703.4Other Crimes, Wrongs, or Acts [Rule 404(b)]
- Evidence of other crimes, wrongs, or acts is not admissible as character evidence to show a person’s propensity to act in conformity therewith, but the evidence may be admissible if it is offered for “other purposes.”
- Permissible other purposes stated in the rule include motive, opportunity, preparation, and absence of mistake. This list is not exclusive – any purpose other than propensity may justify admission of the evidence.
- The court must balance the probative value of the evidence against the risk of unfair prejudice, taking into account the temporal proximity and degree of similarity between the proffered evidence and the charged offense.
The Basic Rule
Rule 404(b) – Other Crimes, Wrongs, or Acts
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. Admissible evidence may include evidence of an offense committed by a juvenile if it would have been a Class A, B1, B2, C, D, or E felony if committed by an adult.
This entry addresses offering and using evidence of a person’s other crimes, wrongs, or acts. For more information about general character evidence, see the related Evidence entry on Character Generally [Rule 404(a)].
Rule 404(b) states that evidence of other crimes, wrongs, or acts may not be used as evidence of a person’s character for “propensity” purposes – that is, to show that the person likely acted in a manner consistent with the other crime, wrong, or act in the present case. See G.S. 8C-404(b), Official Commentary (“evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it”).
Nevertheless, Rule 404(b) is generally viewed as a rule of inclusion because the rule also states that such evidence may be admitted if it is offered for some other purpose besides propensity, such as motive, preparation, knowledge, or intent. G.S. 8C-404(b); see, e.g., State v. Beckelheimer, 366 N.C. 127 (2012); State v. Coffey, 326 N.C. 268 (1990).
Key Requirements for Admissibility: Relevance and Identity
To be admissible, evidence of the other crime, wrong, or act must be:
(i) relevant and offered for a proper purpose (see examples of proper purposes in Section C below); and
(ii) a crime, wrong or act that was committed by the same person.
See State v. Haskins, 104 N.C. App. 675 (1991) (identity established by testimony of victim). The evidence is admissible if there is substantial evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. See State v. Stager, 329 N.C. 278 (1991).
If the person was convicted of a crime, the state may prove his or her identity as the perpetrator of the other offense through court records. If the other crime, wrong, or act did not result in a conviction, the proponent must offer sufficient evidence to show that it was committed by the same person. See, e.g., State v. Peterson, 361 N.C. 587 (2007) (trial court noted numerous similarities between type of victims, manner of death, relationship to defendant, and other distinguishing characteristics which showed that “sufficient similar facts and circumstances exists between the two deaths so that a jury could reasonably find that the Defendant committed both acts”); State v. Matthews, 218 N.C. App. 277 (2012) (admissibility of evidence of prior break-in supported by similarities in “the method of entry, the larceny of cigarettes, the type of businesses targeted, the time of day the crimes were committed, the short period of time between the commission of the two crimes, the location of both businesses within Charlotte's city limits, and the blood evidence collected connecting Defendant to the crimes”).
Direct evidence of the person’s identity is not required; circumstantial evidence can suffice. See State v. Moore, 335 N.C. 567 (1994) (identity proved by circumstantial evidence regarding unusual nature of arsenic poisoning, victims’ marital connection to defendant, motive, opportunity, and means); State v. Jeter, 326 N.C. 457 (1990) (“the circumstantial evidence that defendant was the perpetrator of the offense committed five months earlier—including both similar fingerprint evidence and the similar pattern of its perpetration—demonstrates a potent, logical pertinence to the question of the assailant's identity in the offense on trial”).
Ask on cross-examination
A witness, including the defendant, may be cross-examined with Rule 404(b) evidence. See State v. Bagley, 321 N.C. 201 (1987); State v. Dammons, 128 N.C. App. 16 (1997). In many cases, the prosecutor will be able to establish the person’s identity as the perpetrator of the other crime, wrong, or act simply by asking. (“Mr. Witness, didn’t you also see the defendant attack Mr. Victim with the same weapon just two weeks prior to the assault for which he was arrested in this case?”)
If the person was found not guilty of a charged offense, evidence regarding the prior crime or wrong is not admissible. See State v. Ward, 199 N.C. App. 1 (2009). However, this prohibition does not apply if the prosecution was dismissed by the state prior to adjudication. See State v. Flaugher, 214 N.C. App. 370 (2011) (voluntary dismissal by the prosecutor does not have the same effect as an acquittal, and does not bar introduction of the evidence); see also State v Lynch, 337 N.C. 415 (1994) (finding of no probable cause in district court did not bar admissibility).
If the proffered evidence is relevant for a permissible purpose other than propensity and the proponent has sufficiently established that the other crime, wrong, or act was committed by the same person, then the court exercises its discretion and engages in a balancing test to determine whether the evidence is admissible. The court must weigh the probative value of the evidence under Rule 401 against the risk of unfair prejudice under Rule 403. See State v. Oliver, 210 N.C. App. 609 (2011).
Keep it clean
A hearing to determine the admissibility of proffered Rule 404(b) evidence should be held outside the presence of the jury. See State v. Beckelheimer, 366 N.C. 127 (2012). If the evidence is admitted, the judge should give an appropriate limiting instruction to the jury at the conclusion of the case. See N.C.P.I. – Crim. 104.15 (Evidence of Similar Acts or Crimes).
When conducting the Rule 401/403 balancing test, the judge must consider two additional factors: (a) the temporal proximity of the other event; and (b) the similarity of the facts between the other event and the present case. See State v. Badgett, 361 N.C. 234 (2007); State v. Houseright, 220 N.C. App. 495 (2012).
- Temporal Proximity
More recent crimes, wrongs, or acts usually have greater probative value, while more distant acts or events generally have less probative value. See, e.g., State v. Barnett, 223 N.C. App. 450 (2012).
However, there is no bright-line test for what constitutes “sufficient” temporal proximity, and the issue must be decided on a case by case basis. See State v. Maready, 362 N.C. 614 (2008). For example, the recency of the other crime, wrong, or act might be a more significant factor when evaluating evidence purportedly showing a “common scheme or plan,” see State v. Lloyd, 354 N.C. 76 (2001), but it would be a less significant factor if the evidence is only being offered to show a well-established modus operandi, see State v. Beckelheimer, 366 N.C. 127 (2012).
Similarly, remoteness in time is less important (or possibly even enhances the probative value) if the evidence is being offered to establish a long-running pattern, or where the “gap” between the events can be explained by the person’s incarceration or lack of access to victims. See, e.g., State v. Shamsid-Dean, 324 N.C. 437 (1989) (“[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than to disprove the existence of a plan”); State v. Register, 206 N.C. App. 629 (2010) (“While there was a significant gap of time between Christopher and Bonnie's abuse and Catherine's abuse, that gap was the result of defendant's not having access to children related to his wife”).
Finally, there is no requirement that the other crime, wrong, or act be from a “prior” incident. Other crimes, wrongs, or acts that occurred after the alleged offense can also be admitted under this rule, as long as the other conduct is relevant to a proper purpose in the present case. See State v. Matthews, 218 N.C. App. 277 (2012); State v. Twitty, 212 N.C. App. 100 (2012); State v. Mobley, 200 N.C. App. 570 (2009).
- Similarity of Facts
To be admissible under Rule 404(b), the other crime, wrong, or act does not have to be identical to the current offense, but it must be “sufficiently similar.” See State v. Wilson-Angeles, 251 N.C. App. 886 (2017) (finding that prior arson incident and current offense “contained key similarities”). Distinctive or unusual facts that are present in both the current case and the other crime, wrong, or act can establish a sufficient degree of similarity; the similarities do not have to rise to the level of being “unique and bizarre.” State v. Beckelheimer, 366 N.C. 127 (2012).
If the other crime, wrong, or act is very old (i.e., a weak temporal proximity), a greater degree of similarity to the current offense may be necessary in order to find that the probative value under Rule 401 outweighs the risk of unfair prejudice under Rule 403. See State v. Webb, 197 N.C. App. 619 (2009).
On the other hand, depending on the particular purpose for which the other crime, wrong, or act is being offered, the lack of similarity between the two acts or events may have less significance in the Rule 401/403 balancing analysis. See, e.g., State v. Dean, 196 N.C. App. 180 (2009) (evidence of matching shell casings recovered from a separate and unrelated assault investigation was admissible at defendant’s murder trial, because the relevance of the casings was to show defendant’s possession of the gun around the same time as the murder, which in turn was relevant to proving his identity as the murderer).
"Bare Fact" of Conviction
Evidence of “other crimes, wrongs, or acts” obviously includes criminal conduct for which the person was convicted (or adjudicated delinquent as a juvenile for a Class A through E felony), but the “bare fact” of the conviction itself is usually not admissible under Rule 404(b). See State v. Wilkerson, 356 N.C. 418 (2002), reversing 148 N.C. App. 310 (2002). Adopting the dissent from the Court of Appeals, the Wilkerson court contrasted Rule 404(b) with impeachment using prior convictions permitted under Rule 609, and explained that for Rule 404(b) purposes it is only the facts and circumstances of the other crime that are relevant, not the resulting conviction. Id. Furthermore, evidence of the prior conviction could be unfairly prejudicial. Id.
Exceptions to this rule allow evidence of the “bare fact” of a conviction in the following situations: (i) second-degree murder cases; (ii) sexual assault cases; (iii) prior convictions established through a transcript of plea; (iii) prior convictions of the victim; and (v) where the prior conviction has a direct bearing on motive or intent for the current crime (e.g., as retaliation against a testifying witness). For a more detailed discussion of each of these exceptions, see Jessica Smith, “Rule 404(b): The Bare Fact of Conviction Rule,” N.C. Criminal Law Blog, April 17, 2013 and Jessica Smith, “Rule 404(b): Evidence of Other Crimes, Wrongs, or Acts,” NC Superior Court Judges’ Benchbook, March 2013, p. 2-3.
Although evidence offered under Rule 404(b) frequently relates to criminal or otherwise wrongful conduct, that is not a requirement. Conduct that is innocent and lawful may also constitute an “act” that is relevant and admissible under Rule 404(b) for another purpose such as showing motive, identity, or knowledge. See, e.g., State v. Wilson, 108 N.C. App. 117 (1992) (evidence of a conversation that took place between defendant and another person was admissible under Rule 404(b) for purpose of showing plan to commit robbery); see also United States v. Scott, 677 F.3d 72 (2d Cir. 2012) (noting that every federal circuit court “to consider the issue has concluded that Rule 404(b) extends to non-criminal acts or wrongs,” collecting cases, and joining the consensus).
Permissible Other Purposes Under Rule 404(b)
As noted above, character evidence is not admissible under Rule 404(b) to show a person’s “propensity” to act in conformity therewith, but it may be admissible for a wide variety of “other purposes.” The list of permissible purposes contained in the rule is not exclusive. Evidence may be admitted as long as it is offered for any purpose other than showing propensity. See State v. White, 340 N.C. 264 (1995); State v. DeLeonardo, 315 N.C. 762 (1986) (fact that evidence does not fit within a purpose listed in Rule 404(b) does not make it inadmissible; list is not exclusive).
For reference and illustration, cases demonstrating several of the most common purposes for which evidence has been admitted under this rule are summarized below.
It can be more than one
The topics and cases below are discussed separately for clarity. In practice, however, there often are multiple purposes for which a given crime, wrong, or act may be admissible. Prosecutors should argue all of the applicable justifications for admission of the evidence: “Your Honor, this evidence is admissible because it establishes the defendant’s motive and intent to commit the current offense, as well as showing the knowledge, opportunity, preparation and planning that went into committing it."
Rule 404(b) evidence may be admissible to explain why the defendant committed the current crime. See, e.g., State v. Brown, 211 N.C. App. 427 (2011), aff’d, 365 N.C. 465 (2012) (evidence of defendant’s possession of incestuous pornography admitted to show motive for sexually assaulting his minor child); State v Blymler, 205 N.C. App. 240 (2010) (evidence of defendant’s prior thefts to support his drug habit were relevant to show motive to commit robbery and murder in current case); State v. Graham, 200 N.C. App. 204 (2009) (evidence about a prior assault admissible to show defendant’s motive to kill victim to prevent her from testifying about the assault); State v. Martin, 97 N.C. App. 19 (1990) (evidence that defendant owed money was admissible to show motive in possession of stolen property case).
Rule 404(b) evidence may be admissible to prove that the defendant had the intent to commit the crime with which he is charged. See, e.g., State v. Conley, 220 N.C. App. 50 (2012) (evidence of a second fraudulent check, drawn on a different bank, admissible to show defendant’s intent to commit the charged crime); State v. Christian, 180 N.C. App. 621 (2006) (evidence of prior defendant’s prior assault and robbery of victim admissible to show later intent to shoot friends of that same victim who were in the same car); State v. Moore, 94 N.C. App. 55 (1989) (evidence of prior burglary and rape admissible to show defendant committed burglary in the present case with the intent to commit rape).
Rule 404(b) evidence may be admissible to show the defendant acted knowingly, or had knowledge of some fact relevant to the current offense. See, e.g., State v. Hipps, 348 N.C. 377 (1998) (evidence of a murder committed 17 years before the current murder was admissible to show defendant’s knowledge of what he was doing as both murders were committed in the same manner); State v. Liner, 98 N.C. App. 600 (1990) (evidence that defendant previously supplied same type of drugs that caused the victim’s death to another person, resulting in a near fatal overdose, was admissible to show defendant’s knowledge of the dangerous nature of the drugs); State v. Freeman, 79 N.C. App. 177 (1986), overruled on other grounds, 346 N.C. 262 (1997) (defendant’s prior passing of bad checks admissible to show knowledge that checks in the present case were forged); State v. Weldon, 314 N.C. 401 (1985) (evidence of defendant’s prior possession of controlled substances admissible to show knowledge that drugs were present in this case).
Rule 404(b) evidence may be admissible to prove that the defendant had the opportunity to commit the crime charged. See, e.g., State v. McAbee, 120 N.C. App. 674 (1995) (evidence that defendant was unemployed was admissible in murder case to show that defendant was frequently home alone with the child victim); see also State v. Marecek, 152 N.C. App. 479 (2002) (evidence that defendant kept a nightstick in his car was relevant and admissible to show defendant could have inflicted the blunt force trauma on victim’s skull that led to her drowning).
Rule 404(b) evidence may be admissible if it helps to establish that the defendant is the person who committed the currently charged offense. See, e.g., State v. Martin, 191 N.C. App. 462 (2008) (evidence of prior breaking and entering conviction for defendant, committed in the same neighborhood as attempted burglary in present case, admissible to show identity); State v. Garner, 331 N.C. 491 (1992) (evidence of attempted murder that happened three weeks prior to current robbery and murder offense was admissible to show identity, since same gun was used in both offenses); State v. Dean, 196 N.C. App. 180 (2009) (similar ruling, evidence of defendant’s prior offense was admissible because the same weapon was used in the current offense). Cf. State v. Thompson, 265 N.C. App. 576 (2019) (detective properly allowed to testify that he recognized defendant based on past interactions, but it was error to allow the additional detail that it was a prior narcotics case).
Modus Operandi or "Common Scheme"
Similar to “Identity,” described above, evidence of other crimes, wrongs, or acts by the defendant may be admissible if it shows a pattern, method, feature, or technique that is also present in the currently charged offense, because such evidence indicates that the defendant is the perpetrator of the current offense as well. See, e.g., State v. Mohamed, 205 N.C. App. 470 (2010) (evidence of prior robbery by person with an African accent, using a handgun, who then used the victim’s credit cards to buy gas at the same gas station within a short amount of time was admissible to prove common scheme and identity in a similar robbery case); State v. Bradley, 179 N.C. App. 551 (2006) (evidence of prior sexual abuse of other victims was admissible, based on similarity of victims’ ages, victims’ placement in defendant’s home, familial or quasi-familial relationship between victims and defendant, the nature of the abusive conduct, and defendant’s warning not to disclose what happened); State v. Blackwell, 133 N.C. App. 31 (1999) (evidence of defendant’s similar modus operandi with other children was admissible to prove he was the perpetrator in the current case); State v. Burr, 341 N.C. 263 (1995) (in prosecution for murder of a child, evidence of similar prior assaults on the child’s mother were admissible to prove identity); State v. Moore, 335 N.C. 567 (1994) (evidence of arsenic poisoning death of defendant’s first husband admissible in subsequent prosecution for nearly fatal arsenic poisoning of her current husband).
Rule 404(b) evidence may be admissible if it shows the defendant prepared for the commission of the crime. See, e.g., State v. Goins, 244 N.C. App. 499 (2015) (evidence of hazing by wrestling coach was admissible as evidence of preparation and “grooming behavior” to prepare student victims for sexual activity); State v. Williams, 318 N.C. 624 (1986) (evidence that defendant took his daughter to an X-rated film and told her to look at graphic sexual images was admissible in rape and incest case to show preparation and plan); State v. Brown, 178 N.C. App. 189 (2006) (similar ruling, where evidence that defendant showed pornographic images to a young girl was admissible as evidence of preparation to molest and rape her).
Rule 404(b) evidence may be admissible to help show that the defendant planned the charged crime. See, e.g., State v. Houseright, 220 N.C. App. 495 (2012) (evidence that defendant engaged in sexual acts with another child was admissible to show he planned to do so with current child victim); State v. Woodard, 210 N.C. App. 725 (2011) (evidence of prior pharmacy break in that did not succeed in obtaining controlled substances was admissible to show defendant’s plan to obtain drugs through current offense of breaking into a drug store); State v. King, 178 N.C. App. 122 (2006) (evidence of a prior illegitimate power of attorney obtained by defendant from another victim admissible to show plan in prosecution for forgery, uttering, and false pretenses prosecution involving current victim, also done through a power of attorney); State v. Petro, 167 N.C. App. 749 (2005) (evidence of prior assault on a female admissible to show plan in current case of kidnapping and assault on a female); State v. Penland, 343 N.C. 634 (1996) (evidence of defendant’s mistreatment of another woman 10 years earlier, in a bizarre and distinct manner, was admissible to show ongoing and continuous plan to engage in such activities).
Premeditation and Deliberation
In a homicide case, Rule 404(b) evidence may be admissible to show the defendant acted with premeditation and deliberation. See, e.g., State v. Krider, 138 N.C. App. 37 (2000) (evidence of prior assaults on victim admissible to show premeditation, deliberation, intent, and ill-will); State v. Gary, 348 N.C. 510 (1998) (evidence of prior convictions for assault on female and communicating threats to victim was admissible to show premeditation and deliberation); State v. Scott, 343 N.C. 313 (1996) (evidence of frequent quarrels, separations, reconciliations, and ill-treatment of victim in the past was admissible in murder case to show defendant’s premeditation and deliberation, as well as intent, malice, and motive); State v. Hager, 320 N.C. 77 (1987) (evidence of “ill-will” between defendant and victim over an outstanding debt owed by the victim, and defendant’s statement that violence might be necessary to collect on it, showed that defendant acted premeditation and deliberation).
Rule 404(b) evidence may be admissible to show malice for purposes of a second degree murder prosecution. For example, evidence of prior motor vehicle offenses is often introduced in vehicular homicide cases to demonstrate the defendant’s recklessness and indifference to endangering human life. See, e.g., State v. Maready, 362 N.C. 614 (2008) (not plain error to admit defendant’s entire driving record, including some offenses over 16 years old, at vehicular homicide trial to show malice and mental state); State v. Hayes, 183 N.C. App. 602 (2007) (defendant’s prior act of responding to a service call after drinking, which violated work policy, and his erratic and unsafe driving on that occasion was admissible to show malice to commit murder after causing a fatality under similar circumstances in the present case); accord, State v. Westbrook, 175 N.C. App. 128 (2005); State v. Goodman, 149 N.C. App. 57 (2002), rev’d in part, 357 N.C. 43 (2003); State v. Jones, 353 N.C. 159 (2000).
Rule 404(b) evidence has also been admitted in other types of homicide cases in which the nature of the other crime, wrong, or act demonstrates the defendant’s malice towards the victim. See, e.g., State v. Terry, 329 N.C. 191 (1991) (evidence that defendant defaced photos of victim’s wife 4 months prior to murder were admissible to show malice, based on defendant’s hostility toward victim and bizarre preoccupation with defendant’s wife); State v. Spruill, 320 N.C. 688 (1987) (evidence of prior altercations between defendant and victim admissible to show defendant’s malice towards victim).
Context, or Chain of Events
Rule 404(b) evidence may be admitted if it ““pertain[s] to the chain of events explaining the context, motive and set-up of the crime” and “forms an integral and natural part of an account of the crime ... necessary to complete the story of the crime for the jury.” State v. Smith, 152 N.C. App. 29 (2002), quoting State v. Agee, 326 N.C. 542 (1990); accord, State v. White, 340 N.C. 264 (1995) (Rule 404(b) evidence admissible if it “serves to enhance the natural development of facts or is necessary to complete the story of the charged crime for jury); see, e.g., State v. Bell, 164 N.C. App. 83 (2004) (in trial for resisting, delaying and obstructing an officer, no error in allowing evidence about defendant’s conduct after she left patrol car, which resulted in a separately-tried assault on law enforcement charge, because it was all part of the same chain of events and lent additional support to the resisting charge); State v. Simmons, 167 N.C. App. 512 (2004) (evidence of prior common law robbery was admissible at defendant’s murder trial, where circumstances of the robbery were part of the chain of events explaining defendant’s motive and the immediate context of the shooting).
Victim’s State of Mind
Rule 404(b) evidence may be admissible to show the victim’s state of mind if that is a relevant issue in the case. See, e.g., State v. Foust, 220 N.C. App. 63 (2012) (prior bad acts admissible to show why rape victim was afraid of defendant, did not consent, and delayed reporting); accord, State v. Wade, 155 N.C. App. 1 (2002); State v. Thompson, 139 N.C. App. 299 (2000).
Not an Accident or Mistake
Rule 404(b) evidence may be admissible to counter a defendant’s claim that the offense occurred as a result of an accident or mistake. See, e.g., State v. Paddock, 204 N.C. App. 280 (2010) (evidence of defendant’s prior abuse of other children in similar ways was admissible to rebut claim that current injuries were accidental); State v. Lloyd, 354 N.C. 76 (2001) (in murder case where defendant claimed shooting was accidental, evidence of prior occasion where defendant shot the victim was admissible to counter the accident claim); State v. Stager, 329 N.C. 278 (1991) (“Evidence of similar acts may be offered to show that the act in dispute was not inadvertent, accidental or involuntary.” […] “The doctrine of chances demonstrates that the more often a defendant performs a certain act, the less likely it is that the defendant acted innocently.”); State v. Carroll, 101 N.C. App. 691 (1991) (evidence of prior insurance claims made by defendant admissible in fraud case to show absence of mistake and pattern of claims); State v. Whitted, 99 N.C. App. 502 (1990) (evidence of misapplication of funds in another case was admissible in embezzlement case to show lack of mistake, as well as knowledge and intent).
Absence of Entrapment
Rule 404(b) evidence may be admissible to counter a defendant’s claim that the offense occurred as a result of entrapment by law enforcement. See, e.g., State v. Goldman, 97 N.C. App. 589 (1990) (evidence of defendant’s prior drug use and possession was admissible to counter claim of entrapment in prosecution for possession with intent to sell and deliver LSD); State v. Artis, 91 N.C. App. 604 (1988) (defendant’s prior drug sales were admissible to show absence of entrapment where defendant sold drugs to law enforcement in current case).