An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-702


Filed: 17 January 2006


         v.                                Burke County
                                        No. 03 CRS 5002

    Appeal by defendant from judgment entered 3 November 2004 by Judge Richard L. Doughton in Burke County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Judith Robb Bullock, for the State.

    David Childers for defendant appellant.

    McCULLOUGH, Judge.

    On 3 November 2004, a jury convicted defendant of one count of second-degree sexual offense. On the same date, Judge Richard L. Doughton signed a judgment sentencing defendant to imprisonment for 116 to 149 months. Defendant appeals.
    The State's evidence at trial tended to show the following: The victim, S.H., and M.B. are half-sisters. Defendant is the father of M.B. When S.H. was seventeen years old and living with her mother in Cleveland, Ohio, defendant drove from his home in Morganton, North Carolina, to Ohio to pick up S.H. and bring her back to North Carolina to visit with him for the weekend of 9-11 August 2002. Defendant, who was forty-two years old at that time, was going to give S.H. a car and help her obtain her driver'slicense.
    On 9 August 2002, Defendant left Ohio with S.H., M.B., his son, Marcellus, and a friend. After arriving in North Carolina on 10 August 2002, defendant dropped off his friend and proceeded to his own trailer. Once they arrived at defendant's trailer, he instructed M.B. and Marcellus to stay there while he took S.H. to obtain her driver's license.
    Rather than taking S.H. to obtain her driver's license, defendant drove S.H. to a Days Inn Motel in Morganton where he procured a room. S.H. felt something was wrong, and she asked defendant if she could use the telephone in the motel room to call her mother. Defendant responded that it was too expensive to use the motel room telephone. He then instructed S.H. to take a shower and S.H. again asked to use the telephone in the motel room. Defendant informed S.H. he would let her use the pay phone when they left the room and continued rushing her to take a shower. Thereafter, defendant left the room, and S.H. got into the shower.
    Defendant returned to the hotel room while S.H. was in the shower, came into the bathroom, pulled off his pants, and sat on the toilet. Defendant told her that he did not bring her to North Carolina to obtain her driver's license, but rather, to teach her a lesson because she had “corrupted his daughter's mind.” Defendant then informed S.H. that she had to choose to do one of the following: (1) take drugs; (2) drink liquor; (3) let three men outside the room have sex with her to determine if she was a virgin; or (4) allow him to “stick his penis in [her] to see if[she] was a virgin[.]” Thereafter, defendant opened the shower curtain, and S.H. chose to drink liquor. While S.H. was still standing in the shower, defendant gave her liquor which she described as being a burgundy/red color. After drinking the liquor, S.H. felt her stomach begin to hurt, she became dizzy, and her eyes began closing. Defendant then forced her to drink more liquor. When S.H. stepped out of the shower, defendant sat her on the bed, pushed her back, and began performing oral sex on her while she was vomiting. S.H. told defendant to stop what he was doing, but he told her to just lay back and he continued to perform oral sex on her as she continued to vomit. Defendant then rubbed some lotion in her vaginal area with his finger and S.H. passed out. S.H. testified the next thing she remembered was being in the back of defendant's trailer on a mattress with all of her clothes on.
    Defendant's daughter, M.B., testified that S.H. was not with defendant when he returned to the trailer on 10 August 2002 and she asked him where S.H. was. Defendant informed M.B. that S.H. was in the car and he then brought S.H. into the trailer, carrying her over his shoulder. When M.B. asked defendant what was wrong, he informed her that he had given S.H. a martini to drink. M.B. further testified that defendant informed her he had given S.H. beer to drink. The next day, defendant brought M.B. to work with him. On the way to work, defendant stopped at a hotel, picked up sheets and a blanket there, and disposed of them in a trash can at a store.
    Harry Shah, the manager of the Days Inn in Morganton in August2002, testified that his hotel logbook shows defendant checked into the hotel on 10 August 2002 and was assigned room 146. On 11 August 2002, Mr. Shah made an entry in the hotel's journal stating he had received a phone call from the housekeeping supervisor informing him the bedspread and blanket were missing from room 146.
    Over defendant's objection, the State sought to offer evidence of defendant's prior sexual offense through the testimony of C.B. After a voir dire hearing, the trial court ruled C.B.'s testimonial evidence was admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b) for the purposes of showing motive, intent, modus operandi, and a plan, scheme, system, or design. The trial court further determined the requirements of similarity and temporal remoteness were satisfied.
C.B. testified she met defendant at a store near her home in the summer of 1996 when she was fourteen years old. Defendant was thirty-five years old at that time. At defendant's request, C.B. gave defendant the telephone number of the Morales family home where she had a summer job as a babysitter. On 30 July 1996, C.B. went to the movies with defendant. When they returned to the Morales home, nobody answered the door. The two then returned to defendant's house where defendant gave C.B. a dark-colored soda to drink. After drinking less than half of the drink, C.B. became dizzy. Defendant then asked her to dance and he began unbuttoning her shirt. He led C.B. down the hallway, sat her on his bed, took off her clothes, and performed oral sex on her. They then had intercourse and he asked her to perform oral sex on him. The twohad anal sex and intercourse again. Thereafter, C.B. fell asleep. Defendant woke her up and she returned to the Morales home where C.B.'s mother and the sheriff's department were waiting for her. The trial court took judicial notice of the fact that defendant pled guilty to “three counts of indecent liberties” in connection with this incident, served an active sentence, and was released from prison in February 2002.
    On appeal, defendant argues the trial court erred in admitting C.B.'s testimony regarding the 30 July 1996 incident under N.C. Gen. Stat. § 8C-1, Rules 403 and 404(b) on the grounds the incident with C.B. was not sufficiently similar to the alleged incident with S.H. and the two incidents lacked the requisite temporal proximity. Defendant further argues the admission of C.B.'s testimony “created a risk of unfair prejudice to the defendant which outweighed the questionable probative value of [such] evidence.”
    Rule 404(b) provides in relevant part:
        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.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Our Supreme Court has held that Rule 404(b) is a rule of inclusion. State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001). Although evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it is also “relevant for some purpose other than to showthat defendant has the propensity for the type of conduct for which he is being tried.” State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986).
     The appellate courts in this State liberally admit evidence of similar sex offenses to show one of the purposes enumerated in Rule 404(b). State v. Thaggard, 168 N.C. App. 263, 270, 608 S.E.2d 774, 780 (2005). Here, the trial court concluded that evidence of defendant's prior sexual conduct with C.B. was admissible for the proper purposes of showing defendant's modus operandi, motive, intent, and plan. We agree.
    When evidence of a defendant's prior sex offense is offered for a proper purpose, “the ultimate test for determining whether such evidence is admissible [under Rule 404(b)] is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.” State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988); State v. Pruitt, 94 N.C. App. 261, 266, 380 S.E.2d 383, 385, disc. review denied, 325 N.C. 435, 384 S.E.2d 545 (1989). Accordingly, the test for admissibility of a defendant's prior acts under Rule 404(b) has two parts: (1) whether the incidents are sufficiently similar; and (2) whether the incidents satisfy the requirement of temporal proximity.
    Although defendant acknowledges the 1996 and 2002 incidents share some similarities, defendant contends they are not sufficiently similar for purposes of admissibility under Rule 404(b). The following similarities exist between the 1996 and 2002 incidents: (1) young females were involved; (2) defendant was more than twenty years older than each of the females; (3) defendant gave both young females a dark-colored drink to consume; (4) both young females became dizzy after consuming the drink leading to a state of unconsciousness; (5) defendant performed oral sex on both young females after they consumed the drinks; and (6) defendant performed such acts away from the victims' homes. Accordingly, we conclude the trial court properly determined the incidents were sufficiently similar for purposes of Rule 404(b). See, e.g., State v. Boyd, 321 N.C. 574, 578, 364 S.E.2d 118, 120 (1988) (concluding evidence of defendant's prior sexual offenses committed upon a young female relative admissible as showing “defendant's scheme or intent to take sexual advantage of young female relatives left in his custody while his wife was working”); State v. Patterson, 149 N.C. App. 354, 362-64, 561 S.E.2d 321, 326-27 (2002) (affirming the trial court's admission of evidence showing prior bad acts by defendant who met his victims at skating rinks, invited the victims to his home, provided them with drugs and alcohol, and took photographs of the victims in varying stages of undress for his sexual gratification).
    Defendant further contends the 30 July 1996 incident with C.B. lacked temporal proximity to the 10 August 2002 incident. Defendant, however, was incarcerated after the 1996 incident and was not released until February 2002. Where a defendant has been incarcerated, “it is proper to exclude time defendant spent in prison when determining whether prior acts are too remote.” Statev. Berry, 143 N.C. App. 187, 198, 546 S.E.2d 145, 154, disc. review denied, 353 N.C. 729, 551 S.E.2d 439 (2001). Thus, the period of time between the two incidents, exclusive of prison time, was approximately six months in this case. We conclude this six-month period of time is not too remote to be admissible in light of the similarities between the two incidents. See, e.g., Boyd, 321 N.C. at 578, 364 S.E.2d at 120 (1988) (concluding defendant's prior sexual acts occurring within twelve months of the crime charged were not too remote where the crime charged was sufficiently similar to the prior acts); State v. Blackwell, 133 N.C. App. 31, 36, 514 S.E.2d 116, 120 (concluding a six-year period of time, exclusive of defendant's prison time, between defendant's prior sexual acts and the incident at issue was not too remote in time), cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999).
    As acknowledged by defendant, the admission or exclusion of evidence under Rule 403 “is within the sound discretion of the trial court, and the trial court's ruling should not be overturned on appeal unless the ruling was 'manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.'” State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (citation omitted), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001). Here, the trial court heard the voir dire testimony of C.B. before determining its admissibility. Further, the trial court gave a limiting instruction to the jury both before C.B. testified and during the final jury instructions. As such, we find no error by the trial court in admitting C.B.'stestimony.
    Defendant's remaining assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6), because they are not addressed in his brief.
    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).     

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