On 15 November 2000, the State filed a juvenile petition
alleging that respondent William David McKinney, who was fifteen
years old, had committed a first-degree sexual offense in violation
of N.C. Gen. Stat. § 14-27.4. The petition alleged specifically
that McKinney had willfully and feloniously engaged in a sexual act
other than vaginal intercourse with victim ATS, that ATS was under
the age of thirteen, that respondent was at least twelve years of
age, and that he was at least four years older than the victim.
Respondent's mother took care of ATS, who was eight years old,
while ATS's mother was working. ATS went to respondent's house
every Thursday and on occasion spent the night. When she spent the
night, she would sleep in the same bed as respondent's two younger
sisters. According to ATS, one night sometime between 1 April 2000
and 27 October 2000, she awoke to find respondent lying between her
legs and licking her genital area. Respondent said nothing to her
and neither of his sisters awoke during the incident. On 27
October 2000, ATS told her mother what had happened.
ATS's mother reported this incident to the Eden Police
Department and Detective Wilma Jones conducted interviews of both
ATS and respondent. Respondent initially denied the incident, but
then claimed that ATS had initiated the sexual conduct.
The case was calendared for probable cause and adjudication
hearings on 9 April 2001 before the Honorable Frederick B. Wilkins.
Immediately preceding the probable cause hearing, the State moved
to amend the petition to allege that the offense occurred between1 April 2000 and 27 October 2000 instead of "around March 30,
2000." Over respondent's objection, the amendment was allowed.
Upon the court's finding probable cause, the State waived a
transfer hearing. After hearing additional evidence from the State
and from respondent, the court adjudicated respondent to be a
delinquent juvenile. The court then conducted a dispositional
hearing and committed respondent to the care of the Department of
Juvenile Justice and Delinquency Prevention for an indeterminate
time, up to and including respondent's twenty-first birthday.
I.
Respondent first argues that the juvenile court erred in
allowing the State to amend the juvenile petition at the hearing
without prior notice and without continuing the matter to allow the
respondent to prepare a defense to the amended charges. While
juvenile proceedings in this State are not criminal prosecutions,
a juvenile cited under a petition to appear
for an inquiry into his alleged delinquency is
entitled to the constitutional safeguards of
due process and fairness. These safeguards
include notice of the charge or charges upon
which the petition is based.
In re Jones, 11 N.C. App. 437, 438, 181 S.E.2d 162, 162 (1971)
(citation omitted).
In N.C. Gen. Stat. § 7B-2400 (2001), the General Assembly set
forth certain restrictions regarding motions to amend juvenile
petitions:
The court may permit a petition to be amended
when the amendment does not change the nature
of the offense alleged. If a motion to amend
is allowed, the juvenile shall be given a
reasonable opportunity to prepare a defense tothe amended allegations.
In this case, the juvenile does not contend that the amendment
changed the nature of the offense alleged. The court was,
therefore, permitted under the statute to allow the motion to
amend. The court's decision to do so is reviewed under an abuse of
discretion standard. Jones, 11 N.C. App. at 438, 181 S.E.2d at
162.
Respondent's sole objection relates to the timing of the
motion to amend. He contends that the granting of the motion on
the day of the hearing prejudiced him because he had prepared his
defense around the previously-alleged date of offense of 30 March
2000. As Jones makes plain, however, the mere fact that the
amendment occurred on the date of the hearing does not constitute
an abuse of discretion so long as the amendment did not change the
nature of the offense. Id.
If the amendment required that respondent reassess his
defense, N.C. Gen. Stat. § 7B-2400 provided the appropriate remedy.
Under N.C. Gen. Stat. § 7B-2400, the court was required _ if
requested by the juvenile _ to grant a continuance for a
"reasonable" period of time to allow the juvenile to prepare to
defend against the amended petition. N.C. Gen. Stat. § 7B-2400's
use of the phrase "shall be given a reasonable opportunity to
prepare a defense" is a mandate to the juvenile court. See
Blackmon v. N.C. Dept. of Correction, 343 N.C. 259, 265-66, 470
S.E.2d 8, 12 (1996) (the word "shall" in a statute is "mandatory
language"); Bailey v. Western Staff Servs., 151 N.C. App. 356, 360,566 S.E.2d 509, 512 (2002) (a statute's use of the word "shall"
indicates that its provisions are "mandatory").
Nothing, however, in N.C. Gen. Stat. § 7B-2400 suggests that
the juvenile court must grant a continuance on its own initiative.
A review of the record reveals that the juvenile never took
advantage of the relief offered by N.C. Gen. Stat. § 7B-2400 and
never requested a continuance to respond to the expanded time frame
of the amended petition.
The record strongly suggests that had the juvenile requested
a continuance, it would have been granted. When a dispute arose
regarding whether the court would conduct a transfer hearing, the
court repeatedly indicated its willingness to grant a continuance
to ensure that counsel had the ability to properly defend his
client. Because of the lack of any evidence in the record that the
juvenile asked the court for additional time, we find no error in
the court's granting of the State's motion to amend.
II.
Respondent also argues that the juvenile court erred in
allowing testimony regarding a second sexual assault, including
testimony from a second victim JC and corroborating testimony from
two adult witnesses. We disagree.
Under Rule 404(b) of the Rules of Evidence,
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.
As the Supreme Court has emphasized, Rule 404(b) is a "general rule
of
inclusion of relevant evidence of other crimes, wrongs or acts
by a defendant, subject to but
one exception requiring its
exclusion if its
only probative value is 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) (emphasis original).
Because of the tendency of Rule 404(b) evidence to improperly
sway the jury, "the rule of inclusion described in
Coffey is
constrained by the requirements of similarity and temporal
proximity."
State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d
120, 123 (2002). The similarities need not, however, "rise to the
level of the unique and bizarre."
State v. Sokolowski, 351 N.C.
137, 150, 522 S.E.2d 65, 73 (1999) (quoting
State v. Green, 321
N.C. 594, 604, 365 S.E.2d 587, 593,
cert. denied, 488 U.S. 900, 102
L. Ed. 2d 235 (1988)). Supreme Court decisions "both before and
after the adoption of Rule 404(b), have been 'markedly liberal' in
holding evidence of prior sex offenses 'admissible for one or more
of the purposes listed [in the Rule] . . ., especially when the sex
impulse manifested is of an unusual or "unnatural" character.'"
Coffey, 326 N.C. at 279, 389 S.E.2d at 54-55 (quoting 1
Brandis on
North Carolina Evidence § 92 (3d ed. 1988)).
During the adjudication portion of the hearing, the State's
witness JC testified that both he and respondent shared a tent
while at a wilderness camp program. JC testified that on the
evening of 9 August 2000 (during the same time frame as the allegedincident with ATS), he awoke to find his "private" in respondent's
mouth. JC, who was approximately twelve years old, testified that
after he awoke, respondent told him, "Don't tell."
JC reported this incident to camp personnel, who in turn
notified the Surry County Sheriff's Department and the Surry County
Department of Social Services. No charges were filed against
respondent. Matthew Fergus, director of the wilderness camp
program, and JC's mother corroborated JC's testimony.
The State specified that it sought to admit the evidence to
show a plan or scheme and to counter respondent's claim that ATS
was the aggressor. Both of the State's proffered reasons are
permissible bases for admission of the evidence under Rule 404(b).
In particular, the evidence shows a plan or scheme of performing
oral sex on younger adolescents as they sleep.
See State v. Boyd,
321 N.C. 574, 578, 364 S.E.2d 118, 120 (1988) (evidence admissible
when it tended to demonstrate defendant's scheme to take sexual
advantage of young female relatives left in his custody while his
wife worked);
State v. Gordon, 316 N.C. 497, 505, 342 S.E.2d 509,
513 (1986) (evidence of sexual intercourse with three-year-old
daughter admissible as showing a plan or a scheme in prosecution
for sexual intercourse with five-year-old daughter);
State v.
DeLeonardo, 315 N.C. 762, 771, 340 S.E.2d 350, 357 (1986) (evidence
of sexual activity with daughter admissible in prosecution for
sexual abuse of son as showing common plan or scheme). Since the
juvenile court did not err in admitting this testimony,
this
assignment of error is overruled. Affirmed.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).
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