EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, February 22, 2012

Shop Smart, Shop S-Mart: Court Of Appeals Of North Carolina Finds No Reversible Error Despite Character Evidence

Like its federal counterpart, North Carolina Rule of Evidence 404(b) North Carolina Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

So, let's say that a defendant is charged with larceny by antishoplifting or inventory control device based upon a theft at Target store. And let's say that the prosecutor asks the senior asset protection specialist at the Target store what drew his attention to the defendant and his wife. Can the witness testify that he focused upon the defendant and his wife because of prior crimes that they committed consistent with Rule 404(b)? Let's look at the recent opinion of the Court of Appeals of North Carolina in State v. Colon, 2012 WL 549383 (N.C.App. 2012).

In Colon, the facts were as stated above, with Fernando Colon convicted of larceny based upon allegedly concealing blu-ray movies in the electronics department as well as two identical Norton antivirus packages at a Target store. The senior asset protection specialist at the Target store followed the couple after they left the store, notified law enforcement, and matched the items taken to discarded security items found in the women's restroom.

At trial, the specialist

was asked what drew his attention to defendant and his wife. Shakeshaft testified that through cameras surveilling the exterior of the Target store, he could see the neighboring store—Home Depot. Defendant raised an objection on grounds of relevance. When the trial court overruled defendant, Shakeshaft testified that on multiple prior occasions he had observed defendant and his wife stealing the merchandise kept externally near Home Depot's garden center. Defendant raised a general objection but, again, was overruled.

After he was convicted, Colon appealed, claiming that, inter alia, this testimony should have been deemed inadmissible under Rule 404(b). The Court of Appeals of North Carolina didn't directly answer this question, instead somewhat elliptically stating that

"Rule 404(b) state[s] 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." crime charged."

The court then found that if the admission of the specialist's testimony was error, it was harmless given the overwhelming other evidence of Colon's guilt.

But let's get back to the basic question: Was the admission of the specialist's testimony error? I think that it was. Why? I would say that it is because its only probative value was to show, "Once a thief, always a thief." The reason why the specialist suspected that the defendant and his wife were stealing items was irrelevant to the question of whether they were actually stealing in items and thsu otherwise lacking in probative value.



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