An unpublished opinion of the North Carolina Court of Appeals does not constitute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      guilty     of   obtaining      property      by    false

pretenses.      On appeal, Defendant asserts that the trial court

committed      prejudicial      error      by    admitting     evidence      of    a

subsequent bad act under North Carolina Rule of Evidence 404(b)
                                              -2-
that 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       at    trial       tended    to     establish    the

following facts:          In September 2009, Defendant, a sales manager

at   Toyota       of   Wilmington,        met       with     Reginald       Barnes     (“Mr.

Barnes”),      the     owner       of    Eastern       Skateboard           Supply,     Inc.

(“Eastern”), at Mr. Barnes’s office.                       Defendant knew Mr. Barnes

because    Mr.     Barnes    had    previously         bought       or    leased     several

vehicles from Defendant.                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     a   check     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.
                                         -3-
      After 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          Wayne Rhodes,      the co-owner of         Rhodes

Jewelers,    because     Defendant’s      father      and    Mr.    Rhodes’s   father

used to own businesses on the same block.                          Because of this

relationship,      Mr.    Rhodes      agreed   to     sell    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.                       Several days

later, however,       the $9,000 check was             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       Criminal    Session      of    New    Hanover    County

Superior Court.       Defendant was sentenced to ten to twelve months

imprisonment.      Defendant gave notice of appeal in open court.
                                             -4-
                                        Analysis

       Defendant         asserts      that     the       trial     court      committed

prejudicial       error    by    admitting         the   evidence     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     of    fact     support    the     conclusions     of     law.    Id.

Second,    “[w]e    review       de    novo   the     legal   conclusion      that   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.                      We believe that the evidence

supports these findings.
                                      -5-
      Mr. 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.                     “Rule 404(b)

is ‘a clear general rule of inclusion.’”               Beckelheimer, 366 N.C.
                                            -6-
at 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.                             Id. at

131, 726 S.E.2d at 159.              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     that    would

indicate that the same person committed both acts.                      Id.

       Defendant       does    not    argue       that   the   temporal       proximity

requirement of Rule 404(b) was unmet.                    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     committed         both    acts.       We    reject     Defendant’s

argument.
                                         -7-
       In 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.                           Therefore, the two

incidents    involved        sufficiently       similar         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.                  See Beckelheimer, 366 N.C. at

130,   726   S.E.2d     at    159.       Rule      403     provides         that    relevant

“evidence    may      be      excluded        if     its       probative           value     is

substantially    outweighed         by   the    danger         of    unfair      prejudice.”

N.C. R. Evid. 403.

       Our review of the record reveals that the trial court heard

testimony    from     the    Rule    404(b)     witnesses           and     arguments      from

counsel   outside      of    the    presence       of    the        jury.        Judge   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
                                -8-
instruction 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).
