Appeal by defendant from judgment filed 29 October 2002 by
Judge John O. Craig, III in Guilford County Superior Court. Heard
in the Court of Appeals 19 November 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Bryan Gates for defendant-appellant.
BRYANT, Judge.
Kennedy Matthews Durham (defendant) appeals from a judgment
filed 29 October 2002 entered consistent with a jury verdict
finding him guilty of indecent liberties with a child.
At trial, the following evidence was presented: On 23 January
2001, six-year-old J.C. was dropped off by her mother at the home
of thirty-year-old defendant, J.C.'s uncle. Defendant and his wife
had agreed to watch J.C. while her mother went to school. That
evening, defendant's wife left to go to the laundromat, while
defendant stayed home to watch J.C. and his two sons.
While the three children were playing in the boys' room,
defendant came in and told J.C. he wanted to talk to her. J.C.
went with defendant into his bedroom. At defendant's request, J.C.sat on his lap with her back against his chest. While talking,
defendant “mov[ed] around . . . like he was humping [her].” J.C.
“could feel” defendant's penis “sticking up” under her “bottom.”
When defendant's sons came in the bedroom, defendant told J.C. to
get off his lap.
Over defendant's objection, the trial court admitted (1)
evidence of defendant's 1991 convictions pursuant to the Uniform
Code of Military Justice for rape, carnal knowledge, adultery, and
indecent acts with a child under the age of 16, and (2) testimony
of defendant's sexual acts with his biological daughter S.D. from
1995 to 1997. The 1991 convictions resulted from several incidents
involving J.H., defendant's then thirteen-year-old neighbor. On 17
May 1991, J.H.'s mother requested defendant to pick up J.H. from
school. While driving J.H. home in his car, defendant fondled her
breast. Two days later, when J.H. came over to defendant's trailer
home, defendant kissed J.H. and engaged in sexual intercourse with
her. About three days later, when defendant went to J.H.'s trailer
home, they again kissed and had sexual intercourse.
Following the 1991 military convictions, defendant was
imprisoned for five years. After his release, defendant's
biological daughter S.D., then six or seven years old, was sent by
her mother (defendant's former wife) to visit him for two summers.
While S.D. was sleeping in defendant's home, he came into her room
and put his “dingie” in her “pocketbook” “more than once.” S.D.'s
mother testified she had taught S.D. to use the term “dingie” for
penis and “pocketbook” for vagina. Defendant was not charged withsexual acts against S.D., who at the time lived primarily with her
mother in the state of Tennessee. Defendant did not present any
evidence at trial.
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The sole issue on appeal is whether the trial court erred in
admitting evidence of defendant's prior sexual acts with J.H. and
S.D. Defendant argues those prior acts were not similar to the
offense at issue to establish a common scheme or plan and therefore
should have been excluded. We disagree.
“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, [or] plan . . . .” N.C.G.S. § 8C-1, Rule 404(b)
(2001). Two constraints limit the admissibility of evidence under
Rule 404(b): the similarity and temporal proximity between the
charged offense and the prior acts.
State v. Brothers, 151 N.C.
App. 71, 76, 564 S.E.2d 603, 607 (2002);
see also State v. Starner,
152 N.C. App. 150, 153, 566 S.E.2d 814, 816 (2002). “The
similarities between the crime charged and the prior acts . . .
need not 'rise to the level of the unique or bizarre' in order to
be admissible.”
Brothers, 151 N.C. App. at 76, 564 S.E.2d at 607
(citation omitted). Moreover, our Courts “have been 'markedly
liberal in admitting evidence of similar sex offenses to show one
of the purposes enumerated in Rule 404(b).'”
Id. (citation
omitted);
see also State v. Bowen, 139 N.C. App. 18, 29, 533 S.E.2d248, 255 (2000).
The trial court properly admitted evidence of defendant's
prior sexual acts with J.H. and S.D. As the trial court noted,
the most important similarity among those prior acts and the
offense at issue is that they were all committed while the mothers
of the young victims were absent and thus indicated a common scheme
of exploiting the victims' availability and susceptibility.
See
Brothers, 151 N.C. App. at 76-77, 564 S.E.2d at 607 (holding the
prior sexual acts were admissible to show a common plan,
opportunity, and identity where they and the acts at issue shared
certain similarities and were committed by the defendant against
his stepdaughters while their mother was at work). Furthermore,
the common scheme is not negated by the various sexual acts with
different victims.
See State v. Williams, 303 N.C. 507, 513, 279
S.E.2d 592, 596 (1981) (holding the evidence of the defendant's
lifting up the shirt of a twelve-year-old girl and fondling her
breast on or about the date he committed cunnilingus and anal
intercourse against two other younger girls was admissible to show
his intent and plan to commit the latter offenses);
Bowen, 139 N.C.
App. at 30, 533 S.E.2d at 255-56 (holding harmless the joinder of
sex offenses that occurred over twelve years and involved the
defendant's daughter, his niece, and an unrelated minor female,
even though the defendant did not commit the offenses in any
special way or place, because the evidence concerning each victim
would have been admissible in the separate trials of the others to
prove
modus operandi under Rule 404(b)). As defendant concedes in his brief, temporal proximity between
the acts is not an issue in this case. After the 1991 incident
involving J.H., defendant was imprisoned for five years.
Afterward, he committed uncharged sexual acts against S.D. Five
years later, defendant committed the offense at issue.
See State
v. Blackwell, 133 N.C. App. 31, 36, 514 S.E.2d 116, 120 (1999)
(concluding a six-year interval, excluding the defendant's prison
time, between the prior bad acts and the offense at issue was not
too remote to preclude the admission of the acts under Rule
404(b)). Because the similarity and temporal proximity between the
prior acts and the offense at issue exist, defendant's assignment
of error is overruled.
See Brothers, 151 N.C. App. at 76, 564
S.E.2d at 607.
No error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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