An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-253


Filed: 6 January 2004


    v .                             Guilford County
                                No. 01 CRS 086226

    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.


    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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