in the Court of Appeals 25 January 2017.
by defendant from judgment entered 12 August 2015 by Judge
Paul L. Jones in Wayne County Nos. 14 CRS 055045, 15 CRS
000551 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Scott A. Conklin, for the State.
C. Rodriguez for defendant-appellant.
Williams (defendant) was charged with possession of a firearm
by a felon after officers found an AK-47 rifle in the back
seat of a vehicle and a Highpoint .380 pistol next to the
rear tire on the passenger's side. At trial, the State
offered evidence of a prior incident in which officers found
a Glock 22 pistol in a different vehicle occupied by
defendant. The trial court admitted the evidence to show
defendant's knowledge and opportunity to commit the crime
charged. At the conclusion of trial, the jury found defendant
guilty of possession of a firearm by a felon and he pleaded
guilty to attaining habitual felon status.
his conviction, defendant filed a petition for writ of
certiorari, which we allowed. Defendant argues that evidence
of the prior incident was not admissible under Rules 404(b)
and 403, and that the trial court erred each time it
instructed the jury on the limited purpose for which it could
consider the evidence. Reviewing for prejudicial error, we
hold that the trial court erred in admitting the evidence as
circumstantial proof of defendant's knowledge, and the
trial court abused its discretion in admitting the evidence
as circumstantial proof of defendant's opportunity to
commit the crime charged. We need not address defendant's
second argument regarding the court's jury instructions.
Defendant is entitled to a new trial.
November 2014 at 1:45 a.m., Officer Kenneth Prevost responded
to a "shots fired" call at the Alpha Arms
Apartments in Goldsboro. Upon his arrival, he saw defendant
and two unidentified men in the parking lot standing near a
Crown Victoria. The front passenger's door was open and
he saw defendant put something into the vehicle before
shutting the door. The two men walked away as Officer Prevost
approached but defendant remained standing on the
passenger's side of the vehicle.
Officer Prevost asked defendant if he had heard any gunshots,
defendant replied that he had not. Defendant also denied
having any weapons on him. Officer Prevost frisked defendant
and, after confirming he was unarmed, told defendant he was
free to go. As defendant walked away, Officer Prevost shined
a flashlight inside the Crown Victoria and observed an AK-47
rifle in the back seat. When he saw the rifle, he ordered
defendant to stop and placed him under arrest.
Prevost searched defendant incident to his arrest, finding
the keys to the Crown Victoria in his pants pocket. Once
backup arrived, the officers proceeded to search the vehicle.
Officer Prevost noticed a strong odor of marijuana when he
opened the passenger's side door but did not find any
marijuana inside the vehicle. The officers did find
defendant's debit card, his social security card, and a
medication bottle with defendant's name on it. Although
the vehicle was not registered to defendant, Officer Prevost
testified that he had seen defendant driving it on other
with the rifle in the back seat, the officers found a
Highpoint .380 pistol underneath the vehicle, next to the
rear tire on the passenger's side. Officer Prevost seized
the firearms and secured them in the trunk of his patrol car.
No fingerprint analysis was conducted on the rifle or pistol,
and no tests were performed to determine if they had been
fired that night.
offered evidence at trial tending to show that he had no
knowledge of the rifle and pistol recovered at the scene.
Tyrik Joyner testified that he was at the apartment complex
on 30 November 2014 with his cousin, Ty'rek Mathis.
Joyner was visiting with his "homegirl, " Shaniqua
Johnson, who lived in one of the apartments. Joyner received
a call from his uncle who had recently purchased the AK-47
and asked Joyner to hold onto the rifle while he went to the
club. His uncle dropped off the rifle and Joyner, having
nowhere else to keep it, placed it in the back seat of the
unlocked Crown Victoria. He claimed that the vehicle belonged
to Johnson, though she let other people drive it. Joyner
testified that no one fired the rifle and the shots he and
Mathis heard came from a different direction. Although Joyner
had seen defendant walking around the apartment complex
earlier that evening, defendant was not at Johnson's
apartment and was not present when Joyner placed the rifle in
the back seat.
also testified that he was with Joyner at the apartment
complex that night. Mathis was reluctantly carrying a pistol
that belonged to another cousin, who had asked Mathis to hold
it for him. Mathis and Joyner planned on going to
Johnson's apartment that night to drink and play cards
but Mathis knew that Johnson would not allow guns in her
apartment. He also testified: "I'm not no guy that,
you know, walk around with no gun." When he saw Joyner
place the rifle in the back seat of the Crown Victoria,
Mathis decided he too would leave the pistol underneath the
vehicle before heading inside. As far as he knew, the vehicle
belonged to Johnson and was driven by Johnson. Mathis
testified that he did not see defendant or the police that
night. It was only when he left Johnson's apartment later
that he realized the pistol was gone.
issues raised in defendant's petition for writ of
certiorari are based upon the admission of Rule 404(b)
evidence at trial. Officer Prevost and Sergeant Leanne Rabun
testified that they had a previous encounter with defendant
on 12 July 2013 (the "prior incident"). They
responded to a call to investigate a suspected drug
transaction between two men in the parking lot of a strip
mall. One had since left the parking lot but the other was
seen entering a white SUV. Officer Prevost arrived to conduct
a K-9 sniff of the vehicle and saw defendant, the sole
occupant, sitting in the driver's seat. The sniff led to
a subsequent search of the vehicle in which the officers
found a Glock 22 pistol with an extended magazine underneath
the driver's seat.
trial, the State argued that it was not offering the evidence
to prove conduct in conformity therewith but as independently
relevant circumstantial evidence of motive, knowledge, and
identity. Sergeant Rabun testified during voir dire
that defendant told her he was carrying the Glock 22 because
his house had been robbed which, according to the State, was
evidence of his motive to carry a firearm for protection. As
to knowledge, the State argued that the prior incident tended
to show that defendant knew the rifle and pistol were in and
around the Crown Victoria. Finally, the State asserted that
the prior incident was relevant to identify defendant as the
perpetrator because it shows "that these are his
firearms. That's a habit of his modus operandi
to have firearms."
voir dire, the trial court announced its ruling on
THE COURT: Okay. Court's going to allow that evidence in
for limited purpose of basically the fact that the officers
were familiar with him; and on a prior occasion, that being
July 12, 2013, there was a prior incident which defendant was
stopped for suspicion of some crime; and they found him in
possession of a firearm, and that's going to be the
extent of it.
the purpose for which the evidence was initially admitted is
not clear, the court subsequently denied the State's
request to ask Sergeant Rabun about the reason for which
defendant had the Glock 22, indicating that the prior
incident was not admitted to show motive.
Officer Prevost and Sergeant Rabun testified, the trial court
instructed the jury that it could only consider the evidence
as proof of defendant's knowledge:
THE COURT: . . . Ladies and Gentlemen, the Court is going to
give you a limited instruction regarding prior testimony in
this case. Evidence of other crimes is inadmissible if
it's only referenced to show the character of the
There are two exceptions, one where a specific mental
attitude, state, is an essential element of the crime
charged. Evidence may be offered of certain action,
declaration of the accused as it tends to establish the
requisite mental intent or state even though the evidence
disclosed the commission of another offense by the accused.
And two, where a guilt[y] knowledge is an essential element
of the crime charged. Evidence to be offered of such action
and declaration of an accused tend[s] to establish the
requisite guilt[y] knowledge even though the evidence reveals
commission of another offense by the accused.
Ladies and Gentlemen, the defendant cannot be convicted in
this trial for something he has done in the past unless it is
an essential element of the charge here.
during the charge conference, the trial court announced for
the first time that the evidence could also be considered as
proof of defendant's opportunity to commit the ...