State v Bynum, 163 NC App 611 (03-303) 04/06/2004

    Debbie Thomas (“Thomas”) is the mother of A.T., the fourteen- year-old victim. At the time of the sexual offenses, defendant was twenty-four years old, was dating Thomas, and was a frequent guest of her home.
    On 5 May 2002, Thomas went to bed and left defendant in her living room watching television. She woke up some time later, went to her daughter's bedroom, turned on the lights, and founddefendant kneeling by A.T.'s bed. Defendant's hands were under the covers and her daughter's panties were pulled down exposing her buttocks. Defendant stated that nothing had happened between them. As Thomas reached for the telephone, defendant grabbed the phone and threatened to kill her. Thomas's son took the phone, went outside, and called the police.
    Detective Chris Russell (“Detective Russell”) responded to the call. Detective Russell spoke with A.T. and she stated that defendant came to her bed, kissed her, and rubbed her legs and her genitalia. Detective Russell spoke with A.T. again the following afternoon and learned that defendant had sexual intercourse with her around 14 February 2002.
    Detective Christopher Hill (“Detective Hill”) spoke with defendant. Defendant admitted that he engaged in cunnilingus and fellatio with A.T. and wanted to have sexual intercourse, but that A.T. was afraid her mother would come into the room. Detective Russell also spoke with defendant, who told Detective Russell that he had rubbed A.T.'s legs and “wanted to see what would happen.”
    A.T. testified that beginning in February 2002 she and defendant started having sexual intercourse. The first time defendant awoke her, he pulled her panties down, touched her genitalia, inserted his finger into her vagina, and had sexual intercourse with her. A.T. also testified that she and defendant engaged in sexual intercourse and cunnilingus on three or four occasions between February and May 2002.
    On one occasion, A.T.'s friend, K.S., was present. K.S.testified that defendant took their clothes off, inserted his finger inside A.T.'s vagina, and took turns having sexual intercourse with both girls.
    Defendant did not offer any evidence. The jury convicted defendant of two counts of indecent liberties with a minor and two counts of statutory sex offense. The jury found defendant to be not guilty of statutory rape. He was sentenced to consecutive sentences in the presumptive range on all counts. Defendant appeals.

    Defendant argues the probative value of K.S.'s testimony was outweighed by the danger of unfair prejudice. He further contends that it inflamed the jury and placed defendant in a position of double jeopardy because he was under separate indictment for the sexual offenses on K.S. We disagree.
    Rule 404(b) of the North Carolina Rules of Evidence prevents the admission into evidence of “other crimes, wrongs, or acts . . . to prove the character of a person in order to show that he acted in conformity therewith.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). The admissibility of evidence under Rule 404(b) is“subject to the weighing of probative value versus unfair prejudice mandated by Rule 403.” State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). Rule 404(b) is a rule of inclusion, not exclusion. Id. at 550, 391 S.E.2d at 175. “Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.” State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990).
        [A]dmission of evidence of a criminal defendant's prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context, has been approved in many other jurisdictions following adoption of the Rules of Evidence. This exception is known variously as the “same transaction” rule, the “complete story” exception, and the “course of conduct” exception. Such evidence is admissible if it forms part of the history of the event or serves to enhance the natural development of the facts.

Agee, 326 N.C. at 547, 391 S.E.2d at 174 (internal citations omitted).
    At trial, K.S. testified that she and A.T. were best friends and that she spent the night at A.T.'s house about once every two weeks. Late one night while she was staying at A.T.'s house, defendant came into A.T.'s room and began rubbing their legs. Defendant removed both girls' clothing and took turns having sexual intercourse with them for about thirty minutes. Defendant was charged and indicted separately for the offenses on K.S.
    K.S.'s testimony shows the “complete story” regarding the night defendant had sex with both victims was admissible to establish the “natural development of the facts.” Id. Defendanthas failed to show the trial court abused its discretion by allowing K.S. to testify regarding the events that occurred. This assignment of error is overruled.

    Defendant argues the trial court erred in denying his motion to dismiss all the charges at the close of all evidence. We disagree.
    When a defendant moves to dismiss charges for insufficient evidence, the trial court must determine whether substantial evidence of each element of the offense exists and whether substantial evidence shows that defendant was the perpetrator of the offense. State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . [and] simply means that the evidence must be existing and real, not just seeming or imaginary.” Id. (citation omitted).
        In determining whether to grant a motion to dismiss at the close of all the evidence, the trial court must view all the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference that may be drawn therefrom supporting the charges against the defendant. If the court determines as a matter of law that the State has offered substantial evidence of each element of the charged offenses sufficient to convince a rational trier of fact beyond a reasonable doubt of defendant's guilt, then defendant's motion to dismiss is properly denied.

State v. Griffin, 319 N.C. 429, 433, 355 S.E.2d 474, 476-477 (1987) (internal citations omitted).
    Defendant was charged with two counts of taking indecentliberties with a minor in violation of N.C. Gen. Stat. § 14-202.1. To survive defendant's motion to dismiss, the State must produce substantial evidence to show:
        (1) the defendant was at least 16 years of age, (2) he was five years older than his victim, (3) he willfully took or attempted to take an indecent liberty with the victim, (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.

State v. Rhodes, 321 N.C. 102, 104-105, 361 S.E.2d 578, 580 (1987); see N.C. Gen. Stat. § 14-202.1 (2003). Defendant was also charged with two counts of statutory sex offense under N.C. Gen. Stat. § 14-27.7A(a) (2003), which required the State to show: (1) defendant engaged in vaginal intercourse or a sexual act with another person who is thirteen, fourteen, or fifteen years old and (2) the defendant is at least six years older than the victim.
    Considering the evidence in the light most favorable to the State, substantial evidence was presented to support the trial court's denial of defendant's motion to dismiss the charges. The evidence showed defendant was twenty-four years old and A.T. was fourteen years old at the time of the offenses. On several occasions between February and May 2002, defendant entered A.T.'s bedroom, rubbed her vaginal area with his hands, kissed her, engaged in sexual intercourse with her, and ejaculated on her bed.
    Defendant also contends the evidence was insufficient to support the consecutive sentences imposed by the trial court. Defendant did not assign error to the trial court's imposition ofpunishment. We do not address this issue as it is not properly before this Court. See N.C.R. App. P. 10(a) (2004); see also N.C. Gen. Stat. § 15A-1354(a) (2003) (discretion to impose consecutive or concurrent sentences rests with the sentencing judge).
    Substantial evidence supports the elements of the charges against defendant and tends to show defendant committed the offenses. The trial court did not abuse its discretion in denying defendant's motion to dismiss. This assignment of error is overruled.