An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-142


Filed: 3 February 2004

     v .                              Davidson County
                                     No. 98 CRS 15196

    Appeal by defendant from judgment entered 3 August 2000 by Judge W. Erwin Spainhour in Davidson County Superior Court. Heard in the Court of Appeals 12 November 2003.

    Attorney General Roy Cooper, by Assistant Attorney General, Elizabeth N. Strickland, for the State.

    Jon W. Myers for defendant appellant.

    McCULLOUGH, Judge.

    Defendant James Darren King was tried before a jury at the 1 August 2000 Criminal Session of Superior Court for Davidson County after being charged with First Degree Sexual Offense on a Child. The State's evidence showed the following: In 1998, B.L. was eight years old and lived with her mother, Cynthia King; her brother, Josh; and her stepfather and defendant in this case, James Darren King. On the night of 17 July 1998, B.L. was at home with her brother, her cousin, and defendant. Her mother was not home because she was working the night shift.
    That evening, Josh and B.L. were arguing over who would get the couch. Defendant asked B.L. to sleep in his and her mother'sbed. When B.L. was in bed and about to go to sleep, defendant joined her in the bed, put his finger inside her panties, and started rubbing. B.L. testified that defendant touched her inside “where I pee out of.” She further indicated that she was scared. After defendant stopped, he took her hand and “put it on where he peed” and began moving her hand up and down for about two to three minutes. Defendant told B.L. that if she would not tell her mother, he would never do it again.
    The next morning, B.L. told her brother about what happened. B.L. also told her mother, Cynthia King, when she returned home from work the next morning. King testified that B.L. was crying when she stated, “James made me hold his weeny, and he put his hand on my private and stuck it in my private.”
    Cynthia King woke defendant and asked him about the incident. She asked B.L. to tell the events in front of defendant. However, defendant denied doing these things to B.L. Later that day, Cynthia and her sister, Sharon Faye McClain, looked at B.L. While they did not touch her, they observed that B.L. was red in her genital area and had light spots of blood on her panties.
    Around 18 July 1998, Cynthia took B.L. to see Dr. Robert Edgar Timberlake. Dr. Timberlake participates in the North Carolina Child Medical Evaluation Program and performs medical examinations to evaluate children for physical or sexual abuse. Dr. Timberlake testified that he first spoke to Cynthia and Josh alone. Then, the doctor interviewed B.L. without her family there, but in the presence of Lexington Police Officer, Angie Price, and an on-callworker with Social Services, Peter Hungerford. Dr. Timberlake explained that the purpose of the first interview was to properly diagnose and treat B.L. He further explained that Officer Price and Peter Hungerford were present to minimize the trauma and to make sure that B.L. would not have to be interviewed again and again.
    B.L. recounted to Dr. Timberlake, Officer Price, and Mr. Hungerford that defendant placed his finger inside her panties. When defendant asked her if she liked it, she responded, “No. It's sick.” B.L. also told them that defendant took her hand and put it on his penis. Once again, when defendant asked her if she liked it, she replied, “That's sick.”
    Prior to seeing Dr. Timberlake, B.L. had taken a bath. After the interview, Dr. Timberlake gave her a physical examination. After his examination, Dr. Timberlake felt that B.L. had been a victim of child abuse by digital fondling with digital penetration of the labia.
    At the emergency room, Officer Price took a detailed statement from B.L. The trial court allowed Officer Price to read her notes from the interview over defendant's objection.
    Mr. Hungerford and defendant came to see Officer Price at the police station. Officer Price took defendant to the interview room and informed him that he was not under arrest. Defendant was advised of his Miranda rights, a fact defendant acknowledged in writing. Officer Price took two statements from defendant in whichhe admitted to abusing B.L. and E.L. Over objection, these statements were read to the jury.
    Cynthia King testified that L.L. and E.L. told her that defendant had sexually assaulted them. King also testified that defendant called her after his arrest, and admitted that he had molested her daughters over a period of two and one-half years. In another telephone conversation, defendant told Cynthia, “I told my daddy I done it” and that he said “daddy said to deny it.”     At trial, L.L. was examined voir dire in an offer of proof. She later testified to the jury about defendant's abuse of her. She stated that she was thirteen years old at the time of trial. She further indicated that two years earlier, defendant abused her while her mother was at work. Defendant asked her to bring a cover to the living room and then told her to sit on his lap. When she did, he placed his hand on “the front part of [her] private area.” L.L. was scared and told him to stop. Defendant did not stop, but continued to rub her for about five minutes. On another occasion, defendant showed L.L. photographs of naked people on the family's computer. And, on another day, defendant stuck L.L.'s head under the covers when he was naked. L.L. testified that defendant threatened to hurt her if she told anyone about these events. In spite of these threats, L.L. did tell E.L. about these events a few weeks after they happened. However, she did not tell her mother until after the assault on B.L.
    Sharon McClain testified that B.L. told her about the sexual abuse. She also stated that defendant admitted to doing thesethings. Josh also testified and corroborated B.L.'s testimony about the incident on 17 July 1998.
    The defense presented the following evidence: Harold King, Jr., defendant's father, testified that Cynthia King was upset with defendant because he had not talked to her for two weeks.
    Defendant testified and denied that he sexually abused B.L., L.L., or E.L. He stated that he and Cynthia were in the process of separating and had been having trouble since 1997. Defendant indicated that on 18 July 1998, he formed a plan to give a false statement to Hungerford. His motive was to get some medical or mental treatment and have something small on his legal record before returning to his life.
    Defendant then gave Officer Price a statement that corroborated Cynthia King's account of what happened to B.L. When Officer Price asked him about E.L., defendant made something up because he was so surprised. After making these statements, defendant was arrested. On cross-examination, defendant admitted that he had a January 2000 conviction for indecent liberties with a minor.
    Defendant was convicted of first-degree sexual offense on a child and sentenced to imprisonment for 240-297 months. Defendant appealed in open court.
    On appeal, defendant argues that the trial court erred by: (I) allowing L.L. to testify about defendant's sexual assault of her, (II) admitting defendant's statement about his sexual assault of E.L., and (III) permitting various pieces of hearsay evidence. Wedisagree and conclude that defendant received a fair trial free from reversible error.

    I. Testimony of L.L.
    Defendant first contends that the trial court committed reversible error by allowing into evidence prior bad acts. In particular, defendant objects to the trial court's decision to allow the State to present testimony of L.L., the victim's thirteen-year-old sister. L.L. testified that approximately one year earlier, defendant touched her in an inappropriate way while her mother was at work: “He put his hand down my -- the front part of my private area. . . .It went in a little bit and he rubbed it up and down.” She also mentioned that defendant showed her pornographic pictures and stuck her head underneath the covers while he was naked.
    Under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001),
        [e]vidence 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.

    This Court stated in State v. Blackwell, 133 N.C. App. 31, 34- 35, 514 S.E.2d 116, 119, cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999) (citations omitted):
        Our Supreme Court has characterized rule 404(b) as a general rule of inclusion of relevant evidence of other crimes, wrongs, or acts which is subject to but one exception, evidence should be excluded if its only probative value is to show that the defendanthas the propensity or disposition to commit an offense of the nature of the crime charged. Accordingly, although “evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under rule 404(b) so long as it is also relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.”

Id. (citations omitted). The Court further discussed the admissibility of similar sex offenses:
            Significantly, our Supreme Court has been “markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in rule 404(b).” Indeed, such evidence is relevant and admissible so long as the incidents are sufficiently similar and not too remote.

Id. at 35, 514 S.E.2d at 119 (citations omitted).
    In the case at bar, the trial court properly admitted L.L.'s testimony because it tended to show that the assaults on B.L. and L.L. were similar. Both girls were stepdaughters of defendant; before the events occurred, each child liked defendant; both girls were digitally fondled, and both incidents occurred while their mother was at work; defendant was in a position of control over each child since the mother was absent; finally, after the assaults, defendant told both girls not to tell their mother. We conclude that the inclusion of this testimony was for a proper purpose: to show a common scheme or modus operandi of defendant. Defendant systematically planned, and later carried out his plan, to abuse his stepdaughters while their mother was not home.     To the extent that defendant engaged in additional acts with L.L. such as showing her pornography and placing her head under the covers while he was naked, the trial court did not abuse its discretion by ruling that this evidence was also part of defendant's common scheme or modus operandi. Like the incidents of improper touching, defendant did these things to L.L. when her mother was not around. Thus, they are further evidence of defendant's plan to act inappropriately with the children when their mother was not there to witness the behavior.
    The trial court also properly found that the assaults were not too remote in time. B.L. was allegedly abused on 17 July 1998, and L.L. was allegedly abused sometime in 1997. The fact that these assaults occurred about one year apart does not preclude admission of the evidence. This Court has allowed evidence of similar sexual misbehavior that occurred ten years earlier to show the existence of a common plan or scheme. State v. Penland, 343 N.C. 634, 653- 54, 472 S.E.2d 734, 745 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725, reh'g denied, 520 U.S. 1140, 137 L. Ed. 2d 366 (1997). For these reasons, this assignment of error is overruled.
II. Defendant's Own Statements
    In his next assignment of error, defendant objects to the admission of his voluntary statement about his conduct toward his other stepdaughter, E.L. In a statement to Lexington Police Officer, Angie Price, defendant admitted to a number of occasions in which he sexually assaulted E.L. Defendant argues that this evidence should not have been admitted under a common scheme orplan because the acts were dissimilar from the offense with which defendant is charged. We disagree.
    A review of the record indicates that these acts were quite similar. Defendant told Officer Price that he rubbed E.L.'s vagina on at least four separate occasions between September 1997 and February of 1998. We conclude that this evidence was admissible under the common scheme or modus operandi exception because it was sufficiently similar. Moreover, the fact that the assaults against E.L. occurred within one year of the assault on B.L. means that the events were not too remote in time. Finally, our courts have been liberal in allowing evidence of other sex crimes under the common plan or scheme exception: “This position has included allowing the admission of evidence showing sexual assaults by the defendant against people other than the victim in the crime for which he is on trial.” State v. Gordon, 316 N.C. 497, 504, 342 S.E.2d 509, 513 (1986). We reject this assignment of error.
III. Hearsay Evidence
    Defendant objects to the admission of several pieces of evidence as hearsay. Defendant first argues that the trial court erred by allowing Cynthia King, the victim's mother, to testify about B.L.'s description of the sexual assault the morning after it occurred.
    Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted[]” and is not admissible unless it is subject to a recognized exception. N.C. Gen. Stat.§ 8C-1, Rule 801(c) (2001). Under the excited utterance exception, a hearsay statement is admissible if it is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” N.C. Gen. Stat. § 8C-1, Rule 803(2) (2001). In North Carolina, “statements made by young children three days after an alleged sexual assault, which relate to the assault, have been deemed admissible under the excited utterance exception.” State v. Rogers, 109 N.C. App. 491, 501, 428 S.E.2d 220, 226, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1008, 128 L. Ed. 2d 54, reh'g denied, 511 U.S. 1102, 128 L. Ed. 2d 495 (1994).
    In this case, B.L.'s statements made the morning after the sexual assault were a spontaneous reaction to that startling experience. Based on our decision in Rogers, we conclude that B.L.'s statements to her mother were timely enough and spontaneous enough to constitute an excited utterance. Therefore, the testimony of Cynthia King relaying B.L.'s description of the sexual assault was properly admitted.
    Defendant also objects to a portion of Cynthia King's testimony describing a conversation she had with defendant after his arrest:
        Q. Other than that conversation with him [defendant], did you speak with him on the phone or in person?

        A. I had talked to him because -- as you know, phone calls are cut short, and I had talked to him a couple more times on the phone inreference as to what he had done with the kids. Then, I spoke with him at one point in time, and I -- I asked -- James, I said, well, you know, what did your daddy say? And he says -- My daddy said deny it. And what did you say? And he says -- I told my daddy I done it. And he said his daddy said to deny it. Everybody makes mistakes.

Defendant argues that this testimony was hearsay, and none of the exceptions apply.
    “[T]he erroneous admission of hearsay is not always so prejudicial as to require a new trial.” State v. Hickey, 317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986). “The defendant must still show that there was a reasonable possibility that a different result would have been reached at trial if the error had not been committed.” Id. We believe that defendant's argument is meritless. Even if we assume arguendo that any portion of this testimony was improperly admitted, defendant cannot prevail because he has not proved that a different result would have been reached if the testimony had not been admitted. The prosecution offered a mountain of evidence that tended to show that this defendant was guilty of the crime charged. First, the victim, B.L., testified that defendant touched her inappropriately while her mother was at work. The victim's mother and brother indicated that B.L. reported the abuse to them the very next day. Dr. Robert Timberlake examined B.L. and stated that in his opinion, B.L. was the victim of digital fondling. Evidence in the record also indicated that defendant had abused L.L. and E.L., the victim's sisters. Finally,defendant admitted to Officer Price that he had assaulted B.L. This assignment of error is overruled.    
    Finally, defendant argues that Officer Price should not have been allowed to read her interview notes of the victim taken when Dr. Timberlake, the treating physician, examined B.L. in the emergency room. Defendant contends that this was inadmissible hearsay. Once again, defendant's argument is unavailing because defendant has failed to show how the outcome of the case would have been different if the testimony had not been admitted. Hickey, 317 N.C. at 473, 346 S.E.2d at 657. Even if the trial court did exclude B.L.'s statement at the hospital, B.L. testified to the very same facts at trial, and at one point, defendant admitted to abusing B.L. Moreover, the prosecution presented substantial evidence that supported the conclusion that defendant was culpable. Accordingly, this assignment of error is meritless.
    After a careful review of the record, all of defendant's assignments of error, and the arguments of both parties, we conclude that defendant received a fair trial free from reversible error.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***