An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-700
                
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NORTH CAROLINA COURT OF APPEALS
        
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Filed: 7 February 2006



STATE OF NORTH CAROLINA

v .                         Nash County
                            Nos. 04 CRS 52849-51, 52323
                            
ROBERT EUGENE SMITH

    Appeal by defendant from judgments entered 12 January 2005 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 1 December 2005.

    Attorney General Roy Cooper, by Jane T. Hautin, Special Deputy Attorney General, and William P. Hart, Special Deputy Attorney General, for the State.

    William D. Spence for defendant.

    LEVINSON, Judge.

    Defendant (Robert Eugene Smith) appeals his convictions and judgments on four counts of taking indecent liberties with a child. We find no error.
    The relevant evidence presented at trial may be summarized as follows:     Defendant's twelve year old granddaughter B.B. testified that, when she was eleven years old, on four separate occasions in 2003 when she was visiting defendant's house, defendant rubbed her breasts and genitals. Sometime between Christmas 2003 and New Year's 2004, while defendant and B.B. were lying on the couch together watching a movie, defendant began rubbing her breasts under her shirt. Defendant continued to rub her breasts with hishand until the movie was over. B.B. was not wearing a bra under her shirt. “[H]e would stop and like leave his hand there and then it would be like five minutes afterwards he'd keep rubbing and then he'd stop and then keep going.” Another time that same fall of 2003, when defendant and B.B. were lying down together on the couch watching a movie, after B.B. had taken a shower, defendant “reached under my shirt and started fondling my breasts. He would play with -- he would rub them . . . and then he'd stop, rub them and stop, [b]ut he'd keep them in place. He wouldn't move his hand.” B.B. testified that she occasionally slept in defendant's waterbed with him. Once in the fall of 2003, defendant told her the waterbed was too cold to sleep in and he lay down with her on the f1oor to sleep. B.B. “woke up to him rubbing over my panties.” Another time in the summer of 2003, B.B. testified, defendant touched her “on [her] top area” inside her halter top. B.B. testified that sometimes her brother and sister were around but they were never in the same room with her when defendant rubbed her. Defendant told B.B. not to tell anyone what he was doing. Defendant called her brother and sister “snitches”. “[H]e would say that they would tell our little secret.” B.B. further testified that defendant had been touching her chest and “front area between [her] legs” since she was six years old. He would touch her when she was clothed and unclothed. When she was clothed, defendant would touch her under her clothing.
    Defendant's thirty-four year old daughter and the aunt of B.B. (hereafter “the aunt”) testified first on voir dire, and then attrial, that, from the time she was five years old until she was fourteen or fifteen years old, defendant rubbed her breasts and vagina. Sometimes the aunt was clothed when defendant rubbed her and at other times unclothed. When she was clothed, defendant would touch her inside her clothing. Sometimes defendant would take the aunt into the bed he shared with her mother and rub her while her mother slept.
    Officer Miste Strickland of the Nash County Sheriff's Department testified. She interviewed B.B. on 23 March 2004 concerning her allegations. B.B. told her defendant had touched her inappropriately for years. B.B. told the officer that defendant had massaged her breasts and vagina under her clothing. B.B. stated that it happened every weekend that she had stayed with her grandfather. Strickland interviewed defendant the day after she met with B.B. Defendant told Strickland he wrestled with B.B. a lot. Though defendant stated that he would not fight the charges against him, defendant did not admit to any wrongdoing. Defendant told Strickland that B.B. fabricated these allegations because she was mad at him for not coming to her birthday party.      Defendant presented evidence. Sergeant Jeff Lucas of the Nash County Sheriff's Department testified. Lucas testified that he spoke to B.B. and the aunt on 22 March 2004. B.B. told him that when she was seven or eight years old defendant would touch her top and bottom. B.B. also told Lucas that “[n]othing happened during that time” she stayed with defendant before Christmas 2003.    Linda Catherine Holmes Dickie, an investigator with the Nash County District Attorney's Office, had interviewed B.B. Dickie testified that her notes reflected that, sometime before Christmas, defendant watched the victim bathing and “tried to pull her to him, but she resisted[.]” Dickie further testified on cross-examination that, on the day she interviewed B.B., she “was so upset I'm not sure that anything she told me was divided into individual assaults that day.”
    Defendant testified. He denied all the material allegations, and stated that B.B. lied about the abuse because she was angry that he missed her birthday party. Defendant testified that B.B. told him that her step-father had “put his finger inside her private area[.]” Defendant testified that because B.B. sleepwalked when she was younger, she would come into bed with him at night. Defendant denied ever calling B.B.'s brother and sister “snitches” or saying that they would tell “our little secret.” Defendant was not questioned about the acts he was alleged to have committed on B.B.'s aunt.
    Defendant was found guilty on four counts of taking indecent liberties with a child and sentenced to four consecutive prison terms of 15 to 18 months. From these convictions and judgments defendant now appeals.
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    Defendant contends the trial court erred by (1) failing to dismiss the charges against him for insufficiency of the evidence, and (2) allowing the State to introduce testimony from the auntconcerning defendant's inappropriate touching of her 22 years earlier.
    In his first argument, defendant contends the trial court erred by not dismissing all charges against him. Specifically, defendant argues there was insufficient evidence to prove defendant's alleged rubbing of B.B.'s breasts and genitals was for the purpose of arousing or gratifying sexual desire. We disagree.
        The law governing a trial court's ruling on a motion to dismiss is well established. [T]he trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.

State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (internal quotation marks and citations omitted).
    N.C. Gen. Stat. § 14-202.1 (2005) provides in pertinent part:
    (a)    A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

        (1)    Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or        (2)    Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.

    Our Supreme Court, in State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990), construed G.S. § 14-202.1 as follows:
        The evil the legislature sought to prevent in this context was the defendant's performance of any immoral, improper, or indecent act in the presence of a child “for the purpose of arousing or gratifying sexual desire.” Defendant's purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.
Id. at 567, 391 S.E.2d at 180.
    In State v. Bruce, 90 N.C. App. 547, 551, 369 S.E.2d 95, 98 (1988), this Court held there was sufficient evidence that defendant rubbed the female child victim's chest for the purpose of gratifying his sexual desire where the evidence showed the defendant locked the back screen door before entering the bedroom with the victim, rubbed the victim under her blouse, and stopped rubbing her when the victim's brother attempted to enter the locked backdoor. In Bruce, we concluded that, “[f]rom this evidence, the jury could properly infer that defendant's action in rubbing the victim's breasts was for the purpose of arousing or gratifying his sexual desire.” Id. (citing State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987), and State v. Strickland, 77 N.C. App. 454, 335 S.E.2d 74 (1985)).
    Considering the evidence in the light most favorable to the State in the instant case, the evidence showed that defendant andB.B. were alone together when defendant rubbed her breasts and genitals. On two occasions, while B.B. and defendant were watching movies at defendant's house, defendant rubbed her breasts under her shirt. Once he rubbed her breasts for the entire length of the movie. On another occasion, B.B. and defendant slept together on the floor and B.B. awoke to find defendant “rubbing over [her] panties.” On one occasion, defendant rubbed B.B.'s chest under her halter top. B.B. testified that, while her brother and sister were sometimes at defendant's house when she was there, they were never in the same room with her when defendant was fondling her. Defendant told B.B. not to tell anyone what he was doing. According to B.B., defendant called her brother and sister “snitches” because “he would say that they would tell our little secret.”
    We conclude the evidence was sufficient to withstand defendant's motion to dismiss. This assignment of error is overruled.
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    In his second argument, defendant contends the trial court erred by allowing the State to introduce testimony from the aunt regarding defendant's having fondled her genitals approximately twenty-two years earlier. Defendant argues the events testified to by the aunt were too remote in time to be admissible under Rule 404(b) and, even if admissible, should have been excluded under Rule 403 as overly prejudicial.    Generally, “[a]ll relevant evidence is admissible[.]” N.C. Gen. Stat. § 8C, Rule 402 (2005). N.C. Gen. Stat. § 8C, Rule 401 (2005) defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “Although 'the trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.'” Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991)).
    N.C. Gen. Stat. § 8C, Rule 404(b) (2005) 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. . . .
    It is axiomatic that:
        “'Rule 404(b) is one of inclusion of relevant evidence of other crimes . . . 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. Faircloth, 99 N.C. App. 685, 689, 394 S.E.2d 198, 201 (1990) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). “[S]uch evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.” State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d629, 635, appeal dismissed and disc. review denied, 353 N.C. [269], 546 S.E.2d 114 (2000).

State v. Patterson, 149 N.C. App. 354, 362, 561 S.E.2d 321, 326 (2002).
        When the evidence is offered for a proper purpose, the ultimate test of admissibility is whether the incidents are sufficiently similar to those in the case at bar and not so remote in time as to be more prejudicial than probative under the Rule 403 test. The similarities between the acts do not have to be unique or bizarre; rather, they must tend to support a reasonable inference that the same person committed both acts. Remoteness in time generally affects the weight to be given to the evidence, but not its admissibility. Further, remoteness in time is less important when the prior act is used to show intent, motive, knowledge, or lack of mistake.

State v. Love, 152 N.C. App. 608, 612, 568 S.E.2d 320, 323 (2002) (citations omitted). We note that “[our Supreme] Court has been liberal in allowing evidence of similar offenses in trials on sexual crime charges.” State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 300 (1996) (citation omitted). In Frazier, our Supreme Court held that testimony by the prosecuting witness's two sisters that the defendant had sexually abused them “continuously over a period of approximately twenty-six years and in a strikingly similar pattern” was admissible. Id. at 616, 476 S.E.2d at 300. In State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989), our Supreme Court held that testimony of the prosecuting witness, and her sisters, of acts of sexual abuse by defendant spanning a twenty-year period, was admissible and not overly prejudicial. Id. at 447, 379 S.E.2d at 848. In Love, 152 N.C. App. at 613, 568S.E.2d at 324, this Court determined that the testimony of the mother of a female child victim regarding similar sexual acts of abuse by the defendant almost twenty years earlier were not too remote in time and were admissible to show “proof of identity, a common scheme or plan or modus operandi, and intent.”
    Here, the trial court held an extensive voir dire hearing regarding the admissibility of the aunt's testimony. The aunt testified that, beginning when she was five years old, defendant would take her out onto the couch at night while others in the house were sleeping and rubbed her chest and vagina with his hands under her clothing. Defendant would occasionally bring her into his bed at night. Defendant continued to rub her in this manner approximately once a month until she was fourteen or fifteen years old. When she was approximately thirteen years old, defendant began masturbating while he was rubbing the aunt's breasts and genitals. When she was fourteen or fifteen years old, defendant forced her to have sexual intercourse. Defendant told the aunt not to tell anyone about what he was doing to her.
    Following the voir dire, the trial court excluded any testimony by the aunt that defendant raped her or masturbated while fondling her, but admitted the balance of her testimony. The court admitted the aunt's testimony for the limited purposes of proving defendant's “intent, motive, knowledge or lack of accident.” In addition the court excluded any testimony regarding defendant's 1988 conviction for molesting the aunt.    Our resolution of this Rule 404(b) issue is guided by our holding in Love. In Love, this Court held that a gap of twenty years between acts of sexual abuse by a defendant perpetrated on different victims, where the pattern of abuse was similar, did not make the prior acts of sexual abuse too remote to be admissible at trial. Moreover, there are similarities between the events described by the aunt, deemed admissible by the trial court, and those testified to by B.B. in this case. Defendant rubbed the chest and genital area of both B.B. and her aunt when they were each eleven years old. Defendant reached up under the clothing of both the aunt and B.B. to rub their chests with his hands. Defendant brought the aunt into his bed at night to fondle her; defendant had lain down to sleep with B.B. on the floor for the night when B.B. woke up to find him rubbing her genitals through her underpants. Defendant told the aunt not to disclose what he was doing; he also told B.B. not to tell anyone what he was doing and he told B.B. that her brother and sister might “tell our little secret.” Given the similarities between defendant's actions with the aunt and those with B.B., the twenty-two year gap between defendant's acts of sexual abuse with the aunt and B.B. does not necessarily make defendant's acts with the aunt too remote to be admissible. Applying deferential review to the trial court's decision to admit testimony as we must, Dunn, supra, we conclude the trial court did not err in admitting the aunt's testimony pursuant to Rule 404(b).    We next consider whether the trial court erred by failing to exclude the aunt's testimony pursuant to Rule 403.
    N.C. Gen. Stat. § 8C, Rule 403 (2005) provides:
        Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
    The decision to exclude or not exclude relevant but prejudicial evidence is a matter within the sound discretion of the trial court and will be reversed only upon a showing that the trial court abused its discretion. State v. Baldwin, 330 N.C. 446, 456, 412 S.E.2d 31, 37 (1992). We conclude the trial court did not abuse its discretion in failing to exclude the aunt's testimony pursuant to Rule 403. See Love, 152 N.C. App. at 615, 568 S.E.2d at 325. This assignment of error is overruled.
    Defendant's remaining assignments of error are without merit.
    No error.
    Judges HUDSON and JACKSON concur.
    Report per Rule 30(e).

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