An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-319


Filed: 1 April 2003


WILLIAM DAVID MCKINNEY,                Rockingham County                
                                No. 99 J 79

    Appeal by juvenile from disposition and commitment order entered 10 April 2001 by Judge Frederick B. Wilkins in Rockingham County District Court. Heard in the Court of Appeals 7 January 2003.

    Attorney General Roy A. Cooper, by Assistant Attorney General Jane T. Hautin, for the petitioner.

    Nancy R. Gaines for respondent juvenile.

    GEER, Judge.

    In this case, we must decide whether N.C. Gen. Stat. § 7B-2400 _ which provides that a court "shall" give a juvenile a "reasonable opportunity" to prepare a defense if the court grants a motion to amend the juvenile petition _ requires the court to grant a continuance ex mero motu. We hold that it does not. In addition, the juvenile contends that the juvenile court erred under Rule 404(b) of the Rules of Evidence in admitting evidence of other sexual misconduct. Because the evidence of a second contemporaneous assault was admissible under Rule 404(b) as evidence of a plan or scheme, we find no error.

    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.
    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.
    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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