E.2d 915, 2007 N.C. App. LEXIS 2561 (2007).

Erroneous Admission of Testimony Held Harmless Error. —

Admission of testimony as to the victim’s character was erroneous; however, the error was harmless given the overwhelming evidence of defendant’s guilt presented by the State and defendant’s failure to show that the exclusion of the character testimony would have impacted the jury. State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31, 2004 N.C. App. LEXIS 246 (2004).

Admission of Evidence Not Plain Error. —

Admission of evidence as to defendant’s pornography business and a confidential informant’s testimony that defendant handed him pornographic tapes was not impermissible evidence of defendant’s character under a plain error analysis as its admission was not an error that was so fundamental as to result in a miscarriage of justice or that had a likely impact on the outcome of the trial as there was substantial evidence establishing defendant’s commission of trafficking in cocaine by possession. State v. Williams, 177 N.C. App. 725, 630 S.E.2d 216, 2006 N.C. App. LEXIS 1219 (2006).

Trial court did not commit plain error in allowing various witnesses to reference defendant’s criminal record, as the evidence was not offered to prove defendant’s character in order to show that he acted in conformity with that character, but instead the evidence simply emerged as part of the witnesses’ narrative; without an objection, neither the trial court nor the jury had any reason to focus on the information, and the likelihood of any resulting prejudice was minimal. State v. Cole, 209 N.C. App. 84, 703 S.E.2d 842, 2011 N.C. App. LEXIS 59 (2011).

Exclusion of Evidence Was Not Prejudicial Error. —

Error in excluding opinion evidence by defendant’s friend as to defendant’s character for trustworthiness was not prejudicial since the jury was not limited to assessing the believability of defendant’s story based solely on her own testimony, but heard from several witnesses whose testimony arguably had greater probative force regarding defendant’s state of mind than the excluded testimony would have had; had the opinion evidence been heard, evidence that defendant was not gullible, which could have diminished her defense, would also have been heard. State v. Tatum-Wade, 229 N.C. App. 83, 747 S.E.2d 382, 2013 N.C. App. LEXIS 894 (2013).

Failure to Preserve Challenge for Appellate Review. —

Defendant failed to preserve a challenge to the admission of evidence under G.S. 8C-1, N.C. R. Evid. 404, because defendant failed to object when the evidence was offered at trial and made no attempt to introduce evidence that the charges relating to the Rule 404(b) evidence were dismissed. State v. Reaves, 196 N.C. App. 683, 676 S.E.2d 74, 2009 N.C. App. LEXIS 523 (2009).

Prosecutorial Questioning Harmless. —

Assuming, arguendo, the trial court erred by allowing the prosecutor to cross-examine defendant for impeachment purposes about an alleged prior sexual assault of defendant’s then-minor daughter at defendant’s trial for taking or attempting to take indecent liberties with a child and solicitation of a child by computer, defendant’s conclusive denials that the incident ever occurred rendered that questioning harmless. State v. Heelan, 263 N.C. App. 275, 823 S.E.2d 106, 2018 N.C. App. LEXIS 1253 (2018).

I.General Consideration

Construction. —

Rule declares that other sexual behavior engaged in by the prosecuting witness generally is irrelevant. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330, 2015 N.C. App. LEXIS 516 (2015).

Exception set forth in subsection (b)(2) exists to limit the blanket exclusion of evidence related to sexual behavior pursuant to the rule. State v. Jacobs, 370 N.C. 661, 811 S.E.2d 579, 2018 N.C. LEXIS 215 (2018).

Qualifications for Relevancy. —

Under this rule, the sexual behavior of the prosecuting witness is irrelevant unless the behavior (1) was between the complainant and the defendant; or (2) is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or (3) is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant’s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or (4) is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged. State v. Alverson, 91 N.C. App. 577, 372 S.E.2d 729, 1988 N.C. App. LEXIS 899 (1988).

Prior sexual conduct between the complainant and the defendant on trial was relevant, even though multiple defendants were being tried for rape in separate proceedings. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525, 1996 N.C. App. LEXIS 208 (1996).

By this statute, the legislature intended to exclude from evidence only the actual sexual history of the complainant and not prior false accusations made by the complainant. State v. McCarroll, 109 N.C. App. 574, 428 S.E.2d 229, 1993 N.C. App. LEXIS 357 (1993), rev'd, 336 N.C. 559, 445 S.E.2d 18, 1994 N.C. LEXIS 296 (1994).

Exclusion of Public Held Proper. —

Court did not err in closing to the public a voir dire hearing conducted to determine the relevance of prosecuting rape victim’s past sexual behavior. State v. McNeil, 99 N.C. App. 235, 393 S.E.2d 123, 1990 N.C. App. LEXIS 514 (1990).

Scope of In Camera Hearing. —

At an in camera hearing pursuant to this rule, the trial judge acted well within his authority when he refused to allow defendant to question victim about the manner in which her assailant performed the act of sexual intercourse. Such questions did not present an inquiry into evidence of sexual activity of the victim other than the sexual acts which were at issue, and so were not a proper subject of the in camera examination; further, defendant had already cross-examined victim about the extent of penetration and ejaculation by her assailant during the rape. State v. Mason, 315 N.C. 724, 340 S.E.2d 430, 1986 N.C. LEXIS 1894 (1986).

Cross-Examination Properly Limited. —

Where the defendant attempted to elicit testimony from the victim regarding an incident in which she was allegedly “making out” with defense witness, the trial court properly limited the cross-examination of the victim pursuant to the Rape Shield Statute. State v. Herring, 322 N.C. 733, 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Trial court did not err in denying defendant’s request to inquire into the victim’s previous sexual activity for the purpose of attacking her credibility as a witness, where defendant was on trial for having committed sexual offenses against the victim, his 16-year-old daughter, as he failed to show that such examination was within any of the four very narrow situations that were excepted from that prohibition under the Rape Shield Statute. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97, 2005 N.C. App. LEXIS 1794 (2005).

Trial court did not err in precluding defendant from questioning the complainant about her inconsistent statements on sexual history to police and to medical personnel, as the complainant did not offer testimony about prior sexual history, the testimony defendant sought to elicit was about sexual activity occurring months before the subject incident, and there was no issues as to consent of the complainant. State v. Edmonds, 212 N.C. App. 575, 713 S.E.2d 111, 2011 N.C. App. LEXIS 1226 (2011).

Deceased Rape Victim. —

In the limited circumstance where the rape victim is deceased and the defendant’s own testimony brings into question the victim’s sexual behavior, the prosecution may present rebuttal evidence relating to the victim’s prior sexual conduct to challenge the credibility of defendant’s testimony. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, 1994 N.C. LEXIS 302, cert. denied, 513 U.S. 1006, 115 S. Ct. 525, 130 L. Ed. 2d 429, 1994 U.S. LEXIS 8123 (1994).

The victim’s virginity or lack thereof does not fall within any of the four exceptions and is therefore an area prohibited from cross-examination by this rule. State v. Autry, 321 N.C. 392, 364 S.E.2d 341, 1988 N.C. LEXIS 105 (1988).

Although this rule did not operate as a shield to questions regarding medical records relating to victim’s gonorrhea where defendant maintained that the sexual acts, if any, committed on the victim (and the resultant gonorrhea) were done by someone else, defendant’s questions were properly excluded as irrelevant because the records, referring only to the victim’s “partner,” did not contradict anything testified to by the victim, nor did it suggest anything else that could be used to impeach her. State v. Thompson, 139 N.C. App. 299, 533 S.E.2d 834, 2000 N.C. App. LEXIS 895 (2000).

Evidence of prostitution does not necessarily counter the allegations of a witness as prostitutes may be victims of sexual offenses. State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418, 1997 N.C. App. LEXIS 124, cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299, 1997 U.S. LEXIS 6604 (1997).

Prior Abuse of Child Not Admissible. —

Absent some “opening of the door,” evidence of prior abuse sought to be admitted solely to show child had prior knowledge of sexual matters was not admissible under this rule. State v. Bass, 121 N.C. App. 306, 465 S.E.2d 334, 1996 N.C. App. LEXIS 3 (1996).

Trial court did not abuse its discretion in refusing to permit defendant from introducing evidence that his minor sexual assault victim had been sexually abused by her father years earlier because there was no indication in the record that this evidence was relevant to the victim’s credibility. State v. Yearwood, 147 N.C. App. 662, 556 S.E.2d 672, 2001 N.C. App. LEXIS 1256 (2001).

Evidence excluded under G.S. 8C-1, N.C. R. Evid. 412(b)(2) that a victim’s grandfather had kissed the victim did not establish an alternative explanation for a healed tear in the victim’s vaginal area as evidence of blood on the victim’s panties and on the victim’s grandfather’s underwear did not show vaginal penetration as there was testimony that the blood stain on the victim’s panties was from the victim’s period and that the stain on the victim’s grandfather’s underwear was from a boil. State v. Adu, 195 N.C. App. 269, 672 S.E.2d 84, 2009 N.C. App. LEXIS 117 (2009).

Prosecutor Held Allowed to Comment on Purpose of the Rape Shield Statute. —

The trial court did not abuse its discretion in overruling the defendant’s objection to the prosecutor’s comment about the purpose of the Rape Shield Statute where the prosecutor attempted to explain that the statute was intended to insure that victims were not again “victimized” through inquiries about irrelevant sexual behavior, and the trial court immediately cautioned the jury to follow the court’s instructions as to the law. State v. Herring, 322 N.C. 733, 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Questions Excluded Where No Request for Hearing. —

Trial court did not err by excluding questions defendant sought to ask the prosecutrix regarding her past sexual behavior; once the State opens the door into a victim’s sexual activity, the defendant may request an in camera hearing, and in the absence of such a request, a fishing expedition into the victim’s past sexual behavior is not permitted. State v. Fenn, 94 N.C. App. 127, 379 S.E.2d 715, 1989 N.C. App. LEXIS 435 (1989).

Where a child victim denied on cross examination that she had sexual activity with another person and the other person was not called during an in camera hearing during the State’s case or as a witness during the defense case, the trial court properly excluded the other person’s testimony pursuant to G.S. 8C-1, N.C. R. Evid. 412(d). Even if defense counsel’s representation regarding the proposed testimony was sufficient to comply with Rule 412(d), defendant failed to establish the relevance of the other person’s testimony. State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25, 2009 N.C. App. LEXIS 112 (2009).

Cross-Examination of Defendant Concerning Defendant’s In Camera Statements. —

Contrary to defendant’s position, this rule could not be utilized as a barrier to prevent cross-examination concerning critical inconsistencies in sworn testimony; therefore, the prosecution was properly permitted to cross-examine defendant concerning his prior inconsistent statements made at an in camera hearing. State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132, 1993 N.C. App. LEXIS 1094 (1993).

Exclusion of Evidence Upheld. —

In prosecution in which defendant was convicted of taking indecent liberties with a minor, the trial court did not err by prohibiting defendant from cross-examining prosecutrix about her previous accusations of sexual misconduct against her father and stepfather. State v. Anthony, 89 N.C. App. 93, 365 S.E.2d 195, 1988 N.C. App. LEXIS 228 (1988).

The trial court did not commit reversible error in denying defendant’s request to cross-examine the victim about her testimony that before she was raped she told defendant that she was a virgin, despite defendant’s contention that the trial court’s ruling prevented the correction of false testimony by the victim and was therefore fundamentally unfair and violative of his constitutional right to confront his accuser. State v. Autry, 321 N.C. 392, 364 S.E.2d 341, 1988 N.C. LEXIS 105 (1988).

Contention that because witness stated at trial that he thought the victim was a “nice person” and detective stated that witness had voiced a similar opinion during a recorded statement given to the police, certain portions of that recorded statement concerning the victim’s prior sexual history should have been admitted into evidence was without merit. State v. McCrimmon, 89 N.C. App. 525, 366 S.E.2d 572, 1988 N.C. App. LEXIS 179 (1988).

Trial court properly limited line of questioning whereby defense counsel attempted to question rape victim about an alleged violent incident with her boyfriend, which rape victim testified was unrelated to any sexual activity, as these questions were not relevant or admissible under subsection (b) of this rule. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, 1988 N.C. App. LEXIS 355 (1988).

Defendant’s request to cross-examine the prosecuting witness in rape trial, based upon his speculation that she was motivated to accuse him of rape because she was pregnant by her boyfriend, did not fall under an exception in this rule; therefore, the trial court was correct in denying this line of questioning during cross-examination of the prosecuting witness. State v. Alverson, 91 N.C. App. 577, 372 S.E.2d 729, 1988 N.C. App. LEXIS 899 (1988).

Evidence that someone other than defendant sexually abused child two and a half years before the incident resulting in a rape charge against defendant was properly excluded as being irrelevant and confusing to the jury. State v. Holden, 106 N.C. App. 244, 416 S.E.2d 415, 1992 N.C. App. LEXIS 459 (1992).

Testimony was properly excluded where there was evidence of only one incident of the complainant exchanging sex for crack cocaine; there was not sufficient evidence that the complainant engaged in a pattern of exchanging sex for crack. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525, 1996 N.C. App. LEXIS 208 (1996).

Evidence of victim’s alleged past sexual behavior was not the type of relevant evidence which could be offered, under this rule, for the purpose of showing that the acts charged were not committed by defendant. State v. Trogden, 135 N.C. App. 85, 519 S.E.2d 64, 1999 N.C. App. LEXIS 917 (1999).

Because no evidence proffered at an in camera hearing supported an inference that a victim’s prior sexual activity was forced or caused any injuries, evidence of the victim’s prior sexual activity was properly excluded under the rape shield statute, G.S. 8C-1, N.C. R. Evid. 412(b)(2); the probative value, if any, to defendant was substantially outweighed by the danger of unfair prejudice to the State and the prosecuting witness under G.S. 8C-1, N.C. R. Evid. 403. State v. Harris, 360 N.C. 145, 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005).

Trial court did not err, in a trial of charges of statutory sexual offense and taking indecent liberties with a child, in disallowing defendant from questioning the prosecuting witness regarding her sleeping in the same bed with a boyfriend around the same period of defendant’s alleged criminal conduct; since the victim’s denial of a sexual relationship was the only evidence on this point, there was no evidence of sexual activity the relevance of which the trial court was obligated to determine. State v. Hammett, 182 N.C. App. 316, 642 S.E.2d 454, 2007 N.C. App. LEXIS 580 (2007).

Where defendant had never argued that he had a consensual sexual encounter with his sexual assault victim and repeatedly denied having such an encounter, consensual or otherwise, the exception to the rape shield did not apply, rendering the contested evidence irrelevant under G.S. 8C-1, N.C. R. Evid. 412(b). The trial court therefore did not err in excluding evidence of the victim’s prior sexual behavior with persons other than defendant. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701, 2008 N.C. App. LEXIS 431 (2008).

Trial court properly sustained the State’s objection under G.S. 8C-1, N.C. R. Evid. 403, on the basis that the prejudicial effect of testimony, that defendant and his sexual assault victim previously had rented motel rooms together, outweighed its probative benefit. The evidence was not relevant and admissible under G.S. 8C-1, N.C. R. Evid. 412(b)(1) because defendant had not raised the victim’s consent as a defense. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701, 2008 N.C. App. LEXIS 431 (2008).

Trial court did not err in excluding a police report and a minor child’s Myspace website pursuant to G.S. 8C-1, N.C. R. Evid. 412, during an adjudicatory and disposition hearing because although the report was not evidence of prior sexual history, it had no probative value because it was not a false accusation that could be used to impeach; the Myspace page was admissible as impeachment evidence, but the exclusion of the evidence was harmless error because the child’s father did not offer a persuasive argument that the outcome of the hearing would have been different if the website had been admitted. In re K.W., 192 N.C. App. 646, 666 S.E.2d 490, 2008 N.C. App. LEXIS 1655 (2008).

Undisputed medical evidence indicated that a child’s having sex with another person could not have resulted in the child’s vaginal scarring, and therefore the other person’s testimony would not have tended to show that defendant did not commit the charged offenses. Therefore, the other person’s testimony as to whether he had sex with the child was not relevant and was not admissible under G.S. 8C-1, N.C. R. Evid. 412(d). State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25, 2009 N.C. App. LEXIS 112 (2009).

Although a child victim admitted, during an in camera hearing, that her boyfriend had inserted his finger in her vagina while she was partially nude in a closet with him, defendant failed to present evidence during the in camera hearing that the boyfriend’s digital penetration could have caused the internal scarring attributed to the charged offenses. That evidence was not admissible under G.S. 8C-1, N.C. R. Evid. 412(d). State v. Cook, 195 N.C. App. 230, 672 S.E.2d 25, 2009 N.C. App. LEXIS 112 (2009).

Trial court did not err in sustaining the prosecution’s objection to testimony that a child abuse victim was unsure of whether she was pregnant by defendant, who was her grandfather, or her boyfriend at the time, because the victim had already testified to this fact, and evidence that the victim had sexual relations with another man would not have shown that the alleged acts were not committed by defendant and would be unnecessarily humiliating. State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1, 2011 N.C. App. LEXIS 1740 (2011).

In a trial on sex offense charges, the trial court did not err in excluding the victim’s past sexual activity, as defendant proposed evidence about occurrences which were not close in time and proximity to the alleged crime and no evidence tied the victim’s past sexual activity or parental punishment to the subject incident. State v. Mbaya, 249 N.C. App. 529, 791 S.E.2d 266, 2016 N.C. App. LEXIS 965 (2016).

In a case in which defendant was convicted of statutory rape of a 15-year-old child and taking indecent liberties with a child, because defendant made no application to the court for a determination of the relevance of the sexual behavior about which defendant wished to question the complainant, the trial court did not conduct an in camera hearing on the issue; thus, defendant failed to establish the admissibility of evidence of the complainant’s past sexual behavior. State v. Parlier, 252 N.C. App. 185, 797 S.E.2d 340, 2017 N.C. App. LEXIS 136 (2017).

In a case in which defendant was convicted of statutory rape of a 15-year-old child and taking indecent liberties with a child, because defendant did not make an offer of proof to show what the complainant’s response to questions about her past sexual behavior would have been, he failed to preserve that issue for appellate review. State v. Parlier, 252 N.C. App. 185, 797 S.E.2d 340, 2017 N.C. App. LEXIS 136 (2017).

This rule was implicated and evidence of the victim’s sexually transmitted disease (STD) was properly excluded, because the presence of an STD denoted sexual behavior, because an STD is commonly associated with sexual activity, sexual intercourse, and was accompanied by the same type of stigma this rule was designed to prohibit.

Exclusion of Evidence Held Error. —

In a trial for rape and sexual offense against a child victim, where the only physical evidence corroborating the victim’s testimony of rape was possibly attributable to the acts of a man other than the defendant, namely, the defendant’s adult son, exclusion of evidence about defendant’s son’s acts was prejudicial to the defendant in presenting his defense to the charge of rape, and necessitated a new trial. State v. Ollis, 318 N.C. 370, 348 S.E.2d 777, 1986 N.C. LEXIS 2656 (1986).

Excluded testimony of 12-year-old rape complainant’s grandmother that she observed complainant masturbate with a washcloth and with her fingers on several occasions provided an alternative explanation for the victim’s physical condition, consistent with physician’s testimony that repeated acts of intercourse, penetration or masturbation could create the degree of irritation that prosecutrix suffered, and should have been admitted as evidence relating to whether the rape occurred. State v. Wright, 98 N.C. App. 658, 392 S.E.2d 125, 1990 N.C. App. LEXIS 436 (1990).

Defendant’s evidence, which consisted of a letter written by victim to her friend asking her to engage in sex, was evidence of conversation, not of a prior sexual act. Therefore, testimony in sexual abuse case concerning the letter was not deemed irrelevant by this rule and was improperly excluded on that basis. State v. Guthrie, 110 N.C. App. 91, 428 S.E.2d 853, 1993 N.C. App. LEXIS 407, writ denied, 333 N.C. 793, 431 S.E.2d 28, 1993 N.C. LEXIS 254 (1993).

It was error to exclude testimony which would have tended to show that the prosecuting witness was not truthful when she said she had a sexual encounter with someone other than the defendants. State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18, 1994 N.C. LEXIS 296 (1994).

Where the trial court erred by not allowing the defendant to question the complainant in the presence of the jury regarding the allegation of rape made five months earlier and subsequently withdrawn, defendant was entitled to a new trial because there was a reasonable probability that the outcome of the trial would have been different. State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525, 1996 N.C. App. LEXIS 208 (1996).

Sexual behavior of a rape complainant can be relevant if such behavior is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by a defendant; thus, defendant’s rape conviction was reversed and a new trial was granted where evidence of a victim’s sexual encounter earlier in the day of her alleged rape was improperly excluded despite its relevance to the issue of consent. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697, 2004 N.C. App. LEXIS 1779 (2004), aff'd in part and rev'd in part, 360 N.C. 145, 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005), dismissed, 379 N.C. 672, 865 S.E.2d 847, 2021 N.C. LEXIS 1231 (2021).

In a first degree rape case, although a trial court erred by excluding evidence of a consensual sexual encounter between the victim and another man before the rape, no prejudice was shown because a condom was used during the consensual encounter, the victim specifically stated that the man involved in the consensual encounter was not her attacker, defendant’s deoxyribonucleic acid evidence was found inside of the victim’s vagina, and the man involved in the consensual encounter was effectively removed as the source of the semen at issue, despite the fact that he was not tested. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565, 2014 N.C. App. LEXIS 1210 (2014).

Evidence that the victim was discovered watching a pornographic video, without anything more, was not evidence of sexual activity barred by the Rape Shield Statute, and the trial court erred in excluding it, as it was relevant to explain an alternative source of the victim’s sexual knowledge, from which she could have fabricated the allegations. State v. Rorie, 242 N.C. App. 655, 776 S.E.2d 338, 2015 N.C. App. LEXIS 695 (2015).

Trial court’s determination that the victim’s prior allegations and inconsistent statements were covered by this rule was error, as although the statements involved the mention of sexual behavior, they were not with the purview of this rule and may have been admissible to attack the victim’s credibility if they were not more prejudicial than probative under G.S. 8C-1, N.C. R. Evid. 403. State v. Rorie, 242 N.C. App. 655, 776 S.E.2d 338, 2015 N.C. App. LEXIS 695 (2015).

Even though the trial court erred by refusing to allow defense counsel to cross-examine a victim about statements he allegedly made to his wife and the police that he was addicted to porn, had an affair, and that he could not control his behavior because of defendant’s abuse of him, because the evidence was relevant and was not barred by the Rape Shield Act, defendant was not prejudiced because the evidence of defendant’s guilt was overwhelming. State v. Goins, 244 N.C. App. 499, 781 S.E.2d 45, 2015 N.C. App. LEXIS 1037 (2015).

Court of appeals improperly ruled the trial court did not err in excluding evidence of the complainant’s sexually transmitted diseases (STDs) because defendant’s offer of proof indicated the evidence fell within the exception set forth in subsection (b)(2); the evidence was an essential part of the proposed testimony of defendant’s expert regarding the presence of STDs in the victim and the absence of those same STDs in defendant and permitted an inference defendant did not commit the crime. State v. Jacobs, 370 N.C. 661, 811 S.E.2d 579, 2018 N.C. LEXIS 215 (2018).

Because evidence of the complainant’s sexually transmitted diseases (STDs) diminished the likelihood of a three-year period of sexual relations between defendant and the complainant, the trial court erred in excluding the evidence pursuant to the rule; there was a reasonable possibility that, had the error not been committed, a different result would have been reached at trial. State v. Jacobs, 370 N.C. 661, 811 S.E.2d 579, 2018 N.C. LEXIS 215 (2018).

Exclusion of Evidence Held Error In Part. —

Trial court erred by concluding that the evidence about the complainant was inadmissible per se because it did not fall within one of the four categories in the Rape Shield Statute, and the trial court should have looked beyond the four categories to determine whether the evidence was relevant to show the complainant’s motive to falsely accuse defendant and, if so, conducted a balancing test; this error was prejudicial with respect to defendant’s conviction of the 2008 incident, as the State’s case was based almost entirely on the complainant’s testimony, but he failed to show how the error prejudiced him regarding his conviction based on the 2006 incident. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330, 2015 N.C. App. LEXIS 516 (2015).

Error in the Face of Overwhelming Evidence to Convict. —

Even if evidence of victim’s alleged past sexual behavior was improperly excluded, the defendant failed to show, in view of the testimony of seven other juvenile sexual abuse victims, that a different result would have resulted from its inclusion. State v. Trogden, 135 N.C. App. 85, 519 S.E.2d 64, 1999 N.C. App. LEXIS 917 (1999).

Failure to Conduct In Camera Hearing Held Harmless. —

Where all of the testimony complained of by defendant related to sexual behavior between complainant and defendant, even if it was assumed arguendo that the trial court erred by failing to conduct the required in camera hearing before admitting such testimony, the error was harmless. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Victim Not Prohibited from Willingly Testifying. —

Neither this rule nor its predecessor statute, G.S. 8-58.6, prohibited a rape victim from willingly testifying as to her lack of sexual involvement for purposes of corroboration. State v. Stanton, 319 N.C. 180, 353 S.E.2d 385, 1987 N.C. LEXIS 1892 (1987).

Defendant could present evidence of previous acts of bondage between the complainant and defendant, sexual acts on a leather couch, complainant experiencing pain during previous acts of intercourse, a sexual act on a piano stool, and watching pornographic movies because it was evidence of sexual act pertinent to the defense that the complainant consented to the sexual act that was the basis of the charge. State v. Jenkins, 115 N.C. App. 520, 445 S.E.2d 622, 1994 N.C. App. LEXIS 715, writ denied, 337 N.C. 804, 449 S.E.2d 752, 1994 N.C. LEXIS 604 (1994).

Attorney Held in Contempt for Violation of Rape Shield Law. —

Defense counsel was found guilty of criminal contempt, pursuant to G.S 5A-11(a), because competent evidence supported the trial court’s finding that counsel violated the North Carolina Rape Shield Statute, G.S. 8C-412, in that counsel asked the complainant, in a case resulting from a charge of rape, about a possible prior instance of rape between the complainant and the complainant’s cousin, without first addressing the relevance and admissibility of that question during an in camera hearing. Furthermore, the violation was willful and grossly negligent. State v. Okwara, 223 N.C. App. 166, 733 S.E.2d 576, 2012 N.C. App. LEXIS 1187 (2012).

Court disagreed that an informal offer of proof is per se insufficient in the context of a rape shield law in camera hearing; there is nothing in the rule to suggest that an offer of proof made thereunder must be made formally, there may be situations where a trial court may not want to require a witness to recount an episode, and to the extent that certain cases could be read to provide a per se rule prohibiting an informal offer of proof, they conflict with North Carolina Supreme Court’s decisions disavowing a per se rule. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330, 2015 N.C. App. LEXIS 516 (2015).

Preservation for Review. —

Offer of proof made by defendant’s counsel was sufficient for the court to conduct appellate review, as it was clear that counsel had interviewed each witness and knew first hand the content of their testimonies, and he was unambiguous about how they would testify, and the trial court clearly understood the nature of the testimonies and decided the issue based on the offer of proof. State v. Martin, 241 N.C. App. 602, 774 S.E.2d 330, 2015 N.C. App. LEXIS 516 (2015).

II.Decisions under Former G.S. 8-58.6

Editor’s Note. —

The cases below were decided under former G.S. 8-58.6 and previous statutory provisions.

Codification of Rule of Relevance. —

Former G.S. 8-58.6 was nothing more than a codification of this jurisdiction’s rule of relevance as that rule specifically applies to the past sexual behavior of rape victims. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110, 1980 N.C. LEXIS 1141 (1980).

Constitutionality. —

Former G.S. 8-58.6, referred to as the rape victim shield statute, did not violate a rape defendant’s constitutional right to confront the witnesses against him by preventing him from automatically questioning the victim about her prior sexual experience, since (1) there is no constitutional right to ask a witness questions that are irrelevant, (2) the statute was primarily procedural in its impact and application and does not alter any of the defendant’s substantive rights, and (3) there were valid policy reasons, aside from questions of relevance, which support the statute. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110, 1980 N.C. LEXIS 1141 (1980).

Former G.S. 8-58.6 changed the rule of evidence in such a way that matters collateral to the issues on trial could not be introduced into evidence, and this change in the rule of evidence did not violate a defendant’s constitutional right to cross-examine witnesses appearing against him. State v. Porter, 48 N.C. App. 565, 269 S.E.2d 266, 1980 N.C. App. LEXIS 3287 (1980).

Inferences of prior sexual activity by a rape victim with third persons, without more, are irrelevant to the defense of consent in a rape trial. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110, 1980 N.C. LEXIS 1141 (1980).

Evidence of Discussion Between Complainant and Defendant Held Inadmissible. —

In a prosecution for rape, evidence of a discussion between complainant and defendant concerning complainant’s sexual problems was not admissible, since such discussion did not constitute sexual behavior or activity between complainant and defendant. State v. Smith, 45 N.C. App. 501, 263 S.E.2d 371, 1980 N.C. App. LEXIS 2656 (1980).

Evidence of Different Semen Stains on Victim’s Clothing. —

Former G.S. 8-58.6 was not unconstitutionally applied to defendant when the trial court excluded evidence that three different semen stains were found on clothing worn by an alleged rape victim, since the inference raised by such evidence, i.e., that the victim had had sex with two persons other than defendant at some time prior to the sexual acts in question, was not probative of the victim’s consent to those acts. State v. Fortney, 301 N.C. 31, 269 S.E.2d 110, 1980 N.C. LEXIS 1141 (1980).

Evidence of Prosecutrix’ Moral Environment Held Irrelevant Where Defendant Denied Act. —

Whether the prosecutrix in a prosecution for second degree rape lived in an environment of sexual immorality or in a cloistered convent had no relevance to the issues in a case where defendant denied that any act of intercourse or other assault took place. State v. McLean, 294 N.C. 623, 242 S.E.2d 814, 1978 N.C. LEXIS 1293 (1978) (decided prior to the effective date of this section) .

Decisions of Trial Court at Voir Dire Hearing Held Proper. —

In a prosecution for assault with intent to commit rape, the trial court did not err in refusing to permit defendant to testify at a voir dire hearing to determine whether testimony as to prior conduct of the prosecutrix was admissible as evidence of a pattern of sexual behavior closely resembling defendant’s version of the alleged encounter, and in postponing its ruling on the admissibility of the testimony of prior conduct until after it had heard defendant’s version of the events in question. State v. White, 48 N.C. App. 589, 269 S.E.2d 323, 1980 N.C. App. LEXIS 3264 (1980).

I.General Consideration

Prior to the adoption of the North Carolina Rules of Evidence, the test for whether a witness was competent to testify was whether the witness understood the obligation of an oath or affirmation and had sufficient capacity to understand and relate facts which would assist the jury in reaching its decision. There was no fixed age limit below which a witness was incompetent to testify. The determination of the competency of a witness was entrusted to the discretion of the trial judge, and his determination was conclusive on appeal absent a showing of an abuse of discretion. State v. Gordon, 316 N.C. 497, 342 S.E.2d 509, 1986 N.C. LEXIS 2154 (1986).

The purpose of this section is to exclude evidence of statements of deceased persons since those persons are not available to respond. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

This rule makes no change in the basic rules of competency as they have been stated by the North Carolina Supreme Court. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478, 1986 N.C. App. LEXIS 2603 (1986).

The general rule is that every person is competent to testify unless determined to be disqualified by the Rules of Evidence. State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Lack of understanding of the nature of an oath would have been grounds for disqualification of a person as a witness prior to the adoption of the Rules of Evidence; however, this rule does not mention the ability to understand the nature of an oath, but provides that a person may be disqualified as a witness when he is incapable of expressing himself concerning the matter or when he is incapable of understanding the duty of a witness to tell the truth. State v. Baker, 320 N.C. 104, 357 S.E.2d 340, 1987 N.C. LEXIS 2167 (1987).

Subsection (b) establishes a minimum standard for competency of a witness. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Subsection (c) of this rule is a compromise between the traditional “Dead Man’s Act” and complete abolition. Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519, 1987 N.C. App. LEXIS 2627 (1987).

As to the applicability of subsection (c) of this rule, see Hunt v. Hunt, 85 N.C. App. 484, 355 S.E.2d 519, 1987 N.C. App. LEXIS 2627 (1987).

Hearsay Defined. —

Whenever the assertions of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay. If offered for any other purpose, it is not hearsay. DeHart v. R/S Fin. Corp., 78 N.C. App. 93, 337 S.E.2d 94, 1985 N.C. App. LEXIS 4264 (1985).

A witness’ testimony is incompetent under the dead man’s statute if the witness is a party or is interested in the event, his or her testimony relates to a personal communication with the decedent, the action is against a personal representative of the decedent or a person deriving title or an interest from, through, or under the decedent, or the witness is testifying in his or her own behalf. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

The competency of a witness is determined at the time the witness is called upon to testify. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478, 1986 N.C. App. LEXIS 2603 (1986).

Defendant Who Was Competent to Testify Held Competent to Confess. —

Where there was no dispute that the defendant was capable of expressing herself concerning the matter so that she could be understood, and there was no evidence that she was incapable of understanding the duty of a witness to tell the truth, the defendant would have been competent to testify; therefore, she was competent to confess. State v. Shytle, 323 N.C. 684, 374 S.E.2d 573, 1989 N.C. LEXIS 8 (1989).

Defendant was properly found competent to confess; therefore, even if she was not fully capable of appreciating the seriousness of the confession, this did not make it inadmissible if it otherwise had the indicia of reliability. State v. Shytle, 323 N.C. 684, 374 S.E.2d 573, 1989 N.C. LEXIS 8 (1989).

The test of competency is the capacity of the proposed witness to understand and to relate under oath the facts which will assist the jury in determining the truth with respect to the ultimate facts. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478, 1986 N.C. App. LEXIS 2603 (1986); State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299, 1986 N.C. App. LEXIS 2748 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791, 1987 N.C. LEXIS 2140 (1987).

Competency under both the new rules and the case law prior to their adoption is the capacity of the proposed witness to understand and relate, under the obligation of an oath, facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide. State v. Hicks, 319 N.C. 84, 352 S.E.2d 424, 1987 N.C. LEXIS 1826 (1987).

Subsection (b) of this rule does not ask how bright, how young, or how old a witness is. Instead, the question is: does the witness have the capacity to understand the difference between telling the truth and lying? State v. Davis, 106 N.C. App. 596, 418 S.E.2d 263, 1992 N.C. App. LEXIS 547 (1992).

The trial court applied an erroneous legal standard in denying respondent father’s request to call the children as witnesses because the focus of the voir dire was incorrectly directed to the effect the children’s testifying would have on their mental health, rather than upon the ability of the children to understand their obligation to tell the truth and to relate events which they may have seen, heard or experienced; rather than determining whether all or any of them were competent to testify under this section, the trial court disqualified them as being “unavailable,” apparently relying upon the definition of “unavailability” contained in G.S. 8C-1, Rule 804(a)(4), but the question of a potential witness’ unavailability becomes relevant only with respect to the admissibility of his hearsay declarations. In re Faircloth, 137 N.C. App. 311, 527 S.E.2d 679, 2000 N.C. App. LEXIS 327 (2000).

Ambiguity or Vagueness of Witness on Voir Dire. —

It matters not that some of a witness’ answers during voir dire are ambiguous or vague or that a witness is unable to answer some of the questions which are put to him. Such performance is not unusual when the witness is a young child. The same applies for a mentally retarded individual. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, 1987 N.C. App. LEXIS 2586, writ denied, 320 N.C. 174, 358 S.E.2d 65, 1987 N.C. LEXIS 2182 (1987).

Effect of Drug Use on Competency. —

A witness is not incompetent to testify on the basis of drug use alone, but only insofar as such use affects his ability to be understood or to respect the importance of veracity. State v. Fields, 315 N.C. 191, 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Where the effect of drug use is concerned, the question is more properly one of the witness’ credibility, not his competence. As such, it is in the jury’s province to weigh his evidence, not in the court’s to bar it. State v. Fields, 315 N.C. 191, 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Witness who participated in a controlled buy with defendant was allowed to testify although he was impaired by controlled substances during his testimony as the witness was not incompetent because defendant did not show that the witness was incapable of expressing himself or incapable of understanding his duties to tell the truth; the other evidence, including a detective’s testimony and a videotape, entirely corroborated the witness’s testimony against defendant; and evidence of the witness’s impairment was presented to the jury, and thus the jury was free to determine whether they found the witness’s testimony credible. State v. Burgess, 271 N.C. App. 302, 843 S.E.2d 706, 2020 N.C. App. LEXIS 359 (2020).

Competency of Child to Testify. —

The competency of a child witness to testify at trial is not a proper subject for stipulation of counsel absent the trial judge’s independent finding pursuant to personally examining or observing the child on voir dire. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551, 1985 N.C. LEXIS 1984 (1985).

There is no age below which one is incompetent, as a matter of law, to testify. State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299, 1986 N.C. App. LEXIS 2748 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791, 1987 N.C. LEXIS 2140 (1987); State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988).

In sexual offense case, fact that six-year-old victim testified without objection that she was six years old and had one brother who was eight years old, named the school she attended, gave her teacher’s name and where she lived, and said that she was going to tell the truth clearly supported the trial judge’s conclusion that the six-year-old was competent to testify; thus, the trial judge’s failure to conduct a voir dire examination to establish the child’s competency was not prejudicial error. State v. Gilbert, 96 N.C. App. 363, 385 S.E.2d 815, 1989 N.C. App. LEXIS 992 (1989).

Trial court did not abuse its discretion in finding the four year old victim competent to testify and allowing her to testify to sexual offenses allegedly occurring when she was two. State v. Ward, 118 N.C. App. 460, 455 S.E.2d 666 (1995).

Although child was two-and-a-half years at the time of her mother’s murder she had the capacity to testify at age five. State v. Reeves, 337 N.C. 700, 448 S.E.2d 802, 1994 N.C. LEXIS 578 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860, 1995 U.S. LEXIS 3322 (1995).

It was not error to allow five year old child to testify to the jury while sitting on her stepmother’s lap. State v. Reeves, 337 N.C. 700, 448 S.E.2d 802, 1994 N.C. LEXIS 578 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860, 1995 U.S. LEXIS 3322 (1995).

The court did not abuse its discretion in ruling that a mentally retarded rape victim was incapable of effectively communicating at trial and was therefore incompetent to testify. State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283, 1998 N.C. App. LEXIS 1308 (1998), cert. denied, 352 N.C. 362, 544 S.E.2d 562, 2000 N.C. LEXIS 587 (2000), writ denied, 644 S.E.2d 562, 2007 N.C. LEXIS 282 (2007).

A six-year old sexual abuse victim was not competent to testify, where the trial court conducted an extensive voir dire of the child to determine his ability to tell the truth, and he consistently exhibited that he did not know the truth from falsehood. State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84, 1998 N.C. App. LEXIS 1005 (1998), aff'd in part, modified, 351 N.C. 413, 527 S.E.2d 644, 2000 N.C. LEXIS 235 (2000).

Despite the fact that the three-year-old child testified that telling the truth was bad at one point, he was found competent to testify where he later demonstrated his understanding that telling the truth was what you do and then promised to tell only the truth. State v. Meadows, 158 N.C. App. 390, 581 S.E.2d 472, 2003 N.C. App. LEXIS 1189 (2003).

Offer of Proof as to Child’s Competency. —

Because no evidence was presented as to the minor child’s competency as a witness, the trial court, by not allowing an offer of proof, had no basis upon which to make such a determination; the trial court quashed the subpoena and refused to allow any sort of offer of proof based upon potential trauma to the child, and while her well-being was an important concern, it was a not a legal basis to disregard the mandate within the rule. Counsel had to be allowed to make an offer of proof under these facts. Daly v. Kelly, 272 N.C. App. 448, 846 S.E.2d 830, 2020 N.C. App. LEXIS 537 (2020).

Further findings were required because the juvenile court disqualified the four-year-old victim without making an appropriate inquiry into her competency to testify. A short voir dire based on five questions, only one of which she did not answer, was insufficient to allow the juvenile court to determine whether she was incapable of expressing herself concerning the matter or incapable of understanding the duty to tell the truth. State v. Pugh, 138 N.C. App. 60, 530 S.E.2d 328, 2000 N.C. App. LEXIS 551 (2000).

“Unavailable” Witness. —

Where four year old victim’s testimony was so limited and she was neither cooperative nor responsive, the victim was in fact “unavailable” for purposes of testifying at trial, and combining her de facto unavailability with the evidentiary importance of her previous statements, the hearsay testimony of the witness to these statements was “necessary” under the two-part hearsay test. State v. Ward, 118 N.C. App. 460, 455 S.E.2d 666 (1995).

Failure of Court to Personally Determine Competency of Child. —

In a prosecution charging defendant with first-degree rape, incest, and taking indecent liberties with his three-year-old daughter, the trial judge’s adoption of counsel’s stipulation in concluding that the child victim was incompetent to testify, where he never personally examined or observed the child’s demeanor in responding to questions during a voir dire examination, was reversible error, where highly prejudicial testimony was erroneously admitted pursuant to G.S. 8C-1, Rules 803 (24) and 804 (b)(5) on the basis of this improperly based conclusion. State v. Fearing, 315 N.C. 167, 337 S.E.2d 551, 1985 N.C. LEXIS 1984 (1985).

Despite child prosecutrix’s lack of understanding of an obligation to tell the truth from a religious point of view, because she stated on direct examination an understanding of the difference between truth and lies and the importance of telling the truth, she exhibited a capacity to understand and relate facts and a comprehension of the difference between the truth and untruth. State v. Weaver, 117 N.C. App. 434, 451 S.E.2d 15, 1994 N.C. App. LEXIS 1264 (1994).

Effect of Mental Illness on Competency. —

Even when the trial court finds that a witness is presently suffering from a mental illness, the witness may testify if he has sufficient understanding to apprehend his obligation to tell the truth and is able to give a correct account of the matters he seeks to testify about. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478, 1986 N.C. App. LEXIS 2603 (1986).

An interested party may testify to oral communications with a decedent or lunatic where his mental capacity is in issue, the interested party expresses an opinion thereon, and the basis for the opinion includes the communications and personal transactions testified to. Peterson v. Finger, 82 N.C. App. 743, 348 S.E.2d 351, 1986 N.C. App. LEXIS 2618 (1986).

Dead Man’s Act Protections. —

Estate did not waive the protections of the Dead Man’s Statute, G.S. 8C-1, N.C. R. Evid. 601(c), when it timely objected at the widow’s deposition to oral communications between the decedent and the widow, moved to strike the incompetent parts, and later admitted the deposition into evidence and did not object at a partial summary judgment hearing regarding the deposition. Since the oral communications in the deposition were offered by the widow, and not the estate, the estate’s conduct at the deposition of objecting and moving to strike properly preserved those protections. Estate of Redden v. Redden, 194 N.C. App. 806, 670 S.E.2d 586, 2009 N.C. App. LEXIS 33 (2009).

Failure to Make Findings as to Competency. —

Trial court did not commit reversible error by failing to make findings of fact and more detailed conclusions concerning competency of child victim to testify. State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988).

When the evidence clearly supports a conclusion that the witness is competent, the trial court’s failure to conduct a voir dire inquiry and make specific findings and conclusions concerning the witness’ competency is, at worst, harmless error. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Although the trial court did not make a specific finding as to whether a nine-year-old child was capable of expressing herself concerning matters as to which she was to testify, the findings made by the trial court and its conclusion that she was competent clearly establish that the trial court exercised its discretion in declaring her competent as a witness. State v. Eason, 328 N.C. 409, 402 S.E.2d 809, 1991 N.C. LEXIS 246 (1991).

Finding of Competency Upheld. —

Trial court did not abuse its discretion in finding 12-year-old child with a low IQ competent to testify, where the court considered and determined the overall competency of the witness as to his mental capacity and his age as these factors affected his ability to understand and relate under oath facts concerning the charge of first-degree sexual offense committed upon him. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Refusal of the trial court to disqualify ten-year-old victim and her nine-year-old brother upheld. State v. Rhodes, 321 N.C. 102, 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

Trial court’s exercise of its discretion in ruling that four-year-old child victim was competent to testify would be upheld. State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988).

Testimony of four-year-old victim of rape held to meet the standards of this rule. State v. Everett, 98 N.C. App. 23, 390 S.E.2d 160, 1990 N.C. App. LEXIS 309 (1990), rev'd, 328 N.C. 72, 399 S.E.2d 305, 1991 N.C. LEXIS 2 (1991).

Testimony of victim, who was one month short of her 14th birthday, observed by the trial court, fully supported the conclusion that she was not disqualified as a witness for failure to understand her duty to tell the truth as a witness. Assuming arguendo that the trial court erred in failing to conduct a voir dire examination of the witness and in failing to make specific findings and conclusions as to the witness’ competency, any such error was harmless. State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Finding of Incompetency Upheld. —

The trial judge did not abuse her discretion by finding that witness was incapable of remembering, understanding, and relating to the jury matters of detail concerning holographic will in question, where the events and conversations which the witness would have testified about occurred during the period of 1979-1982, and where the witness could not remember having twice been involuntarily committed during that same period of time. In re Will of Leonard, 82 N.C. App. 646, 347 S.E.2d 478, 1986 N.C. App. LEXIS 2603 (1986).

Where the trial judge conducted a competency hearing at which he was able to observe for himself a five-year-old’s competence to be a witness, and the record showed that the child could not respond to simple questions about basic facts in her life, and was contradictory, uncommunicative, and frightened, there was no error in the court’s finding the child incompetent to testify. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249, 1988 N.C. LEXIS 697 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009, 1989 U.S. LEXIS 2711 (1989).

Discretion of Trial Court. —

The determination that a witness is competent to testify is within the discretion of the trial court, which has the opportunity itself to observe the comportment of the witness. State v. Fields, 315 N.C. 191, 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

The competency of a witness is a matter which rests in the sound discretion of the trial judge in the light of his or her examination of the observation of the particular witness. State v. Jenkins, 83 N.C. App. 616, 351 S.E.2d 299, 1986 N.C. App. LEXIS 2748 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791, 1987 N.C. LEXIS 2140 (1987); State v. Hicks, 319 N.C. 84, 352 S.E.2d 424, 1987 N.C. LEXIS 1826 (1987); State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Averments in Affidavit Violating This Rule Properly Disregarded. —

Decedent’s estate’s contention that the trial court erred by allegedly considering an affidavit because it contained statements made by a decedent and her deceased sister was without merit since to the extent the challenged affidavit contained averments that would violate N.C. R. Evid. 601(c) if admitted as evidence at a later trial, the appellate court assumed the trial court properly disregarded them. Forbis v. Neal, 361 N.C. 519, 649 S.E.2d 382, 2007 N.C. LEXIS 813 (2007).

Appellate Review of Trial Court’s Ruling. —

Absent a showing that the trial court’s ruling as to the competency of a witness could not have been the result of a reasoned decision, the ruling must stand on appeal. State v. Hicks, 319 N.C. 84, 352 S.E.2d 424, 1987 N.C. LEXIS 1826 (1987); State v. Rael, 321 N.C. 528, 364 S.E.2d 125, 1988 N.C. LEXIS 108 (1988); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

II.Persons Interested in the Event of the Action

Dead Man’s Statute. —

The North Carolina “Dead Man’s Statute”, formerly G.S. 8-51, has traditionally prohibited testimony involving both transactions and communications by individuals who would potentially benefit from the alleged statements of a deceased individual. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

The statute, or rule as now codified, is applicable only to oral communications between the party interested in the event and the deceased. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

The Dead Man’s Statute was intended as a shield to protect against fraudulent and unfounded claims. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

Affidavit, in which a nephew averred that he never took any action on behalf of his aunts without their knowledge and consent, never converted any assets to his own benefit or engaged in inappropriate conduct as attorney-in-fact for the aunts, and denied fraud, did not violate G.S. 8C-1, Rule 601. Forbis v. Neal, 175 N.C. App. 455, 624 S.E.2d 387, 2006 N.C. App. LEXIS 189 (2006), aff'd in part and rev'd in part, 361 N.C. 519, 649 S.E.2d 382, 2007 N.C. LEXIS 813 (2007).

Trial court erred in admitting the testimony of the brother’s wife about conversations she had with decedent, and about conversations she overheard between decedent and the brother; since the wife was an interested party because she stood to inherit the property the brother was seeking if his specific performance action to enforce decedent’s contract to make a will in the brother’s favor was resolved in the brother’s favor, she was barred from testifying about what a dead man had said in that regard. Taylor v. Abernethy, 174 N.C. App. 93, 620 S.E.2d 242, 2005 N.C. App. LEXIS 2281 (2005), cert. denied, 360 N.C. 367, 630 S.E.2d 454, 2006 N.C. LEXIS 233 (2006).

In a case in which a home buyer argued at trial that a promissory note release was a gratuitous transfer requiring no consideration, the trial court noted that any parol evidence that the release was intended to be a gift conveyance would have been excluded under the Dead Man’s Statute, G.S. 8C-1, N.C. R. Evid. 601, and the parties had stipulated that there would be no documentary evidence other than what an estate administrator had presented that would change the contract at all. Burton v. Williams, 202 N.C. App. 81, 689 S.E.2d 174, 2010 N.C. App. LEXIS 93 (2010).

Exception to the Dead Man’s Statute. —

With regard to a holographic will, an exception to the Dead Man’s Statute has evolved which allows beneficiaries to testify as to the three material elements of a will: the testator’s handwriting, the testator’s signature, and what the testator considered to be his place for keeping valuable players. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

Legal or Pecuniary Interest in the Outcome. —

To be disqualified as a witness interested in the event of the action, the witness must have a direct legal or pecuniary interest in the outcome of the litigation. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

A named executor is not a person interested in the event of the caveat proceeding within the meaning of the dead man’s statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

The named executor’s membership in a church, which was a beneficiary under the contested will, was too tenuous an interest to come within the meaning of the dead man’s statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Propounders and Caveators. —

In a proceeding for the probate of a will, both propounders and caveators are parties interested in the event within the meaning and spirit of subsection (c) of this section. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev’d on other grounds, 320 N.C. 738, 360 S.E.2d 801, rehearing denied, 321 N.C. 300, 362 S.E.2d 780 (1987). In accord with bound volume. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

A beneficiary under a will may not testify as to communications with the deceased, but he or she may give an opinion, based on his or her own observations, as to the issue of the decedent’s mental capacity at the time of the execution of the will and testify to transactions with the deceased as being a part of the basis of the opinion. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Subsection (c) prohibits beneficiaries from testifying as to oral communications they had with the decedent about his intent to make a new will or with regard to specific bequests to be contained in that will. In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692, 1998 N.C. LEXIS 155 (1998).

III.Testimony Not Disqualified

Child Held Competent. —

Where a child testified at the voir dire hearing that she knew what it meant to tell the truth and she knew it was bad to tell a lie, and she promised to tell just what had happened and nothing else, the fact that the child may not have told the truth in the past and was uncertain about some times and dates did not prevent her from being a competent witness. State v. Fletcher, 322 N.C. 415, 368 S.E.2d 633, 1988 N.C. LEXIS 370 (1988).

Where child’s competency to testify was not determined until after her direct testimony, this was not prejudicial error; although the better practice would have been to conduct the voir dire examination and determine competency prior to the witness’ testimony in order to avoid possible mistrial or prejudice from the admission of testimony by a witness later found incompetent, this witness was correctly determined to be competent during her testimony, and the timing of the competency finding was not prejudicial error. State v. Reynolds, 93 N.C. App. 552, 378 S.E.2d 557, 1989 N.C. App. LEXIS 249 (1989).

A child was competent to testify in a capital murder trial, where she was about five when she testified and she had been four when her mother was murdered, and although she said at the trial’s outset that it was not good to tell the truth, she thereafter responded to the prosecutor that it was not true to say that her blue dress was red, and she also stated that she knew she would get a spanking if she did something wrong, that it was wrong to tell a lie, that she knew she was in court to talk about the defendant shooting her mother, and that she wanted to tell the truth. State v. Andrews, 131 N.C. App. 370, 507 S.E.2d 305, 1998 N.C. App. LEXIS 1356 (1998).

The child victim-witness was competent to testify where it was demonstrated that she knew the difference between the truth and a lie; she indicated a capacity to understand and relate facts to the jury concerning defendant’s assaults upon her; she displayed a comprehension of the difference between truth and untruth; and she affirmed her intention to tell the truth. State v. Ford, 136 N.C. App. 634, 525 S.E.2d 218, 2000 N.C. App. LEXIS 111 (2000).

Defendant’s conviction of first-degree sexual assault on a child under the age of 13 years was affirmed and the trial court did not err when it determined that the children victims were competent to testify. State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68, 2007 N.C. App. LEXIS 72 (2007), cert. denied, 365 N.C. 337, 717 S.E.2d 384, 2011 N.C. LEXIS 728 (2011).

Four-year-old victim, who was two and one-half years old at the time of the alleged G.S. 14-202.1 incident, was competent to testify under G.S. 8C-1-601(b) as: (1) It was expected that the victim would make vague and self-contradictory answers during voir dire; and (2) Somewhat non-responsive and contradictory responses to some questions when the victim testified before the jury did not show that the victim was unable to relate facts, although they might have been proper subjects for cross-examination or a jury argument. State v. Carter, 210 N.C. App. 156, 707 S.E.2d 700, 2011 N.C. App. LEXIS 298 (2011).

Seven-Year-Old Child Competent to Testify. —

Where the voir dire record revealed that although the seven-year-old child did not understand her obligation to tell the truth from a religious point of view and had no fear of certain retribution for mendacity, she knew the difference between the truth and a lie, indicated a capacity to understand and relate facts to the jury concerning the defendant’s assaults upon her, a comprehension of the difference between truth and untruth, and her obligation to tell the truth, and affirmed her intention to do so, the victim’s testimony met the standards of this rule. State v. Hicks, 319 N.C. 84, 352 S.E.2d 424, 1987 N.C. LEXIS 1826 (1987).

Where defendant was charged with first degree rape of his seven-year-old daughter, although child answered she did not know what it meant to break a promise and did not know what an oath was, court did not abuse its discretion in finding child competent to testify, since child testified she knew what it meant to tell the truth and she knew the difference between right and wrong. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419, 1989 N.C. App. LEXIS 814 (1989).

Four-Year-Old Child Competent to Testify. —

Juvenile court did not commit plain error in admitting the testimony of a four-year-old victim, despite defendant’s argument that the victim was incompetent to testify in that she did not clearly communicate her understanding of the obligation to tell the truth or illustrate that she had the capacity to understand and relate facts since she provided inaudible responses to questions; the victim’s story was consistent and corroborated by the testimony of her mother, her brother, her doctor, and the investigating officer and the evidence sufficiently demonstrated the use of force. In re Clapp, 137 N.C. App. 14, 526 S.E.2d 689, 2000 N.C. App. LEXIS 252 (2000).

Retarded Victim Held Competent. —

A mentally retarded 13-year-old victim, whose language abilities were that of a seven-year-old, read at a kindergarten level, and functioned socially and emotionally as a four- or five-year-old, and had a poor concept of time, but remembered details accurately, was held competent to testify. State v. Swann, 322 N.C. 666, 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Officer Who Interviewed Defendant. —

Law enforcement officer who customarily spoke a different dialect of defendant’s language was competent to testify about his interview of defendant, under G.S. 8C-1, Rule 601(a), as there was little difference between the two dialects and the officer had conducted numerous interviews of individuals who spoke defendant’s dialect. State v. Aquino, 149 N.C. App. 172, 560 S.E.2d 552, 2002 N.C. App. LEXIS 122 (2002).

Witness of Low Mentality. —

The fact that the court felt the witness was of low mentality did not disqualify her, and the record did not show that the witness was either incapable of expressing herself or incapable of understanding her duty to tell the truth such that the court should have disqualified her as a witness on its own motion. State v. Cox, 344 N.C. 184, 472 S.E.2d 760, 1996 N.C. LEXIS 406 (1996).

Defendant Suffering Brain Damage Held Competent to Confess and Stand Trial. —

Defendant, who, as a result of a self-inflicted gunshot wound to the head and resulting surgery, had suffered damage to her brain which impaired her emotional response to situations, was competent to make a valid confession and stand trial; there was evidence that defendant had an I.Q. within the normal range and that she knew what the charges were and what could happen to her if she was convicted; if this did not worry or upset her because of her altered mental condition, it did not mean she did not understand these facts, and the court could find from this and other evidence that the defendant understood the nature and object of the proceedings against her and could comprehend her own situation in reference to the proceedings. State v. Shytle, 323 N.C. 684, 374 S.E.2d 573, 1989 N.C. LEXIS 8 (1989).

Witness with Illness Affecting Speech. —

Trial court did not abuse its discretion in finding competent a witness who suffered from viral encephalitis, a motor disease that affected his speech, because the witness was sufficiently audible and understandable when he repeated his testimony. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61, 2002 N.C. LEXIS 676 (2002), cert. denied, 537 U.S. 1133, 123 S. Ct. 916, 154 L. Ed. 2d 823, 2003 U.S. LEXIS 390 (2003), writ denied, 359 N.C. 284, 610 S.E.2d 382, 2005 N.C. LEXIS 32 (2005), writ denied, 656 S.E.2d 594, 2007 N.C. LEXIS 1244 (2007), writ denied, 362 N.C. 90, 2007 N.C. LEXIS 1475 (2007).

Past Mental Illness. —

Although codefendant had a past history of mental illness, the denial of the motion to preclude the witness from testifying was not error; the trial judge considered the psychiatric report from hospital which stated the witness had the capacity to proceed and determined that, in light of the fact that defendant presented no other evidence and based on his own observation of the witness, the witness was competent to testify. State v. Liles, 324 N.C. 529, 379 S.E.2d 821, 1989 N.C. LEXIS 296 (1989).

Where executor does not qualify as a person interested in the outcome of the caveat proceeding, his testimony regarding oral communications with the decedent is competent. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Where the executor drafted the will, his testimony regarding decedent’s mental capacity was properly admitted for the purpose of showing the basis for his opinion that at the crucial time decedent had the requisite mental capacity. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, 1987 N.C. App. LEXIS 2548, rev'd, 320 N.C. 738, 360 S.E.2d 801, 1987 N.C. LEXIS 2415 (1987).

Will Beneficiary Could Testify Against Self-Interest. —

Trial court properly admitted a beneficiary of both the decedent’s first will and the decedent’s second will to testify that the decedent revoked and tore up the first will, under an exception to the Dead Man’s Statute, because the beneficiary testified against the beneficiary’s own interest in that she would receive less under the second will than under the first will. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, 2003 N.C. App. LEXIS 643 (2003), rev'd, 358 N.C. 143, 592 S.E.2d 688, 2004 N.C. LEXIS 171 (2004).

Waiver of Dead Man Protections. —

Defendants, manufacturers of an amusement ride, waived any protection afforded by this rule when they deposed the mother of an injured boy regarding her conversation with the amusement ride operator who had since died, although they did not offer the testimony at trial. Breedlove v. Aerotrim, U.S.A., Inc., 142 N.C. App. 447, 543 S.E.2d 213, 2001 N.C. App. LEXIS 147 (2001).

Court of appeals could not consider the contention of the public administrator of a decedent’s estate that summary judgment should not have been granted to purchasers on the ground that their evidence of a settlement agreement with the decedent was dependent upon an oral communication between the purchasers and the decedent’s attorney, who was deceased, and that the communication was incompetent under G.S. 8C-1, N.C. R. Evid. 601(c), because the claim was not properly preserved for review pursuant to N.C. R. App. P. 10(b)(1), and even if the administrator had preserved the objection and properly assigned it as error, he waived the protection of the dead man’s statute by eliciting the testimony through interrogatories. Woods v. Mangum, 200 N.C. App. 1, 682 S.E.2d 435, 2009 N.C. App. LEXIS 1566 (2009), aff'd, 363 N.C. 827, 689 S.E.2d 858, 2010 N.C. LEXIS 200 (2010).

Redundant Testimony. —

Trial court did not err in excluding testimony of statements made by the decedent under G.S. 8C-1, N.C. R. Evid. 601(c), where the jury heard the gist of the testimony regarding the reasons the decedent removed himself from a college board, the state of his mental condition, and his relationship with his children. In re Estate of Pickelsimer, 242 N.C. App. 582, 776 S.E.2d 216, 2015 N.C. App. LEXIS 697 (2015).

IV.Decisions under Former G.S. 8-51

A.General Consideration

Editor’s Note. —

The cases below were decided under the former Dead Man’s Statute, former G.S. 8-51.

As to summary and analysis of former G.S. 8-51, see Burnett v. Savage, 92 N.C. 10, 1885 N.C. LEXIS 141 (1885); Sumner v. Candler, 92 N.C. 634, 1885 N.C. LEXIS 271 (1885); Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043, 1890 N.C. LEXIS 49 (1890); Seals v. Seals, 165 N.C. 409, 81 S.E. 613, 1914 N.C. LEXIS 281 (1914); Fidelity Bank v. Wysong & Miles Co., 177 N.C. 284, 98 S.E. 769, 1919 N.C. LEXIS 117 (1919).

Purpose of Section. —

The mischief the statute was passed to prevent was the giving of testimony by a witness interested in the event, as to a personal transaction or communication between the witness and the deceased person whose lips are sealed in death. Abernathy v. Skidmore, 190 N.C. 66, 128 S.E. 475, 1925 N.C. LEXIS 10 (1925).

The purpose of this section was to exclude evidence of a personal transaction or communication between the witness and a person who by reason of death or lunacy cannot be heard. White v. Mitchell, 196 N.C. 89, 144 S.E. 526, 1928 N.C. LEXIS 286 (1928).

The reasoning behind this section was succinctly stated: Death having closed the mouth of one of the parties (with respect to a personal transaction or communication), it is but meet that the law should not permit the other to speak of those matters which are forbidden by the statute. Men quite often understand and interpret personal transactions and communications differently, at best; and the legislature, in its wisdom, has declared that an ex parte statement of such matters shall not be received in evidence. Carswell v. Greene, 253 N.C. 266, 116 S.E.2d 801, 1960 N.C. LEXIS 642 (1960); Whitley v. Redden, 5 N.C. App. 705, 169 S.E.2d 260, 1969 N.C. App. LEXIS 1427 (1969), modified, 276 N.C. 263, 171 S.E.2d 894, 1970 N.C. LEXIS 671 (1970).

The law that an interested survivor to a personal transaction or communication cannot testify with respect thereto against the dead man’s estate was intended as a shield to protect against fraudulent and unfounded claims. It was not intended as a sword with which the estate may attack the survivor. Pearce v. Barham, 267 N.C. 707, 149 S.E.2d 22, 1966 N.C. LEXIS 1112 (1966); Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551, 1968 N.C. App. LEXIS 970 (1968).

The rule that evidence offered is admissible if it is competent for any purpose ought not to be used as a sword with which to attack a decedent’s estate by destroying the express provisions of this section. Whitley v. Redden, 5 N.C. App. 705, 169 S.E.2d 260, 1969 N.C. App. LEXIS 1427 (1969), modified, 276 N.C. 263, 171 S.E.2d 894, 1970 N.C. LEXIS 671 (1970).

When Testimony Is Incompetent Under This Section. —

This section did not render the testimony of a witness incompetent in any case unless these four questions required an affirmative answer: 1. Is the witness (a) a party to the action, or (b) a person interested in the event of the action, or (c) a person from, through or under whom such a party or interested person derives his interest or title? 2. Is the witness testifying (a) in his own behalf or interest, or (b) in behalf of the party succeeding to his title or interest? 3. Is the witness testifying against (a) the personal representative of a deceased person, or (b) the committee of a lunatic, or (c) a person deriving his title or interest from, through or under a deceased person or lunatic? 4. Does the testimony of the witness concern a personal transaction or communication between the witness and the deceased person or lunatic? Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542, 1951 N.C. LEXIS 571 (1951); Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534, 1969 N.C. App. LEXIS 1611 (1969); Ballard v. Lance, 6 N.C. App. 24, 169 S.E.2d 199, 1969 N.C. App. LEXIS 1133 (1969); Etheridge v. Etheridge, 41 N.C. App. 39, 255 S.E.2d 735, 1979 N.C. App. LEXIS 2379 (1979).

Even in instances where these four things concurred, the testimony of the witness was nevertheless admissible under an exception specified in the statute itself if the personal representative of the deceased person, or the committee of the lunatic, or the person deriving his title or interest from, through, or under the deceased person or lunatic, was examined in his own behalf, or the testimony of the deceased person or lunatic was given in evidence concerning the same transaction or communication. Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542, 1951 N.C. LEXIS 571 (1951); Brown v. Green, 3 N.C. App. 506, 165 S.E.2d 534, 1969 N.C. App. LEXIS 1611 (1969).

The testimony of a witness was incompetent under the provisions of this statute when it appeared (1) that such witness was a party, or interested in the event, (2) that his testimony related to a personal transaction or communication with the deceased person, (3) that the action was against the personal representative of the deceased or a person deriving title or interest from, through or under the deceased, and (4) that the witness was testifying in his own behalf or interest. Collins v. Covert, 246 N.C. 303, 98 S.E.2d 26, 1957 N.C. LEXIS 410 (1957); Godwin v. Wachovia Bank & Trust Co., 259 N.C. 520, 131 S.E.2d 456, 1963 N.C. LEXIS 623 (1963).

Reasons for Exclusion. —

The exclusion of such testimony rested not merely upon the ground that the dead man could not have a fair showing, but upon the broader and more practical ground that the other party to the action had no chance by the oath of the relevant witness to reply to the oath of the party to the action. In re Will of Mann, 192 N.C. 248, 134 S.E. 649, 1926 N.C. LEXIS 273 (1926).

Courts were not disposed to extend the disqualification of a witness under this section to those not included in its express terms. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156, 1952 N.C. LEXIS 354 (1952); Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258, 1971 N.C. App. LEXIS 1350 (1971).

The provisions of this section could be waived by the adverse party. Andrews v. Smith, 198 N.C. 34, 150 S.E. 670, 1929 N.C. LEXIS 398 (1929).

Where an administrator brought proceedings under former G.S. 1-569 et seq., to examine a defendant to discover assets of the estate of the deceased, the administrator waived the provisions of this section and the testimony thus taken could be introduced by the defendant in his own behalf. Andrews v. Smith, 198 N.C. 34, 150 S.E. 670, 1929 N.C. LEXIS 398 (1929).

If the plaintiffs at a former trial called the defendant as an adverse witness, examined her in detail about her relations with deceased, such examination would seem to be a waiver of this section and would open the door for the defendant to testify in another trial in respect to the matters about which the plaintiffs examined her. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540, 1956 N.C. LEXIS 412 (1956).

Where a party claiming under a deceased person examined the attorney for the deceased in respect to the execution and delivery of deeds to the land in controversy and the consideration therefor, such examination constituted a waiver of this section in respect to communications or transactions with decedent, and the other party was entitled to cross-examine the attorney as to such transactions. However, the waiver did not apply to other and independent transactions. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540, 1956 N.C. LEXIS 412 (1956).

Where the plaintiffs adversely examined the defendant for the purpose of obtaining evidence for use in the trial as provided in former G.S. 1-568.1 through 1-568.16, that examination was a waiver of the protection afforded by this section to the extent that either party might use it upon the trial. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540, 1956 N.C. LEXIS 412 (1956).

But adverse examinations of defendant in regard to transactions with decedent, which examinations were taken in prior actions nonsuited, did not operate as a waiver of this section so as to render competent defendant’s testimony in subsequent trials in regard to such transactions. McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321, 1963 N.C. LEXIS 600 (1963).

Where an action to recover for injuries to one passenger was consolidated with two actions for wrongful deaths of two other passengers against the same defendant, the admission of testimony of plaintiff passenger in regard to a transaction between defendant and one of the deceased passengers did not constitute a waiver of this section in regard to the two actions for wrongful death. McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321, 1963 N.C. LEXIS 600 (1963).

Under certain circumstances the personal representative could waive the protection afforded by this section, and when this is done, it is frequently referred to as “opening the door” for the testimony of the opposing party or interested survivor. Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551, 1968 N.C. App. LEXIS 970 (1968).

Province of Court to Decide What Testimony May “Come In”. —

When a personal representative “opens the door” by testifying to a transaction, it is not in his province, but that of the court, to decide what testimony favorable to the adverse party may “come in.” Mansfield v. Wade, 208 N.C. 790, 182 S.E. 475, 1935 N.C. LEXIS 133 (1935).

This section applied to actions in tort as well as actions on contract. Boyd v. Williams, 207 N.C. 30, 175 S.E. 832, 1934 N.C. LEXIS 370 (1934). See Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96, 1955 N.C. LEXIS 532 (1955).

This section prohibited the surviving party from testifying in his own behalf with respect to personal transactions and communications between him and a deceased person in an action in which the survivor seeks to establish a claim, either in contract or in tort, against the estate of the deceased. Carswell v. Greene, 253 N.C. 266, 116 S.E.2d 801, 1960 N.C. LEXIS 642 (1960).

Itemized and Verified Accounts. —

Section 8-45, relating to itemized and verified accounts, was subordinate to this section. See William M. Lloyd & Co. v. Poythress, 185 N.C. 180, 116 S.E. 584, 1923 N.C. LEXIS 48 (1923).

Testimony Not Barred by Section. —

Where a widow was entitled during her widowhood to the profits on the land devised by her deceased husband, but not to his moneys commingled therewith in a deposit in a bank, and she died devising the total amount of the deposit: Held, testimony as to her receipt of the money from the crops was competent, not falling within the provisions of this section, and did not affect the title to other money owned by her husband at his death and given to her for life by his will. White v. Mitchell, 196 N.C. 89, 144 S.E. 526, 1928 N.C. LEXIS 286 (1928).

Conversations with Living Persons. —

Where the widow under the terms of the will of her husband could only dispose of the moneys in the bank to her credit, and not such as could at her death pass to the remainderman under his will, it could be shown by disinterested witnesses as to what part passed under the widow’s will, as not objectionable evidence under this section based upon conversations with other living parties interested under the husband’s will. White v. Mitchell, 196 N.C. 89, 144 S.E. 526, 1928 N.C. LEXIS 286 (1928).

Testimony of conversations with party to action wherein witness related statements of decedent is not in contravention of this section. Allen v. Allen, 213 N.C. 264, 195 S.E. 801, 1938 N.C. LEXIS 66 (1938).

Rehearsal of Conversation. —

Direct evidence of a conversation and understanding with the plaintiff’s testator was, under this section, incompetent, but a rehearsal of that conversation was a part of the res gestae, and admissible. Gilmer v. McNairy, 69 N.C. 335, 1873 N.C. LEXIS 236 (1873).

Personal letters written by decedent to his granddaughter, one of the propounders of his will, were held admissible over the objection that they constituted personal transactions with the deceased which were prohibited by the “dead man’s statute.” In re Will of McDowell, 230 N.C. 259, 52 S.E.2d 807, 1949 N.C. LEXIS 608 (1949).

Testimony to Prove Time When Act Was Done. —

Where the act of the widow’s execution of dissent to the will and the delivery of such dissent by her to the court was established by evidence, an interested party could testify, after the death of the widow, as to the time she saw the widow file the dissent in the clerk’s office, the testimony being offered not for the purpose of proving the widow’s execution of the dissent but only to establish that the act was done within the time allowed. Philbrick v. Young, 255 N.C. 737, 122 S.E.2d 725, 1961 N.C. LEXIS 687 (1961).

Record Evidence. —

While testimony as to personal transactions with the deceased payee of a note would be incompetent to establish defenses to the note over the objection of the personal representative of the payee, record evidence tending to establish such defenses was not precluded by this section. Flippin v. Lindsey, 221 N.C. 30, 18 S.E.2d 824, 1942 N.C. LEXIS 380 (1942).

The death certificate of the daughter intestate recorded no transaction between the child’s mother and the doctor, and even had that been the case, record evidence did not fall within the ban of this section. Spillman v. Forsyth Mem. Hosp., 30 N.C. App. 406, 227 S.E.2d 292, 1976 N.C. App. LEXIS 2282 (1976).

Testimony Competent as to Only One of Two Defendants Was Admissible. —

When there was more than one defendant, testimony which was competent as to one party should not have been excluded by virtue of this section because it was not competent against another party in the suit. Lamm v. Gardner, 250 N.C. 540, 108 S.E.2d 847, 1959 N.C. LEXIS 676 (1959); Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258, 1971 N.C. App. LEXIS 1350 (1971).

Instruction as to Use of Section Cannot Be Obtained by Declaratory Judgment. —

In an action instituted under the Declaratory Judgment Act the court had no authority to instruct a litigant whether to take advantage of the provision of this section, upon the hearing of the cause upon its merits, since such instructions upon a question of procedure do not fall within the purview of the act. Redmond v. Farthing, 217 N.C. 678, 9 S.E.2d 405, 1940 N.C. LEXIS 321 (1940).

B.Parties to the Action

A member of the board of county commissioners was not a competent witness as to transactions with the defendant’s intestate in a suit by the board. Commissioners of Forsyth v. Lash, 89 N.C. 159, 1883 N.C. LEXIS 204 (1883).

A principal debtor, who was a party to an action to foreclose a mortgage given by his sureties as security for the loan, was an incompetent witness to a contract with the deceased creditor. Benedict v. Jones, 129 N.C. 475, 40 S.E. 223, 1901 N.C. LEXIS 102 (1901).

A defendant executor could not testify concerning a land transaction between himself and the intestate in a suit brought by creditors of the estate to subject the land alleged to have been fraudulently conveyed to the defendant by the intestate. State ex rel. Bryant & Bro. v. Morris, 69 N.C. 444, 1873 N.C. LEXIS 257 (1873); Grier v. Cagle, 87 N.C. 377, 1882 N.C. LEXIS 82 (1882).

Guardian. —

Testimony of a guardian, suing an executor to establish a gift made by testatrix to the guardian’s ward, as to what occurred between the testatrix and executor, was admissible as against the objection that the guardian could not testify as to any communication or transaction between himself and testatrix. Zollicoffer v. Zollicoffer, 168 N.C. 326, 84 S.E. 349, 1915 N.C. LEXIS 46 (1915).

A “next friend” is not a party to the suit. But his liability for costs renders him incompetent to testify to the transactions or conversations here under consideration. Mason v. McCormick, 75 N.C. 263, 1876 N.C. LEXIS 269 (1876). See McLeary v. Norment, 84 N.C. 235, 1881 N.C. LEXIS 61 (1881).

Original Beneficiary of Life Insurance Policy. —

In an action by the person substituted as beneficiary in a policy of life insurance to recover the policy and proceeds as against the original beneficiary after the death of the insured, the original beneficiary was precluded by this section from testifying to the effect that she had the policy in her possession and was holding same as security for a loan to insured and for premiums paid by her on the policy, since such testimony tends to establish an oral assignment of the policy to her as security, she being a party to the action and having a direct pecuniary interest in the outcome. Harrison v. Winstead, 251 N.C. 113, 110 S.E.2d 903, 1959 N.C. LEXIS 552 (1959).

Parties in Probate of Will. —

In a proceeding for the probate of a will, both propounders and caveators were parties interested in the event within the meaning and spirit of this section. In re Will of Brown, 194 N.C. 583, 140 S.E. 192, 1927 N.C. LEXIS 156 (1927).

Under this section the beneficiary under a will could not testify to transactions and communications with the deceased, but he could in proceedings of devisavit vel non give his opinion, based on his own observations, as to the mental incapacity of the deceased at the time of the execution of the writing propounded, and then testify to personal transactions he had with him as being a part of the basis of his opinion, when evidence of this character was properly so confined upon the trial by instructions or otherwise, the weight and credibility being for the jury to determine. In re Will of Brown, 194 N.C. 583, 140 S.E. 192, 1927 N.C. LEXIS 156 (1927).

A caveator or a propounder in a will contest was a “party” to whom the prohibitions and exceptions of this section apply. In re Will of Ricks, 292 N.C. 28, 231 S.E.2d 856, 1977 N.C. LEXIS 1040 (1977).

Partner. —

Where one partner was a party to the action and was interested in the event of the action, and the other partner was dead, because his lips were sealed in death the living partner was incompetent to testify in his own behalf to any transaction or communication between himself and the intestate concerning his relationship to the copartnership and to relate certain conversations he had with deceased about the assets of the partnership. Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160, 1943 N.C. LEXIS 193 (1943).

In a suit by distributees to recover from administrators and surviving partner money found on the person of decedent and claimed by his partner, testimony of the partner, concerning his relations to the partnership and the relation of certain conversations he had with deceased about the assets of the partnership, was clearly inadmissible under this section. Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160, 1943 N.C. LEXIS 193 (1943).

Party Acting in Corporate Capacity. —

One who is a party to a suit, though in his corporate capacity, was not competent to testify as to a transaction with a deceased person. Commissioners of Forsyth v. Lash, 89 N.C. 159, 1883 N.C. LEXIS 204 (1883).

Payee of Promissory Note. —

The Dead Man’s Statute was clearly applicable to the testimony of a payee of a promissory note. In re Cooke, 37 N.C. App. 575, 246 S.E.2d 801, 1978 N.C. App. LEXIS 2805 (1978).

Surviving Occupant of Car. —

Testimony of a surviving occupant in a car to the effect that he was not driving but that one of the other occupants killed in the accident was driving at the time of the accident came within the provisions of this section in actions against the surviving occupant for wrongful death. McCurdy v. Ashley, 259 N.C. 619, 131 S.E.2d 321, 1963 N.C. LEXIS 600 (1963).

Surviving Stockholders. —

In an action by a corporation and the surviving principal stockholders against the widow of a deceased principal stockholder, involving the liability of the corporation under its contract for the purchase of the stock of the deceased stockholder, the surviving stockholders were incompetent to testify as to conversations between the stockholders modifying the stock purchase agreement in favor of the corporation or the surviving stockholders. Collins v. Covert, 246 N.C. 303, 98 S.E.2d 26, 1957 N.C. LEXIS 410 (1957).

Decedent’s Tenant. —

In an action for goods sold and delivered to the intestate, a tenant of the intestate who was furnished with goods from the plaintiff’s store, and who settled with the intestate, was competent to testify in the plaintiff’s behalf as to the intestate’s delivery to him of the merchandise because the witness was not a party to the action. Sorrell v. McGhee, 178 N.C. 279, 100 S.E. 434, 1919 N.C. LEXIS 439 (1919).

Surviving tenant by the entirety was the “survivor of a deceased person” within the meaning of this section in an action which attacked the validity of a deed by which the tenancy by the entirety was created. Gribble v. Gribble, 25 N.C. App. 366, 213 S.E.2d 376, 1975 N.C. App. LEXIS 2265, cert. denied, 287 N.C. 465, 215 S.E.2d 623, 1975 N.C. LEXIS 1139 (1975).

Party May Testify as to Transaction with Deceased Agent of Opponent. —

This section did not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E.2d 517, 1960 N.C. LEXIS 368 (1960); Tharpe v. Newman, 257 N.C. 71, 125 S.E.2d 315, 1962 N.C. LEXIS 547 (1962).

Hence, where a note was executed to two payees jointly and one of them thereafter acquired the interest of the other and sued the makers of the note, after the death of the other payee, testimony of the maker as to a contemporaneous agreement with the deceased payee, acting for himself and as agent of the other payee, that the note should not become a binding obligation until the happening of a stated contingency, was competent as to plaintiff payee’s original share of the note, even though it was incompetent as to the share acquired by him as assignee of the deceased payee. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E.2d 517, 1960 N.C. LEXIS 368 (1960).

But This Rule Applies Only Where Agent Was Not Personally Liable. —

The rule that this section did not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent was applied only in factual situations where the deceased agent was not personally liable in respect of the alleged cause of action. It had no application where the liability, if any, of the principal rested solely on the alleged tortious acts of the agent under the doctrine of respondeat superior. Tharpe v. Newman, 257 N.C. 71, 125 S.E.2d 315, 1962 N.C. LEXIS 547 (1962).

Testimony of the surviving occupant of car tending to show that the other occupant, killed in the accident, was driving at that time was incompetent in an action by the survivor against the owner of the vehicle sought to be held liable under the doctrine of agency, since the owner, after having paid such liability, would have had a right of action against the estate of the deceased, and therefore the transaction came within the spirit if not the letter of this section. Tharpe v. Newman, 257 N.C. 71, 125 S.E.2d 315, 1962 N.C. LEXIS 547 (1962).

Testimony by Agent of Adverse Party Admissible. —

In an action on an insurance policy by the son of the deceased owner, testimony of insurer’s agent that prior to his death the owner directed him to transfer the policy to the owner’s son because the owner was giving the land to his son was not precluded by this section. King v. National Union Fire Ins. Co., 258 N.C. 432, 128 S.E.2d 849, 1963 N.C. LEXIS 429 (1963).

Action to Enforce Agreement to Bequeath Property in Consideration of Services. —

Where the plaintiff, in her own right and as administratrix of her mother, sought to recover upon an alleged contract made by her mother and another person now deceased, under which her mother performed services to such other person under his agreement that he would devise and bequeath to her all of his property, it was incompetent for the plaintiff to testify to communications or transactions between her mother and such other person tending to establish her demand, for she was a party interested, within the contemplation of the statute. Brown v. Adams, 174 N.C. 490, 93 S.E. 989, 1917 N.C. LEXIS 128 (1917).

C.Persons Interested in the Event of the Action

Section Not Confined to Parties to Action. —

The provisions of this section were not confined to the parties to the action, but extended to testimony of a witness interested in the result of the action. Honeycutt v. Burleson, 198 N.C. 37, 150 S.E. 634, 1929 N.C. LEXIS 399 (1929).

Test for Disqualifying Interest. —

To determine when such interests existed as to render a person incompetent, the following rule was applied: The true test of the competency of a witness is whether he bears such a relation to the controversy that the verdict and judgment in the case may be used against him as a party in another action; if not, he is not disqualified. Jones v. Emory, 115 N.C. 158, 20 S.E. 206, 1894 N.C. LEXIS 201 (1894); Henderson v. McLain, 146 N.C. 329, 59 S.E. 873, 1907 N.C. LEXIS 50 (1907).

Nature of Interest Involved. —

This section does not disqualify every witness who, in the broadest sense of the term, is interested in the event of the action, but only such as have a direct and substantial or a direct legal or pecuniary interest in the result. Jones v. Emory, 115 N.C. 158, 20 S.E. 206, 1894 N.C. LEXIS 201 (1894); Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241, 1914 N.C. LEXIS 84 (1914); In re Gorham, 177 N.C. 271, 98 S.E. 717, 1919 N.C. LEXIS 115 (1919); Allen v. Allen, 213 N.C. 264, 195 S.E. 801, 1938 N.C. LEXIS 66 (1938); Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156, 1952 N.C. LEXIS 354 (1952).

It follows that a mere sentimental interest will not suffice. Sutton v. Walters, 118 N.C. 495, 24 S.E. 357, 1896 N.C. LEXIS 84 (1896); Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156, 1952 N.C. LEXIS 354 (1952).

And it has been held that relationship of the parties alone does not constitute the direct, legal, pecuniary interest required. See Sutton v. Walters, 118 N.C. 495, 24 S.E. 357, 1896 N.C. LEXIS 84 (1896); Porter v. White, 128 N.C. 42, 38 S.E. 24, 1901 N.C. LEXIS 326 (1901); Bennett v. Best, 142 N.C. 168, 55 S.E. 84, 1906 N.C. LEXIS 235 (1906); Walston v. Lowry, 212 N.C. 23, 192 S.E. 877, 1937 N.C. LEXIS 223 (1937).

To be disqualified as a “person interested in the event” the witness must have a direct legal or pecuniary interest in the outcome of the litigation. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258, 1971 N.C. App. LEXIS 1350 (1971).

Present Interest. —

In Isler v. Dewey, 67 N.C. 93 (1872), the court intimates that the interest necessary to disqualify is a present interest; that is, one retained by the party at the time of examination. In reaching this conclusion it was said: “Any other construction would make a statute, professedly for the removal of the incompetency of witnesses, the means of introducing new incompetencies unknown to the common law and opposed to its principles.” See Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156, 1952 N.C. LEXIS 354 (1952).

Originally this section disqualified a fourth class of persons, i. e. those who have had an interest in the subject matter of the suit, but whose interest has since ceased. This disqualification did not exist at common law, and was struck out of this section of the Code of 1883, except in the cases in which such persons still came under the third class of disqualified persons above stated. Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043, 1890 N.C. LEXIS 49 (1890).

Witness Having Dual or Alternative Interest. —

To determine the competency of a witness who has a dual or alternative interest in the event of the action, the court must decide which of the two interests was the more immediately valuable. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156, 1952 N.C. LEXIS 354 (1952).

The competency of the interested witness is limited to the same transaction as the one testified about by the administrator or the deceased, or elicited from the witness himself by the administrator. Smith v. Dean, 2 N.C. App. 553, 163 S.E.2d 551, 1968 N.C. App. LEXIS 970 (1968).

Agent of Payee of Note. —

Testimony of an endorser of a note, as to conversations with the payee’s agent, now dead, showing the consideration which induced the endorsement, was not excluded under this section, the agent not being a party interested in the event within the meaning of the statute for, although the agent guaranteed all notes to the payee, if there was a failure of consideration the payee could hold neither of the guarantors and had the endorser been liable he could not have recovered from the agent. American Agrl. Chem. Co. v. Griffin, 204 N.C. 559, 169 S.E. 152, 1933 N.C. LEXIS 194 (1933).

Agent of Third Person in Transaction with Deceased. —

Assuming that a collision between two motor vehicles was a “transaction” within the meaning of this section, then one who has acted as an agent for a third person in a transaction with a person since deceased was ordinarily competent to testify to conversations or transactions of the decedent. Brown v. Whitley, 12 N.C. App. 306, 183 S.E.2d 258, 1971 N.C. App. LEXIS 1350 (1971).

Attorney Formerly Holding Note for Collection. —

An attorney formerly holding a note for collection was not an interested party in an action on the note within the meaning of this section, prohibiting testimony by interested parties as to transactions with or declarations of a decedent. Vannoy v. Stafford, 209 N.C. 748, 184 S.E. 482, 1936 N.C. LEXIS 343 (1936).

Brother-in-Law of Decedent in Action to Recover Embezzled Funds. —

The testimony of a witness, in an action against the administrator of his deceased brother-in-law to recover certain sums obtained by the deceased on two vouchers made to a fictitious firm and embezzled by him, that he collected the vouchers for the deceased through his bank and sent the proceeds to the deceased, was not incompetent as falling within the provisions of this section, the witness not being a party in interest and having no direct, legal or pecuniary interest in the event of the action. Fort Worth & D.C. Ry. v. Hegwood, 198 N.C. 309, 151 S.E. 641, 1930 N.C. LEXIS 334 (1930).

Depositor’s Son in Action to Recover Moneys Deposited. —

In an action by the administrator of a deceased person against a bank to recover moneys deposited by the intestate, resisted on the ground that the deceased had authorized the bank to pay the money upon his son’s checks, the latter being present at the time, the son was interested in the event since he would be liable to the plaintiff if he was not authorized to draw the checks and possibly to the defendant, and his testimony was incompetent under this section, and the fact that a third person was present at the time of the transaction and testified at the trial did not affect this result. Donoho v. Wachovia Bank & Trust Co., 198 N.C. 765, 153 S.E. 451, 1930 N.C. LEXIS 476 (1930).

Draftsman of Deed Sought to Be Reformed. —

In an action for reformation of a deed to a county board of education for mistake of the draftsman in failing to insert a reversionary clause therein in accordance with the agreement between the grantors and grantee, testimony of the draftsman relating to declarations of a deceased member of the board and of the superintendent of schools, tending to show that it was agreed that the reversionary clause should be inserted, was held not precluded by this section, the draftsman not being a party interested in the event as contemplated by the statute. Ollis v. Board of Educ., 210 N.C. 489, 187 S.E. 772, 1936 N.C. LEXIS 141 (1936).

Holder of Insurance Policy. —

A policy holder in a mutual life insurance company is not disqualified as “interested in the event of the action” to testify for the company suing to cancel another policy. Mutual Life Ins. Co. v. Leaksville Woolen Mills, 172 N.C. 534, 90 S.E. 574, 1916 N.C. LEXIS 337 (1916). See also Gwaltney v. Provident Sav. Life Assurance Soc'y, 132 N.C. 925, 44 S.E. 659, 1903 N.C. LEXIS 371 (1903); Gwaltney v. Provident Sav. Life Assurance Soc'y, 134 N.C. 552, 47 S.E. 122 (1904).

Husband and Wife. —

A witness may have a very large pecuniary interest in fact, as the interest of a wife in an important lawsuit to which her husband is a party, and still be competent, while a comparatively slight legal interest will disqualify the witness. Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737, 1975 N.C. LEXIS 1168 (1975).

The prohibition against the testimony of a “person interested in the event” extends only to those having a “direct legal or pecuniary interest,” and not to the sentimental interest the husband or wife would naturally have in the lawsuit of the other. Burton v. Styers, 210 N.C. 230, 186 S.E. 248, 1936 N.C. LEXIS 65 (1936).

Where husband and wife instituted separate suits to recover, each respectively, for personal services rendered by them to defendant’s testate, it was held that each was competent to testify for the other, since neither had a direct pecuniary interest in the action of the other, and was not therefore an interested party in the other’s action within the meaning of this section, the testimony not being as to a transaction between the witnesses and the deceased, but between a third party and deceased. Burton v. Styers, 210 N.C. 230, 186 S.E. 248, 1936 N.C. LEXIS 65 (1936).

Interest of Wife in Compensation Due Husband. —

In an action against an administrator to recover the value of services which the plaintiff alleged he has rendered the deceased, the wife of the plaintiff had no interest in the event which would bar her testimony as to a transaction with the deceased, and it was competent for her to testify to the contract relied upon by her husband the plaintiff. Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241, 1914 N.C. LEXIS 84 (1914). See Price v. Askins, 212 N.C. 583, 194 S.E. 284, 1937 N.C. LEXIS 375 (1937).

Where plaintiffs acquired ownership as issue of devisee, devisee’s husband had no pecuniary legal interest in plaintiffs’ real property; therefore, his testimony as to the decedent’s devise was not incompetent under this section. Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737, 1975 N.C. LEXIS 1168 (1975).

Husband as Interested Party in Check Given Wife. —

When a check made payable to one of the intestate’s daughters and signed by the intestate was introduced in evidence to show an advancement, the daughter’s husband was held competent under this section to testify over objection that the check was given his wife as a wedding present, he having no interest in the event of the action. Likewise another daughter was permitted to testify for her sister, the transaction testified to not being between the witness and deceased, but between the witness’s sister and deceased father. Vannoy v. Green, 206 N.C. 80, 173 S.E. 275, 1934 N.C. LEXIS 110 (1934).

Husband as Interested Party in Deed Drawn by Wife. —

The husband was an interested witness in the event of the action, though not a party, when a trust deed made by his deceased wife was being attacked for the want of his joining therein; and upon the question of abandonment, his evidence, to the effect that his wife said to him, she would give him a horse if he would leave, was incompetent. The testimony of the daughter that she heard the conversation to that effect would be the “indirect testimony of an interested witness as to a transaction or communication with deceased,” and also incompetent. Whitty v. Barham, 147 N.C. 479, 61 S.E. 372, 1908 N.C. LEXIS 84 (1908).

Husband’s Interest in Wife’s Action to Recover for Services. —

A husband was not disqualified by interest from testifying in his wife’s behalf in her action to recover for services rendered a deceased person, the possibilities of his being benefited by her will or in case of her intestacy being too remote. McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244, 1915 N.C. LEXIS 429 (1915).

Husband of Decedent Grantee. —

Where the blind husband of a grantee, in a deed reserving a life estate in the grantor, was present and heard the grantor acknowledge its execution and delivery, he was a competent witness to prove such execution and delivery, his wife having died prior to the grantor and the title therefore being vested in her son, in that his evidence disclosed no personal transaction or communication and he was not a party in interest within this section. Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648, 1943 N.C. LEXIS 404 (1943).

Husband of Donee of Gift May Testify as to Declarations Made by Donor to Donee. —

The husband of the donee of a gift could testify as to directions given and declarations made by the donor to the donee, since the testimony was not in behalf of the husband or in behalf of a party succeeding to his interest nor as to a transaction or communication between him and the deceased the testimony being as to a transaction between donor and donee. Scottish Bank v. Atkinson, 245 N.C. 563, 96 S.E.2d 837, 1957 N.C. LEXIS 615 (1957).

Widower Has No Interest in Division of Wife’s Lands Among Children. —

When a husband and wife, each owning certain lands, entered into an agreement to pool their lands for division among their children, and the wife died intestate before her lands were deeded in accordance with the agreement, the husband had a life estate in her lands as tenant by the curtesy regardless of the disposition of the lands among the children, and therefore had no direct pecuniary interest in an action by the children to whom deeds were not executed to declare the heirs of another child estopped to assert an interest in the lands of their mother, and his testimony of the agreement with his wife was not precluded by this section. Coward v. Coward, 216 N.C. 506, 5 S.E.2d 537, 1939 N.C. LEXIS 29 (1939).

The interest of one who temporarily held the title to the lands in dispute prior to the defendant was a sufficient interest in the event to disqualify his testimony as to a conversation or transaction with the plaintiff’s deceased predecessor in title. Dill-Cramer-Truitt Corp. v. Downs, 201 N.C. 478, 160 S.E. 492, 1931 N.C. LEXIS 15 (1931).

A partner in intestate’s firm could not testify as to transactions or communications with intestate in an action by brokers against the estate on a claim for commissions and advancements. Fenner v. Tucker, 213 N.C. 419, 196 S.E. 357, 1938 N.C. LEXIS 104 (1938).

Nonmember of Partnership. —

Where the defendant’s liability depended upon whether he was a member of the defendant partnership at the time the firm contracted a debt, which was the subject of the action, with the plaintiff who had since died and whose administrator had been made a party to the action, a witness who was not a member of the firm was not such person interested in the result as would exclude his direct testimony, under the provisions of this section as to the payment to his own knowledge by the deceased of the partnership debts. Herring v. Ipock, 187 N.C. 459, 121 S.E. 758, 1924 N.C. LEXIS 309 (1924).

Sheriff in Action by Deputy. —

A deputy collected a sum of money on account of taxes and deposited the same with G. with instructions to pay it over to the sheriff, which was not done, and the deputy was afterwards required to pay the sheriff the sum so collected; it was held, in an action to recover the amount, brought by the deputy against the administrator of G., that the sheriff had no interest in the event of the action, and was a competent witness under this section. Allen v. Gilkey, 86 N.C. 64, 1882 N.C. LEXIS 145 (1882).

Stockholder’s Interest in Recovery on Contract of Sale. —

Where defendant’s intestate made two separate contracts with the holders of stock in a corporation to purchase their respective holdings, in an action by one of the stockholders to recover on the contract of sale the other testified that he had no claim against the estate on his contract. It was held that the witness was not interested in the event, and his testimony as to the transaction between decedent and plaintiff as to the contract of sale of plaintiff’s stock was competent under this section. Winborne v. McMahan, 206 N.C. 30, 173 S.E. 278, 1934 N.C. LEXIS 99 (1934).

Trustor’s Son Where Estate Insolvent. —

In an action involving the validity of a deed of trust, where the trustor was dead and his estate insolvent, the son of the trustor was a competent witness as to his declarations concerning the trust; the disqualification of the son under this section was removed by the insolvency of his father’s estate, for there was nothing for the children in any event of the action. Gidney v. Logan, 79 N.C. 214, 1878 N.C. LEXIS 43 (1878).