STATE OF NORTH CAROLINA
v. Union County
No. 04 CRS 51839
FRANCISCO SALINAS
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Allen W. Boyer, for defendant-appellant.
CALABRIA, Judge.
Francisco Salinas (“defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of taking indecent
liberties with a child. We find no error.
At trial, the State presented the testimony of L.M.F. (“the
victim”) although currently age fourteen (14), was
only eleven (11)
years old at the time of this incident. The victim stated that on
7 December 2003, defendant, who is her uncle, came to her residence
to transport the family to the grocery store . While her
grandmother and other siblings went into other rooms to change
clothes, she remained alone in the living room with the defendant.
As defendant hugged the victim from behind, he moved his fingers
and hand between her legs in the vaginal area and squeezed herbreasts. He then asked whether she had a boyfriend. She asked him
to stop and attempted to push him away. Defendant relented when he
heard her grandmother returning. Defendant told the victim not to
tell anyone about the incident. Notwithstanding defendant's
warning, she told her grandmother, older sister, and a friend about
the incident. Her older sister told her parents of the incident.
Nobody in her family called the police about the incident.
On 23 February 2004, the victim wrote a letter, addressed to
God, in which she described the incident with defendant. She gave
the letter to a Ms. Lowery, the Monroe Middle School guidance
counselor, who subsequently brought the matter to the attention of
the school's police resource officer, William Kilgo, of the Monroe
Police Department. The victim told Officer Kilgo that a relative
touched her inappropriately and the things he did made her feel
uncomfortable. Officer Kilgo referred the matter to Scott
Williams, a Detective with the Monroe Police Department. The
victim informed Detective Williams that defendant came to her
residence and while other family members were changing their
clothes, defendant hugged her, grabbed her from behind, rubbed and
squeezed her breasts, and moved his fingers around her vaginal
area.
Cynthia Zambrano (“Zambrano”), the victim's adult sister,
testified the victim told her defendant fondled her and touched her
breasts. The victim's story made Zambrano angry because when she
was approximately nine years old, defendant “poked” at her genital
area and “asked [her] what that was.” Zambrano went into anotherroom to get away from defendant. She did not tell anybody about
the incident.
Defendant testified that he accidentally hit the victim
between her cheek and her chest. He denied being alone with the
victim. Further, he denied touching her breasts or vaginal area.
Also, defendant stated he never touched Zambrano inappropriately.
On 19 July 2005, the jury found defendant guilty of taking
indecent liberties with a child. Defendant was sentenced to a
minimum of 19 months to a maximum of 23 months in the North
Carolina Department of Correction. Defendant appeals.
Defendant first argues the trial court erred in admitting the
testimony of Zambrano. Defendant contends Zambrano's testimony was
not admissible under either Rule 404(b) or Rule 403. We disagree.
I. Rule 404(b) and Rule 403:
Rule 404(b) of the North Carolina Rules of Evidence provides:
[e]vidence 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) (2005). This rule has been
interpreted to be “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. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54(1990) (emphasis in original). Notwithstanding, the court may
exclude the evidence if it determines “its probative value is
substantially outweighed by the danger of unfair prejudice[.]”
N.C. Gen. Stat. § 8C-1, Rule 403 (2005). The decision whether or
not to exclude evidence on the grounds of unfair prejudice is
addressed to the sound discretion of the trial court. State v.
Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986). Thus, this
decision will not be disturbed by an appellate court unless it is
shown the decision is manifestly unsupported by reason. State v.
Parker, 315 N.C. 249, 258-59, 337 S.E.2d 497, 502-03 (1985).
For evidence of other crimes, wrongs or acts to be admitted it
“must be offered for a proper purpose, must be relevant, must have
probative value that is not substantially outweighed by the danger
of unfair prejudice to the defendant, and, if requested, must be
coupled with a limiting instruction.” State v. Haskins, 104 N.C.
App. 675, 679, 411 S.E.2d 376, 380 (1991)
. Our courts are
“markedly liberal in admitting evidence of similar sex offenses to
show one of the purposes enumerated in Rule 404(b).” State v.
Brothers, 151 N.C. App. 71, 76, 564 S.E.2d 603, 607 (2002). The
ultimate test is whether the incidents are sufficiently similar and
not so remote in time as to be more prejudicial than probative.
State v. Love, 152 N.C. App. 608, 612, 568 S.E.2d 320, 323 (2002).
“[R]emoteness in time is less significant when the prior conduct is
used to show intent, motive, knowledge, or lack of accident;
remoteness in time generally affects only the weight to be given
such evidence, not its admissibility.” State v. Stager, 329 N.C.278, 307, 406 S.E.2d 876, 893 (1991).
In the instant case, we conclude the two incidents, one
involving the victim in the case sub judice and one involving
Zambrano, are sufficiently similar and not too remote in time. In
each incident, defendant touched the vaginal areas of the victim
and her sister, Zambrano, when each was between the ages of nine
and eleven. Further, in each incident he asked the victim and
Zambrano inappropriate questions as he touched them. Thus, because
the defendant engaged in strikingly similar sexual actions with the
victim and Zambrano, pursuant to Brothers, supra, Zambrano's
testimony should be admitted unless the prejudicial effect overrode
the probative value. However, Zambrano's testimony is highly
probative because it reveals the strikingly similar manner by which
defendant engaged in sexual misconduct with the victim and her
sister. We discern no abuse of discretion in the trial court's
decision to admit Zambrano's testimony. This assignment of error
is overruled.
II. Motion to Dismiss:
Defendant next argues the trial court erred in denying his
motion to dismiss. Defendant contends the State presented
insufficient evidence to support the conviction of taking indecent
liberties with a child. We disagree.
A court properly denies a motion to dismiss if substantial
evidence is presented to establish every element of the charged
offense and to identify the defendant as the perpetrator. State v.
Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “Substantialevidence is that amount of relevant evidence necessary to persuade
a rational juror to accept a conclusion.” State v. Scott, 356 N.C.
591, 597, 573 S.E.2d 866, 869 (2002). In deciding the motion, the
court must examine the evidence in the light most favorable to the
State, giving it the benefit of every reasonable inference that may
be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984).
The offense of taking indecent liberties with children is
defined by statute.
(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.
N.C. Gen. Stat. § 14-202.1(a)(2005).
Our Supreme Court has stated
that “a variety of acts may be considered indecent and may be
performed to provide sexual gratification to the actor.” State v.
Etheridge, 319 N.C. 34, 49, 352 S.E.2d 673, 682 (1987). “A sexual
encounter encompasses a number of independent but related actions,
any and all of which may be undertaken for the purpose of arousal.”
Id.
The victim's uncorroborated testimony is sufficient to
withstand a motion to dismiss a taking indecent liberties with achild charge if the victim's testimony identifies the defendant as
the perpetrator and establishes the requisite elements of the
offense. State v. Craven, 312 N.C. 580, 590, 324 S.E.2d 599, 605
(1985).
Defendant contends the evidence is insufficient to show the
element of acting for the purpose of arousing and gratifying sexual
desire. Here, the victim testified defendant squeezed her breasts
and moved his hand and fingers along her vaginal area while asking
her whether she had a boyfriend. A jury could reasonably infer
that defendant acted for the purpose of arousing and gratifying
sexual desire. Thus, pursuant to Craven, supra, the State
presented sufficient evidence the defendant took indecent liberties
with the victim. This assignment of error is overruled.
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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