NO. COA04-1341

NORTH CAROLINA COURT OF APPEALS

Filed: 21 March 2006

    Appeal by defendant from judgments entered 1 March 2004 by Judge Susan C. Taylor in Superior Court in Davidson County. Heard in the Court of Appeals 18 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State.

    J. Clark Fischer, for defendant-appellant.

    HUDSON, Judge.
    In April 2003, the grand jury indicted defendant on multiple counts of first-degree statutory sexual offense. On 1 March 2004, the jury returned guilty verdicts against defendant on all counts. Defendant appeals. We conclude that there was no error.
    The evidence tends to show the following facts. S.H., who was fifteen at the time of trial, was born in 1988. Defendant married S.H.'s paternal grandmother when S.H. was about six years old. S.H. testified that around this time, when he was visiting his grandmother, after his grandmother left the house, defendant calledhim into a room, told him to take his clothes off, and then defendant performed oral sex on him. Around 1995, after S.H. went to live with his grandmother and defendant, additional similar incidents occurred. In addition to performing oral sex on S.H., defendant also had S.H. perform oral sex on him and had S.H. taste his ejaculate. S.H. testified that defendant also masturbated in front of him and instructed him to lie on his side on the bed, where defendant would engage in anal intercourse with him. S.H. testified that he asked defendant to stop, but he did not and told S.H. not to tell anyone. Defendant also told S.H. that if he told anyone, defendant would stop being his grandfather. S.H. testified that he was afraid of defendant, even though defendant never threatened him with physical harm. After awhile, a pattern developed whereby, until about 2002, such sexual acts would occur every time S.H.'s grandmother left the house. S.H. also testified that during a cub scout camping trip when he was seven or eight, he was in a tent with defendant and his cousin, C.B., and when S.H. refused to perform oral sex on defendant, defendant asked C.B., who acquiesced, and S.H. saw C.B. perform oral sex on defendant.
    Defendant argues that the trial court committed prejudicial error when it allowed C.B. to testify, over defense objection, that he was also sexually abused by defendant. Defendant contends that this testimony was inadmissible character evidence under both Rule404 (b) and Rule 403. We disagree.
    Generally, evidence of other crimes or acts is not admissible to prove character or propensity to commit similar acts. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2004). “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.” Id. Our Supreme Court has stated that:
        Rule 404(b) . . . is a clear 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. Golphin, 352 N.C. 364, 443, 533 S.E.2d 168, 222 (2000), cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001) (emphasis in original). Although such evidence may tend to show a defendant's propensity to commit a certain type of act or wrong, it is admissible under Rule 404(b) so long as it is relevant for some other purpose than to show propensity. State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 299 (1996). Additionally, our courts have been “markedly liberal in admitting evidence of similar sexual offenses,” pursuant to Rule 404(b). State v. Brothers, 151 N.C. App. 71, 76, 564 S.E.2d 603, 607 (2002), appeal dismissed and disc. review denied, 356 N.C. 681, 577 S.E.2d 895 (2003) (internalquotation marks omitted). In order for such evidence to be admissible, it must be sufficiently similar and close in time. Frazier at 616, 476 S.E.2d at 300.
    Here, during trial, the court held a voir dire hearing regarding the State's proposed 404(b) evidence: testimony by C.B., S.H.'s cousin and defendant's nephew, of similar sexual abuse by defendant . The court ruled that such evidence was admissible to show a common scheme or plan to perpetrate sexual acts upon young boys, to show the identity of the perpetrator of the acts upon the young boys, and to show the motive and opportunity of the defendant to perpetrate these acts. C.B. then testified that he went to live with defendant in 1999 and that when he was home alone with defendant, defendant would call him into his room, tell him to undress, perform oral sex on C.B., have C.B. perform oral sex on him, and would ejaculate in C.B.'s mouth. C.B. also testified that defendant would have him lie on his side on the bed, where defendant would engage in anal intercourse with C.B., and defendant would then have C.B. perform anal intercourse on him. C.B. stated that he was afraid of defendant and that defendant had “whooped” him before. C.B. testified that he did not recall the incident during the cub scout camping trip that S.H. testified about.
    Defendant admits that the testimony of S.H. and C.B. was similar, but contends that several differences rendered thetestimony inadmissible. As to the camping incident, C.B. stated that he had no recollection of it, while S.H. testified about it in detail. C.B. stated that he was afraid of defendant and that he had “whooped” C.B. before, while S.H. stated that defendant had never physically harmed him. S.H. stated that defendant was normally dressed when he called him into his room, while C.B. stated that defendant was usually already naked when he called him in. C.B. described anal intercourse in signficantly greater detail than S.H. and described complaining of the pain and defendant ignoring the complaints.
    Defendant cites State v. White in support of his argument that the acts related by the two boys were so dissimilar as to render the testimony inadmissible. 135 N.C. App. 349, 520 S.E.2d 70 (1999). In White, defendant was charged with raping a nine-year- old neighbor at knife-point, and the Court concluded that evidence that the defendant had performed cunnilingus on a four-year-old girl was improperly admitted under Rule 404(b). Id. at 353, 520 S.E.2d at 74. The Court explained:
        Except for the fact that both incidents involve young females who were allegedly assaulted in their own homes, there are few points of similarity. In the case involving R[.]S[.], defendant is accused of breaking into her home during the daytime at a time when she was alone; and having forcible vaginal intercourse with her by means of a weapon, threats, and his superior physicalstrength. There was also evidence that the sexual act included penetration; the victim, R[.]S[.], who was nine years old at the time, was upset and crying hysterically in the aftermath of the incident. In the later incident involving Dominique, the act allegedly occurred at night, at a time the four-year-old child's caretaker was present in the home; defendant was in the child's home by permission, watching television; there was no evidence of the use of a deadly weapon or threats to Dominique; the sexual act alleged was cunnilingus; the child did not mention the act after it occurred, and was apparently laughing and happy when her caretaker saw her after the alleged incident . . . .
Id . The Court went on to State that, “[w]hen the features of the . . . act offered under Rule 404(b) are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value.” Id. at 354, 520 S.E.2d at 73 . However, we conclude that here the similarities are sufficient to satisfy the requirements of Rule 404(b).
    Here, the evidence showed that both victims were relatives of the defendant, were about the same age, and were sexually assaulted when defendant was alone with them while they were in his custody or care. Defendant would instruct both boys to take off their clothes and would perform oral sex on them and have them perform oral sex on him. Defendant masturbated in front of both boys and would also have both boys taste or swallow his ejaculate. Defendant told both boys to lie on their side on his bed and wouldengage in anal intercourse with them and he directed them to perform anal sex on him. Both boys reported being scared of defendant and did not report the abuse until later when they were physically away from him. Thus, unlike White, where the Court found “few similarities” between the acts, here there are numerous similarities. The variations noted by defendant are not differences like those in White, and are far outweighed by the similarities. “It is not necessary that the similarities between the two situations rise to the level of the unique and bizarre.” State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635, disc. review denied, 353 N.C. 269, 546 S.E.2d 114 (2000). We conclude that the evidence was properly admitted to show a common scheme or plan under Rule 404(b).
    Defendant also argues that even if the evidence was properly admitted under Rule 404(b), it should have been excluded under Rule 403. Rule 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403 (2004). It is well-established that this determination is within the sound discretion of the trial court. See, e.g., State v. Williamson, 146 N.C. App. 325, 334, 553 S.E.2d 54, 61 (2001). Because defendant has failed to show an abuse of discretion, we overrule this assignment of error.    No error.
    Judges STEELMAN and JACKSON concur.
    Report per Rule 30(e).

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