STATE OF NORTH CAROLINA
v. Davidson Coun
ty
No. 00CRS135
RANDALL SCOTT CRAVER
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Robert M. Curran, for the State.
J. Clark Fischer for defendant-appellant.
HUNTER, Judge.
Randall Scott Craver (“defendant”) was convicted of the
statutory rape of his daughter (“the victim”) pursuant to N.C. Gen.
Stat. § 14-27.7A (1999). The court sentenced defendant to a
minimum term of 216 months and a maximum term of 269 months in
prison. Defendant appeals. We find no error.
The sole issue on appeal is whether the court erred by
admitting evidence under Rule 404(b) of the North Carolina Rules of
Evidence (“Rule 404(b)”) showing that approximately six months
prior to the incident forming the basis of the present charge,
defendant engaged in sexual intercourse with another female
relative who was under the age of sixteen. The victim, who was thirteen years old at the time of the
incident forming the basis for the charge, testified that on 25
December 1999 she spent the night at defendant's sister's house.
Defendant came into the bedroom where she was sleeping, lay down on
the bed behind her, and rubbed her thighs and vaginal area. He
removed her jeans and panties and engaged in sexual intercourse
with her. Afterward he fell asleep on her bed.
The court also admitted the testimony of the victim's cousin
that shortly before her sixteenth birthday in June of 1999, she
spent the night at the victim's house. She went into a bedroom to
retrieve cigarettes. Defendant approached her, placed his hands
between her legs and on her breasts, removed her pants and
underwear, and engaged in sexual intercourse with her.
Rule 404(b) provides, in pertinent part:
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.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999). Our Supreme Court has
interpreted this rule as being one of inclusion of relevant
evidence of other crimes, wrongs, or acts, provided that the
evidence is offered for a purpose other than “to show that the
defendant has the propensity or disposition to commit an offense of
the nature of the crime charged.” State v. Coffey, 326 N.C. 268,
278-79, 389 S.E.2d 48, 54 (1990). The Court has been liberal in
upholding the admission of evidence of other sexual offenses whenthe defendant has been charged with a sex crime. State v. McCarty,
326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990).
When evidence is offered to show the existence of a common
plan or scheme to sexually abuse adolescent female relatives, as
offered by the State in the case at bar, the test of admissibility
is “whether the incidents establishing the common plan or scheme
are sufficiently similar and not so remote in time as to be more
probative than prejudicial under the balancing test of N.C.G.S. §
8C-1, Rule 403.” State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d
297, 299 (1996). Defendant contends that the two incidents are not
sufficiently similar to demonstrate the existence of a common plan
or scheme. He argues that the only similarity between the
incidents is that they involved teenage girls. He also argues that
even if the incidents are similar, the probative value of the
evidence is outweighed by the danger of unfair prejudice and that
the evidence should have been excluded pursuant to Rule 403 of the
North Carolina Rules of Evidence (“Rule 403”).
“Under Rule 404(b) a prior act or crime is 'similar' if there
are '“some unusual facts present in both crimes or particularly
similar acts which would indicate that the same person committed
both.”'” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-
91 (1991) (citations omitted). “However, it is not necessary that
the similarities between the two situations 'rise to the level of
the unique and bizarre.'” Id. at 304, 406 S.E.2d at 891 (citation
omitted). “Rather, the similarities simply must tend to support areasonable inference that the same person committed both the
earlier and later acts.” Id. (emphasis omitted).
Here, the similarities between the two incidents go beyond the
mere fact that they involved teenage girls. The incidents occurred
in bedrooms of residences where defendant was staying, involved two
female relatives who were visiting defendant overnight, and
involved similar means of commission, i.e., fondling the girls'
genitals followed by removing the girls' pants and panties and
penetrating the girls' vaginas with his penis for approximately ten
minutes. In both incidents, defendant took advantage of the girls'
timidity and fear to engage in sexual intercourse with them.
Defendant did not wear a condom and neither girl knew whether
defendant ejaculated or not. The incidents occurred approximately
six months apart.
We conclude that the foregoing similarities are sufficient to
support a finding of a common plan or scheme by defendant to engage
in sexual intercourse with visiting adolescent female relatives.
We also conclude that the probative value of the evidence
outweighed the danger of unfair prejudice pursuant to Rule 403. We
hold that the court properly admitted the evidence.
No error.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***