STATE OF NORTH CAROLINA
v. Person County
Nos. 03 CRS 3104-05, 53592
ROBERT WAYNE SMITHEY
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Anne M. Middleton, for the State.
Brian Michael Aus, for defendant-appellant.
JACKSON, Judge.
On 10 November 2003, Robert Wayne Smithey (“defendant”) was
indicted for taking indecent liberties with a child, statutory sex
offense of a person who is thirteen, fourteen, or fifteen years
old, and statutory rape of a person who is thirteen, fourteen, or
fifteen
years old
.
The case was tried at the 20 September 2004
Criminal Session of Person County Superior Court.
The evidence presented at trial tended to show the following:
The victim, (“E.R.”), was born on 30 March 1988 and was sixteen at
the time of trial. Defendant was her aunt's boyfriend. E.R.
considered her aunt to be her mother. Defendant and her aunt first
started dating in April of 2000 and moved in with them in June2000. At first, defendant treated E.R. like a daughter. However,
the relationship eventually changed.
Sometime around August 2000, defendant took E.R. up to his
wife's house to pick up some items. Defendant and his wife were in
the process of getting a divorce. E.R. testified that defendant
“started kissing me on the way over there to his house. He kind of
tried to mess with my brests [sic] and stuff.” E.R. threatened to
tell her aunt, but she did not.
After realizing that E.R. was not
going to tell her aunt, defendant again started kissing E.R. and
“messing” with her breasts. E.R. testified that “he took it a
little bit further at a time to see how far that he could go with
me.” In early 2001, things progressed to the point that the two
would have their clothes on and make like they were having sex.
Defendant told E.R. that he wanted to have “real sex” with her.
Just prior to her thirteenth birthday, in March 2001,
defendant was on top of E.R. and the two had their clothes on.
Defendant pulled down E.R.'s pants, pulled out his penis, and put
it in her. However, she made him stop because it hurt. They tried
again a week later. E.R. testified that it did not hurt as bad
this time so “it went a little further,” with defendant entering
her “maybe 10 times.” E.R. further testified that from that point
on, the two had sex “maybe everyday. . . to maybe once or twice a
week.” E.R. stated that the two began having oral sex in 2002,
which would usually lead to sexual intercourse. In 2003, the two
started having anal sex approximately once per month.
Defendant was convicted on all charges and
was sentenced to aterm of 240 to 297 months imprisonment.
Defendant appeals.
Defendant first argues
that the trial court was without
jurisdiction to try him on the charges of statutory rape and
statutory sex offense because the State indicted him using short-
form indictments.
We disagree.
In State v. Daniels, 164 N.C. App. 558, 596 S.E.2d 256, disc.
review denied, 359 N.C. 71, 604 S.E.2d 918 (2004)
, this Court held
that North Carolina General Statutes, section 15-144.2 permits a
short-form indictment when a defendant is charged with statutory
sexual offenses with a thirteen, fourteen, or fifteen
year old.
Daniels, 164 N.C. App. at 565, 596 S.E.2d at 260.
This Court
reasoned that:
While section (b) of the statute provides
specific requirements for short-form
indictments for sexual offenses committed
against persons under the age of 13, the
statute does not preclude short-form
indictments for sexual offenses committed
against persons 13, 14, or 15 years old. Such
an indictment would simply be governed by
section (a) of the statute.
Id. Thus, pursuant to Daniels, use of the short-form indictment
here for statutory sexual offense was sufficient. North Carolina
General Statutes, section 15-144.1, the statute pertaining to
indictments for rape, mirrors North Carolina General Statutes,
section 15-144.2 in relevant part. Therefore, the reasoning
applied by this Court in Daniels similarly would apply, and the
short-form indictment for statutory rape is sufficient.
Accordingly, the assignment of error is overruled.
Defendant next argues
that the trial court erred by allowinghis sons to testify that he had sexually abused them. Defendant
contends that their testimony should have been excluded under Rules
403 and 404(b) of the North Carolina Rules of Evidence. First,
defendant asserts that the alleged sexual ab
use was not
sufficiently similar to the acts alleged by the victim. Defendant
notes that his children were male, while the victim here is female.
Second, defendant claims his sons' allegations lacked temporal
proximity to the instant charges.
After careful review of the record, briefs, and contentions of
the parties, we find no error.
Rule 404(b) of the North Carolina
Rules of Evidence provides:
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,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
G.S. 8C-1, Rule 404(b) (2004). Our Court has stated that:
This rule 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. Washington, 141 N.C. App. 354, 366, 540 S.E.2d 388, 397
(2000) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990)), disc. review denied, 353 N.C. 396, 547 S.E.2d 427
(2001)(emphasis in original).
In the instant case, the State
presented evidence that defendant had sexually abused his sons,including having oral and anal sex with one of his sons. The
testimony from one of his sons concerned acts allegedly committed
ten to sixteen years prior to trial, while the testimony from his
other son concerned acts occurring more than eight years prior to
trial.
We find State v. Dyson, 165 N.C. App. 648, 599 S.E.2d 73
(2004), disc. review denied, 359 N.C. 412, 612 S.E.2d 325 (2005),
to be persuasive. In Dyson, the victim, an eight year old girl,
accused the defendant of forcing her to perform oral sex on him.
At trial, evidence was introduced that the defendant previously had
admitted performing oral sex on a nine-year-old boy eleven years
earlier.
This Court stated that:
While the period of elapsed time since the
prior sexual acts is an important part of the
Rule 403 balancing process, and the passage of
time may “slowly erode commonalities” between
the prior acts and the acts currently charged,
the lapse of time in this case does not
sufficiently diminish the similarities between
the acts. Furthermore, “remoteness is less
significant when the prior conduct is used to
show intent, motive, knowledge, or lack of
accident.”
Id. at 655-56, 599 S.E.2d at 78 (citations omitted).
Accordingly,
this Court concluded that the trial court did not abuse its
discretion in admitting the testimony. Id. at 656, 599 S.E.2d at
78.
As in Dyson,
the victim here was female while the allegations
of prior sexual abuse concerned a male victim(s).
Additionally,
the allegations of prior sexual abuse here were not any more remote
in time than the abuse in Dyson. Moreover, there are othersimilarities between the sexual abuse alleged by the victim and
that alleged by the defendant's sons. Defendant engaged in these
acts while the victims' mothers were out of the house or asleep, or
when the victims were away from their home. Defendant engaged in
oral and anal sex with the victim and with his sons. Additionally,
the sexual abuse of the victim, as well as that of his sons,
continued over a period of years. As in Dyson, the record clearly
indicates that the trial court applied the appropriate balancing
test of North Carolina General Statutes section 8C-1, Rule 403.
Id. The trial court determined that the probative value of the
evidence was not substantially outweighed by unfair prejudice. The
trial court then determined that the testimony was admissible to
show intent, common scheme or plan on the part of the defendant to
commit the acts. Thus, we conclude that the trial court did not
abuse its discretion.
No error
.
Judges
WYNN and CALABRIA concur.
Report per Rule 30(e).
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