An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-263


Filed: 17 January 2006


         v.                    Person County
                            Nos. 03 CRS 3104-05, 53592

    Appeal by defendant from judgment entered 22 September 2004 by Judge W. Osmond Smith, III, in Person County Superior Court. Heard in the Court of Appeals 27 December 2005.

    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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