State v. Ponos
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-968 NORTH CAROLINA COURT OF APPEALS Filed: 18 February 2014 STATE OF NORTH CAROLINA v. New Hanover County No. 11 CRS 60934 JOHN NICHOLAS PONOS Defendant Appeal by defendant from judgment entered 18 April 2013 by Judge Arnold O. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 22 January 2014. Roy Cooper, Attorney General, by Donna D. Smith, Assistant Attorney General, for the State. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred for defendant-appellant. DAVIS, Judge. Defendant John Nicholas Ponos ( Defendant ) appeals from a judgment entered by the trial court based on the jury s verdict finding Defendant pretenses. committed guilty of obtaining property by false On appeal, Defendant asserts that the trial court prejudicial error by admitting evidence of a subsequent bad act under North Carolina Rule of Evidence 404(b) -2that was not sufficiently similar to the crime for which he was charged. After careful review, we hold that Defendant received a fair trial free from error. Factual Background The State s evidence following facts: at Toyota of Barnes ), the at trial tended Mr. establish the In September 2009, Defendant, a sales manager Wilmington, owner of met with Eastern Barnes had vehicles from Defendant. previously Reginald Barnes ( Mr. Supply, Skateboard ( Eastern ), at Mr. Barnes s office. because to Inc. Defendant knew Mr. Barnes bought or leased several During this meeting, Defendant asked Mr. Barnes if he would loan Defendant $20,000 to pay a child support order. Defendant explained that he had property and stocks that he could sell but would not be able to sell them soon enough to pay the child support order. Mr. Barnes agreed to lend Defendant $20,000 from Eastern if Defendant would sign a promissory note and write Mr. Barnes a check for $20,000 as collateral. At the conclusion of the meeting, Mr. Barnes gave Defendant check a for $20,000. The day after the meeting, Defendant left a promissory note and another check for $20,000 as collateral at Mr. Barnes s office. -3After several months went by and Defendant failed to pay Mr. Barnes back by the agreed upon date, Mr. Barnes told Defendant that he was going to deposit the check Defendant had given him as collateral. However, when he attempted to do so in early April 2010, he learned that Defendant had stopped payment on the check. Defendant never repaid Mr. Barnes any portion of the $20,000 loan. At trial, the State was permitted to introduce evidence under Rule 404(b) of an incident that occurred in October 2010 in which Defendant went to Rhodes Jewelers to purchase a Rolex watch. Defendant knew Jewelers, because Wayne Rhodes, Defendant s father the co-owner of and Mr. used to own businesses on the same block. relationship, Mr. Rhodes agreed to sell Rhodes s Rhodes father Because of this a Rolex watch to Defendant for $9,000, which was 10% below the retail price, and Defendant gave Mr. Rhodes a check for that amount. later, however, the $9,000 check was Several days returned to Mr. Rhodes because Defendant had stopped payment on the check. The jury returned a guilty verdict against Defendant during the 15 April 2013 Superior Court. imprisonment. Criminal Session of New Hanover County Defendant was sentenced to ten to twelve months Defendant gave notice of appeal in open court. -4Analysis Defendant prejudicial asserts error by that the admitting trial the court evidence committed that Defendant stopped payment on the $9,000 check to Rhodes Jewelers based on his contention that the charged crime and the Rhodes Jewelers incident were not sufficiently similar. We disagree. When reviewing a trial court s decision to admit evidence of a defendant s prior or subsequent bad acts, we conduct three distinct inquiries. See State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). First, we consider whether the evidence supports the trial court s findings of fact and whether the findings Second, [w]e of fact review support de novo the conclusions the legal of law. conclusion that Id. the evidence is, or is not, within the coverage of Rule 404(b). Id. Finally, we review the trial court s determination of whether the evidence should have been excluded under Rule 403 for abuse of discretion. Id. Defendant challenges the trial court s findings that (1) in both instances, he received items of value based on his inaccurate representations; and (2) Defendant employed the same modus operandi in both cases. supports these findings. We believe that the evidence -5Mr. Rhodes testified that Defendant paid for the Rolex with a personal check and that he would not have sold Defendant the Rolex if he knew that Defendant was going to stop payment on the check. Similarly, Mr. Barnes testified that as part of their agreement Defendant signed a promissory note and gave him a check for $20,000 as collateral. Mr. Barnes also stated that he would not have loaned Defendant the money if he thought that the check Defendant gave him would not be honored. While Defendant argues that the representations made by him in the two incidents were not identical, in both incidents Defendant represented either explicitly or implicitly that the checks he presented would be honored and in both cases the representations turned out to be false based on his own conduct in stopping payment on the checks. Likewise, we believe that the two incidents demonstrate a common scheme of obtaining money or goods through the issuance of a check and then stopping payment on the check shortly before the check was about to be cashed or deposited. Next, we review de novo the determination of whether the evidence that Defendant stopped payment on the check to the jewelry store qualifies as Rule 404(b) evidence. is a clear general rule of inclusion. Rule 404(b) Beckelheimer, 366 N.C. -6at 130, 726 S.E.2d at 159 (quoting State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1990)). Rule 404(b) provides a non-exclusive list of numerous purposes for which evidence of prior acts may be admitted, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. Id. (quoting N.C. R. Evid. 404(b)). Because the list in Rule 404(b) is nonexclusive, evidence may be admitted as long as it is relevant to any fact or issue other than the defendant s propensity to commit the crime. Id. However, Rule 404(b) evidence must be sufficiently similar and close in time to the charged crime to be admissible. 131, 726 S.E.2d at 159. Id. at An act is sufficiently similar if there are unusual facts, which do not have to be unique and bizarre, present in both the act and the charged crime indicate that the same person committed both acts. Defendant does not argue that requirement of Rule 404(b) was unmet. the that would Id. temporal proximity However, he claims that the two incidents were not sufficiently similar, arguing that one could not reasonably infer from the circumstances that the same person argument. committed both acts. We reject Defendant s -7In both transactions, Defendant targeted individuals with whom he had a prior relationship, relied on that relationship to obtain something of value, and deceived both individuals by not following through on his part of the bargain by stopping payment on the checks that he had written to them. incidents involved sufficiently similar Therefore, the two facts to support a reasonable inference that the same person committed both acts. Because we conclude that the Rule 404(b) evidence was sufficiently similar to the charged crime, our final task is to review the trial court s decision to admit the evidence under Rule 403 for abuse of discretion. 130, 726 evidence S.E.2d may substantially at be 159. Rule excluded outweighed See Beckelheimer, 366 N.C. at by 403 if the provides its danger that probative of unfair relevant value is prejudice. N.C. R. Evid. 403. Our review of the record reveals that the trial court heard testimony counsel from outside the of Rule 404(b) the presence witnesses of the and jury. arguments Judge from Jones weighed the probative value and the prejudicial effect of the Rule 404(b) evidence before ultimately deciding to admit the evidence. Furthermore, the trial court took steps to limit any prejudicial effect of the evidence both by giving a limiting -8instruction at the time the Rule 404(b) evidence was admitted and by stating the following in its charge to the jury at the end of the trial: [E]vidence has been received tending to show that at an earlier time an act was committed by the defendant against a different alleged victim. This evidence was received solely for the purpose of showing that the defendant had the intent which is a necessary element of the crime charged in this case and that there existed in the mind of the defendant a plan, scheme, system or design involving the crime charged in this case. If you believe this evidence, you may consider it, but only for the limited purpose for which it was received. And you will recall I gave you a limiting instruction at the time you heard that evidence. You may not consider it for any other purpose. Therefore, we conclude that the trial court did not abuse its discretion in admitting the Rule 404(b) evidence. Conclusion For the reasons stated above, we conclude that Defendant received a fair trial free from error. NO ERROR. Judges STEELMAN and STEPHENS concur. Report per Rule 30(e).
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