The opinion of the court was delivered by: Timmons-goodson, Judge.
Appeal by defendant from judgment entered 13 February 1996 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 24 February 1998.
Defendant Charles Michael McDonald appeals from a judgment entered on a jury verdict convicting him of robbery with a firearm. The relevant facts follow.
At trial, the State's evidence tended to show that at approximately 9:30 p.m. on the night of 28 March 1996, defendant went to Joyce Covington's house and asked one of her guests if he could "see her reefer." Covington testified that defendant appeared to be "high on something," and that when the guest showed defendant the marijuana in her possession, he took it, put it in his pocket, said "I gots to get mines," and stood up to leave. Covington, who had been standing in front of the door since defendant's arrival, refused to move when defendant started toward the door, and she scolded him for taking what was not his. Defendant became angry and told Covington's boyfriend, who was also present, to "have [his] girl to open the door before she get hurt." Covington did not move, so defendant repeated his demand. However, when she refused a second time, defendant reached into his pocket, pulled out a silver handgun, and threatened to shoot her. Covington took defendant's threat seriously and moved aside to open the door. Defendant, then, grabbed thirty-one dollars off of her television set and left the house.
At the close of the State's evidence, defendant made a motion for non-suit, which the trial court denied. Defendant did not put on any evidence, and the case, upon appropriate instructions, was submitted to the jury. The jury found defendant guilty of robbery with a dangerous weapon. From the judgment of conviction, defendant appeals.
Defendant presents four assignments of error on appeal. He contends that the trial court erred (1) in allowing evidence of a prior breaking and entering in which defendant allegedly participated, (2) in allowing statements by the prosecutor during closing arguments which defendant contends impliedly referred to his failure to testify, (3) in denying defendant's motion for non-suit at the close of the State's evidence, and (4) in allowing testimony regarding a post-arrest statement made by defendant. For the reasons stated in the following analysis, we conclude that the trial court did not err.
Defendant argues first that the trial court improperly allowed evidence of a prior breaking and entering, which he contends had no relevant purpose other than to attribute to him a criminal Disposition. We hold that by allowing this evidence, the trial court committed no prejudicial error.
Rule 404(b) of the North Carolina Rules of Evidence contains the following pertinent provisions:
Evidence of other crimes, wrongs, or acts is not admissible to prove 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.
N.C.R. Evid. 404(b). This rule permitting evidence of other crimes or wrongs is a general rule, "`subject to but one exception requiring [exclusion of the evidence] 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. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852 (1995) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). The list of permissible purposes contained in Rule 404(b) is not exclusive. Id. at 284, 457 S.E.2d at 852-53 (citing State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)). Evidence of "other crimes" is "admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime." Id. However, "[t]he connection between the evidence and its permissible purpose should be clear, and the issue on which the evidence of other crimes is said to bear should be the subject of genuine controversy." State v. McKoy, 78 N.C. App. 531, 537, 337 S.E.2d 666, 669 (1985), rev'd on other grounds, 317 N.C. 519, 347 S.E.2d 374 (1986).
In the present case, defendant filed a Motion in Limine to exclude all testimony regarding his alleged participation in an earlier breaking and entering of a dwelling owned and previously occupied by Covington. The trial court sustained the objection set forth in the motion, subject to an offer of proof by the State as to the relevancy of the testimony. The State proffered the following evidence to show Covington's state of mind at the time of the robbery: Sometime between December 1995 and the night of the robbery, Covington arrived at her house on Brewer Street, which she was in the process of vacating, and witnessed defendant and several other individuals running out of the house. She noticed that the back door window was broken, and it appeared that the trespassers had broken the window to gain entry into the house. When Covington notified the police of the break-in, she identified defendant as one of the individuals she saw fleeing from the scene. Days later, Covington encountered defendant unexpectedly at a neighbor's house, and when he saw her, he threatened to do her bodily harm for telling the police that he was one of the men who had committed the break-in. Covington testified that this threat caused her to fear defendant.
The State argued that these incidents were relevant to show that Covington was afraid of defendant and, thus, did not willingly invite him into her home or consent when he took her money on the night of the robbery. Defendant, however, elicited evidence on cross-examination of Covington showing that she borrowed money from him on the day of the robbery. Defendant argued that this evidence proved that Covington had no cause to fear him when he came to her house later that night. Based on the State's proffer, the trial court overruled defendant's objection and allowed the challenged testimony. The trial court gave the following limiting instruction after the evidence was presented:
Ladies and gentleman of the jury, I think it'll be appropriate to instruct you at this time that this event involving the alleged breaking and entering of her house on an earlier occasion is not conduct with which this Defendant is charged but I am allowing it for the purpose of explaining the relationship between this Defendant and Ms. Covington and her alleged fear of him, to explain that, her mental state.
Defendant contends that despite this instruction, the trial court erred in admitting the evidence. Defendant argues that whether Covington feared him was irrelevant, as fear is not an essential element of the offense of robbery with a dangerous weapon. We disagree.
Under section 14-87 of the North Carolina General Statutes, armed robbery is the nonconsensual taking of another's personal property in her presence or from her person by endangering or threatening her life with a firearm, where the taker knows that he is not entitled to the property and intends to permanently deprive the property from its owner. State v. Powell, 299 N.C. 95, 102, 261 S.E.2d 114, 119 (1980) (citing State v. May, 292 N.C. 644, 235 S.E.2d 178, cert. denied, 434 U.S. 928, 54 L. Ed. 2d 288 (1977)). "The gist of the offense is not the taking but the taking by force or putting in fear." Id. (citing State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed, 402 U.S. 1006, 29 L. Ed. 2d 428 (1971)). Thus, fear or intimidation is a material ...