An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1235

NORTH CAROLINA COURT OF APPEALS

Filed: 2 January 2007


STATE OF NORTH CAROLINA

    v.                            Bladen County
                                No.     02 CRS 53144
GERALD CARTER                            02 CRS 53154

    Appeal by Defendant from judgments entered 9 February 2005 by Judge Gary L. Locklear in Bladen County Superior Court. Heard in the Court of Appeals 16 May 2006.
    Attorney General Roy Cooper, by Assistant Attorney General Caroline Farmer, for the State.

    McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for Defendant-Appellant.

    STEPHENS, Judge.
    On 27 October 2003, a grand jury indicted Defendant, Gerald Carter, on charges of crime against nature, statutory rape, statutory sex offense, taking indecent liberties with a child, and felony incest, naming his biological daughter, T.M., as the victim on each charge. Trial began on 1 February 2005 and concluded on 9 February 2005, with one verdict of guilty of taking indecent liberties with a child. Defendant was acquitted on the remaining charges. From judgment on the verdict entered by Judge Locklear on 9 February 2005 imposing an active prison sentence within the presumptive sentencing range of sixteen to twenty months, Defendant appeals. We find no error in the trial of this case.      At trial, the State's evidence tended to show the following: T.M., who was born on 15 August 1986 in Washington State, testified that she did not meet Defendant until February 1999 in Tacoma, Washington at a restaurant. The meeting was arranged by her mother, with whom T.M., who was twelve years old at the time, lived. Defendant, a career Army officer, was on temporary duty at the nearby Port Louis Army Base, and T.M. saw him frequently during the next few days. She said she enjoyed spending time with Defendant, who took her and her sister and cousins shopping and to restaurants.
    In December 1999, Defendant paid for T.M. to fly to North Carolina to meet members of his family. After her visit, T.M. returned to Washington and did not see Defendant again until July 2000, when she flew to join him in California . After a few days, Defendant drove T.M. to North Carolina from California. During the trip, Defendant informed T.M. that she would be living with him in North Carolina. Defendant then gave T.M. the rules for living under his parental control, which included that she would not be able to wear earrings or other jewelry, fake hair, nail polish, makeup or form-fitting pants. When they reached Tennessee, Defendant spanked T.M. in a hotel room because he believed that she had lied to him and because he considered her earrings and jewelry inappropriate. When she was spanked, she had to remove her pantsbut was allowed to keep on her underwear. On another occasion, Defendant spanked T.M. on her behind and thighs with a luggage strap because he could not find his belt.
    From July 2000 to July 2002, T.M. lived in Clarkton, North Carolina, with her bedridden grandmother and her Aunt Jean, Defendant's sister, who worked as a flight attendant and was thus away from home several days at a time each month. All had separate bedrooms. T.M. had a strict schedule. On weekdays, she had to study and complete homework for two hours after school. She was not allowed telephone calls after 8:00 p.m. On Saturdays, T.M. made breakfast before her grandmother's caretaker arrived and also completed her chores. She was only able to visit other family members and only if she was in the company of Aunt Jean. T.M. testified that she had no problems with her study hours or chores because she felt that they were her responsibility.
    Defendant did not move to North Carolina until one year after T.M. moved . When he returned, he did not live with T.M., but lived with his sister, Erica, in Hope Mills.
    In October 2001, T.M. got into an altercation with a girl on her school bus. The fight escalated into T.M.'s front yard, and she received scratches on her face. In an effort to avoid getting in trouble, T.M. initially told Defendant that she was scratched by someone's watch while playing football. The next day, T.M. toldAunt Jean and reluctantly told Defendant about the fight. Defendant assured T.M. everything was all right and he was “there for [her].” T.M. believed that the incident was over until the following day, when Defendant and Aunt Jean asked her why she had been outside fighting and told her she could have been hurt. Later that evening, Defendant took T.M. outside, had her remove her pants and underwear, and spanked her with a belt while she leaned against a shed. Immediately after the spanking, Defendant told T.M. that she should always tell him the truth. He then hugged her from the front while she was naked from the waist down. T.M. was fifteen years old.
    T.M. testified further that on 18 October 2001, after they got home from a church activity, Defendant told her he would give her a massage and she should take a shower. She expected him to massage her feet, hands, shoulders, and back because she had practiced with JROTC that morning, and her feet and legs were hurting. When she got out of the shower, Defendant told her not to come out yet because he was doing something special in her room. Upon entering her bedroom at approximately 9:00 p.m., T.M. observed lit candles, and two pairs of satin panties, one black and one red, on a towel on her bed. The panties did not resemble any of her usual cotton panties. From outside T.M.'s room, Defendant told her to choose a pair of panties and lie on the bed with her towelwrapped around her. He then came in the room and put a blindfold on her.
    Using a spray massage oil, Defendant began to massage T.M.'s calves and feet. He then massaged the back of her body. When T.M. turned over, Defendant massaged the front of her body. During the massage, T.M. kept the towel wrapped around her. Defendant then started to massage her feet again and began sucking her toes and kissing her inner thighs. He removed the towel and kissed T.M.'s genital area through the material of her panties. He then put his fingers inside her vagina. After removing her panties, Defendant placed his penis inside T.M.'s vagina and began having sexual intercourse with her. T.M. remained quiet and “just laid there.”
    When Defendant tried to change positions, T.M. jumped up, ran to the bathroom, and locked the door behind her. Through the door, Defendant told T.M. to use a cold towel to ease the pain. T.M. “screamed” at Defendant to leave her alone. Eventually, T.M. returned to her room. Defendant came back in her room and repeatedly apologized. He told T.M. that “[her] body was ready but [her] mind wasn't.” He then gathered up the items he had brought to her room and left.
    The next morning, Defendant told T.M. that what happened was not their fault; they were both just “tempted.” He later picked T.M. up from school, and on the way home, informed her that hecould not make her pregnant because of a previous vasectomy and because he did not ejaculate. Defendant also told T.M. that they were both at fault.
    Within a week, T.M. told her friend, Priscilla, about the incident. She also told her grandfather, who spoke privately with Defendant. After T.M. told her grandfather, he stayed late at the house on evenings when Aunt Jean was working.
    T.M. testified that her mother was fifteen when she delivered her and that her father was approximately seven years older than her mother. T.M. visited her mother in December 2001, but did not tell her about the incident. T.M. explained that she did not feel comfortable during the visit because her mother had remarried and seemed to have a new family.
    In June 2002, T.M. ran away from home after arguing with Defendant. She called her mother and told her she could not stay in North Carolina any longer. She also told her mother in detail about the incident with Defendant. T.M. stayed with other family members until she was able to return to Washington. While staying with her Aunt Tracy, T.M. told her about the incident, and Aunt Tracy called the Sheriff's Department. T.M. gave a statement to a deputy sheriff and a social worker before leaving for her mother's home.
    Defendant's niece, A.F., testified that when she wasapproximately twelve or thirteen years old, she spent the night at Defendant's father's home. One night, while everyone else was asleep, Defendant took A.F. from where she was sleeping on the living room couch to the den and began to ask her questions about whether she had “been with” boys yet. Defendant began to touch A.F. and told her that “this was what big girls do.” Defendant performed oral sex on A.F., then inserted his penis into her vagina and told her that she could not get pregnant because he had undergone a vasectomy. After the act, Defendant told A.F. that the incident was just as much her fault as his, and to keep it a secret. A.F. later looked “vasectomy” up in the dictionary because at the time of the alleged rape, she did not know what that term meant.
    A.F. testified that she never told anyone what had happened because she was scared, believed it was her fault, and did not think anyone would believe her. Several years later, A.F. told her mother that Defendant had raped her and she was subsequently interviewed by Sheila Quick , an SBI agent. T.M. and A.F. did not know each other and did not meet until the trial.
    Defendant's wife, Bernadette Carter, testified that she met Defendant when she was fifteen and he was approximately twenty-six. She married Defendant in October 1990 when she was sixteen because she was pregnant. She testified that Defendant had a vasectomyafter their last child was born in May 1995.
    Joey Todd, a child abuse investigator for the Bladen County Department of Social Services (“DSS”), testified that he received a report from the Sheriff's Department on 1 June 2002 indicating that T.M. had reported being sexually abused by her father. On 8 July 2002, Mr. Todd interviewed T.M. During the interview, T.M. described the alleged rape in substantially the same terms as her trial testimony.
    Mr. Todd interviewed Defendant on 25 July 2002 at Defendant's home. Defendant denied T.M.'s allegations and stated that he had never molested or raped any children. He further reported that T.M. “was always lying on him and . . . lying on everybody else.” He told Mr. Todd that in June, after an argument, T.M. left the house. Defendant assumed T.M. was going to his father's house because she was afraid of the dark and it was after 10:00 p.m., but he was unable to find her that night. Defendant never called the police to report that T.M. was missing, even though he still had not found her by 4:00 a.m. Defendant told Mr. Todd that he met T.M.'s mother when she was fourteen or fifteen and he was twenty- three. During the interview, Defendant asked if law enforcement would be involved.
    SBI Agent Sheila Quick testified that the Bladen County Sheriff's Department requested her assistance in theirinvestigation of Defendant. Agent Quick interviewed Defendant on 22 October 2002. Defendant told her about his relationship with T.M. and how she came to live in North Carolina. Defendant admitted that he gave T.M. a massage in October 2001, but said the door to her bedroom was open and his father was also in the house watching television. Defendant denied doing anything inappropriate to T.M. He was arrested on 27 November 2002.
     Defendant presented evidence tending to show that he has a truthful character. He denied spanking or hugging T.M. when she was naked from the waist down. He further testified that on 18 October 2001, he massaged only T.M.'s feet and legs with Icy Hot. He stated that T.M. never removed her towel and he never “ha[d] sex” with her. After the massage, Defendant washed his hands and went to sit in the den with his father, John Carter, who asked Defendant what he “was doing in the back, back there.” Defendant told him he had massaged T.M.'s feet and legs. Mr. Carter told Defendant “'Now you shouldn't do that, Son. Watch yourself.'” Defendant testified that he did not see T.M. again until the next morning.
    The next day, Defendant received a call from T.M.'s school that she had skipped school that morning with her friend, Roderick. Defendant came to the school to pick T.M. up and repeatedly asked her whether she had had sex with Roderick, which T.M. denied. Thenext morning, Defendant gave T.M. information “about the percentage of 16 year olds and . . . virginity and sex.” Defendant testified that T.M. stated, “'I haven't been a virgin for a while, Dad'” and “stomped” out of the house. He said T.M. went to John Carter's house, and shortly thereafter, John Carter spoke with Defendant in the yard, stating that T.M. had just told him that Defendant had “had sex” with T.M. Defendant denied the allegation to his father. Defendant also testified that he never had “sexual relations” with A.F.
    John Carter testified that he was at Aunt Jean's house the night of the alleged rape and told Defendant the next time he gave T.M. a massage it should be in the den, “out in the open[.]” He recalled T.M. telling him that Defendant had sexually assaulted her. He admitted that he did not do anything about it at the time but later talked to Defendant about it. Mr. Carter testified that he did not believe T.M.'s allegations because when she tried to confide in him, she said “we had sex” and would not elaborate on what type of “sex” she had with Defendant. After T.M. ran away from Aunt Jean's home in 2002, Mr. Carter helped look for her for a while, but did not call the police because in his view, at age fifteen, she “was a grown girl.”
    Mary Williams, also known as “Aunt Jean,” testified that Defendant is her brother. She was the primary caretaker of T.M.for the first year that T.M. lived in North Carolina. Ms. Williams stated that T.M. would take items such as jewelry and pictures from Aunt Jean's home. She testified that before Defendant moved back to North Carolina, T.M. told her that she had had sex before and that it was “no big deal.” Ms. Williams recalled the night that T.M. ran away from home. She did not call the police even after T.M. had been missing for several hours.
    Defendant's motions to dismiss the charges against him at the close of the State's evidence and all the evidence were denied. Upon the jury's conviction of Defendant of taking indecent liberties with a child, the trial judge imposed an active sentence of sixteen to twenty months in prison. On appeal to this Court, Defendant brings forward four assignments of error.

I.
    By his first assignment of error, Defendant argues that the trial court erred in admitting evidence of a prior incident of Defendant's alleged sexual abuse of his niece, A.F. Specifically, he contends that such evidence should not have been admitted (1) because of the amount of time that elapsed between that incident of abuse and the alleged incident with his daughter, rendering the evidence too remote; (2) because of the dissimilarities between the two alleged events; and (3) because the trial court concluded the evidence was admissible to show Defendant's “unnatural lust towardsfemale relatives, as well as his state of mind,” grounds which Defendant argues are not permissible under Rule 404(b).
     The admission of evidence under Rule 404(b) rests with the discretion of the trial judge and will be overturned only upon a showing of an abuse of discretion. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). Under Rule 404(b),
[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). Our courts consider similarity and temporal proximity for challenges to evidence admitted under Rule 404(b). Consequently, when even similar incidents are distanced by significant stretches of time, the probative value of the evidence lessens. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), rev'd on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990); State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988).
    In Jones, our Supreme Court determined that a seven-year lapse between past acts of sexual misconduct by the defendant and the acts at issue rendered the evidence concerning the prior actsinadmissible to show a common plan or scheme, concluding that, under the circumstances in that case, the possibility of an ongoing plan to commit sexual misconduct was substantially negated by the passage of time. Jones, 322 N.C. at 590, 369 S.E.2d at 824. However, in State v. Penland, 343 N.C. 634, 472 S.E.2d 734 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997), our Supreme Court determined that, had the assignment of error been properly preserved, a ten-year time period between assaults did not render the evidence too remote to be admitted under Rule 404(b). Additionally, in State v. Frazier, 344 N.C. 611, 476 S.E.2d 297 (1996), our Supreme Court held that evidence of acts twenty-six years apart was not too remote when the pattern established that the defendant had a common scheme or plan to abuse family members.
    This case is analogous to Penland and Frazier because the amount of time between the incidents of abuse at issue (approximately five years) can be explained by Defendant's distance from adolescent female relatives when he was stationed in California and other places with the military, which severely limited the access he had to his young female family members. See also State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001) (holding that time in jail was properly considered to explain a seven-year time lapse between shootings).
    Furthermore, the similarities between the acts in question areobvious: (1) both victims were of similar ages, (2) both victims testified that Defendant made similar statements to them to coerce them to keep quiet about the incidents, (3) Defendant was the adult in charge at the locations at the time of the incidents, (4) the offenses began with rubbing or massaging the victims, (5) both occurrences ended with oral sex and intercourse, (6) Defendant apologized to both girls, (7) Defendant told both girls that they were also at fault in causing the act to occur, and (8) Defendant assured both girls that they would not get pregnant because he had undergone a vasectomy.
    The trial judge found that the testimony of A.F. was admissible to show that Defendant
engaged in conduct which amounted to a common plan or scheme in that . . . the evidence tended to show that he took advantage of young girls for whom he was responsible at the time. . . . Further, this evidence is admissible to show the defendant's unnatural lust toward female relatives, as well as his state of mind . . . at the various times.

Defendant argues that state of mind is not one of the exceptions listed under Rule 404(b). Nonetheless, intent is one of the exceptions under Rule 404(b), and Defendant's state of mind is evidence of his intent. See State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988) (holding that under Rule 404(b), “evidence of prior sex acts may have some relevance to the question of [the]defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity”). Accordingly, we hold that the trial court did not abuse its discretion in admitting the challenged testimony.

II.
    Defendant next argues that a single massage cannot justify a conviction for taking indecent liberties with a minor. Specifically, he contends that the State failed to offer sufficient evidence to support the elements of this charge and that, consequently, the trial court should have dismissed the charge instead of sending it to the jury. We disagree.
     Upon a motion to dismiss, the trial court must determine whether there is substantial evidence, taken in the light most favorable to the State, of each essential element of the offense charged, or of a lesser offense included therein, and of the defendant being the perpetrator of the offense. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference arising from it. Powell, 299 N.C. at 99, 261 S.E.2d at 117. The trial court is concerned only with thesufficiency of the evidence. State v. Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005).
    Section 14-202.1 of our general statutes defines this crime and provides that a person is guilty of taking indecent liberties with a person under the age of sixteen if he either
(1) willfully takes or attempts to take any immoral, improper, or indecent liberties . . . 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[.]

N.C. Gen. Stat. § 14-202.1 (2001).
    “A broad variety of acts may be considered indecent and may be performed to provide sexual gratification to the actor.” State v. Baker, 333 N.C. 325, 329-30, 426 S.E.2d 73, 76 (1993). This Court has previously held that, based on the surrounding circumstances, a massage can qualify as an act of taking indecent liberties with a child. See State v. Creech, 128 N.C. App. 592, 495 S.E.2d 752, disc. review denied, 348 N.C. 285, 501 S.E.2d 921 (1998).
    The critical inquiry is whether the act in question was committed for the purpose of arousing or gratifying sexual desire or constitutes a lewd or lascivious act on the child's body. See N.C. Gen. Stat. § 14-202.1 . Indeed, an actual touching of a minor by the defendant is not required. Id.; State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574 (1981).    In Creech, this Court noted that “a defendant's purpose in committing the act in an indecent liberties case is seldom provable by direct evidence and must ordinarily be proven by inference.” Creech, 128 N.C. App. at 598, 495 S.E.2d at 756 (citations omitted). The Creech jury convicted the defendant of taking indecent liberties with minor males when the children gave him massages for money, and the defendant had the children wear only shorts while he wore only his underwear during the massages. Id. at 593-94, 495 S.E.2d at 755-56.
    In the case sub judice, as in Creech, there was evidence, taken in the light most favorable to the State, that Defendant did more than just massage T.M. A lthough T.M. complained of aching feet, Defendant, at a minimum, massaged her feet, calves, thighs, and the tops of her legs, while she was lying on her bed covered only by a towel. He played soft music, provided lingerie to T.M., and blindfolded her. Both T.M. and A.F. testified that the massage progressed to Defendant's touching and kissing of the girls' genital area and then to intercourse. Viewing this evidence in the light most favorable to the State, the trial judge properly concluded that Defendant's actions in massaging T.M. constituted a sufficient basis to submit the indecent liberties charge to the jury.
    Defendant further contends that since the jury acquitted himof statutory rape, statutory sex offense, crime against nature, and incest, the indecent liberties charge cannot “stand on its own.” Given the evidence of how the massage was performed as set out above, we hold that this assignment of error is without merit.

III.
    In his third assignment of error, Defendant contends that the trial court committed plain error by instructing the jury that it need only find that one of the two occurrences charged in the indecent liberties indictment happened in order to convict Defendant. Again, we disagree.
    Plain error is error that is “so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). To prevail under a plain error analysis, the defendant must show (1) there was error; and (2) without the error, the jury probably would have reached a different verdict. Id. Defendant contends that the trial court committed plain error in instructing the jury in the “disjunctive” on the indecent liberties charge when the indictment was drawn in the “conjunctive.”
    The indictment stated the following:
THE JURORS for the State upon their oath present that on or about October 18, 2001, and in the county named above the defendant named above unlawfully, willfully, and feloniously did take and attempt to take immoral,improper, and indecent liberties with [T.M.] who was under the age of 16 years at the time, for the purpose of arousing and gratifying sexual desire and did commit a lewd and lascivious act upon the body of that child named above. At the time, the defendant was over 16 years of age and at least five years older than that child, against the form of the statute in such case made and provided and against the peace and dignity of the State.

(Emphasis added). The trial judge instructed the jury that it could convict Defendant of taking indecent liberties with T.M. if Defendant acted “for the purpose of arousing or gratifying sexual desire or committed a lewd and lascivious act upon a child.” (Emphasis added). Defendant challenges this instruction because it contradicts the State's charge against him, and according to Defendant's argument, lessens the State's burden of proof. In particular, he contends that some of the jurors may have convicted him pursuant to N.C. Gen. Stat. § 14-202.1(a)(1) (arousing or gratifying sexual desire), and some may have convicted him under section 14-202.1(a)(2) (committing a lewd and lascivious act upon a child ). Defendant relies on State v. Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991), to support his position.
    In Lyons, the defendant was charged and convicted, inter alia, of malicious assault in a secret manner with a deadly weapon with intent to kill, inflicting serious injury. He was indicted on charges of committing secret assault on two individuals. The trialcourt's instruction to the jury, however, permitted four possible guilty verdicts in charging that the jurors could find the defendant guilty if they determined that he committed the assault on one of the individuals “and/or” the other. Id. at 302, 412 S.E.2d at 311. Noting that “the gravamen of the offense of maliciously assaulting in a secret manner is the assaulting of a particular individual in that manner[,]” our Supreme Court held that the disjunctive instructions on the assault charge were fatally defective and violated the defendant's right to a unanimous jury verdict. Id. at 307-09, 412 S.E.2d at 314-16.
    As fully discussed and recognized by the Lyons Court, however, in State v. Hartness, 326 N.C. 561, 564-65, 391 S.E.2d 177, 179 (1990), our Supreme Court determined that the analysis applied in Lyons does not apply to the indecent liberties statute because
[t]he risk of a nonunanimous verdict does not arise in [indecent liberties] cases . . . because the statute proscribing indecent liberties does not list, as elements of the offense, discrete criminal activities in the disjunctive . . . [but instead] proscribes simply “any immoral, improper, or indecent liberties.” Even if we assume that some jurors found that one type of sexual conduct occurred and others found that another transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of “any immoral, improper, or indecent liberties.” Such a finding would be sufficient to establish the first element of the crime charged.
Here, Defendant was charged with a single wrong that could be established alternatively through either of its elements, as the trial judge correctly charged. Defendant has failed to demonstrate plain error in the trial court's instruction on the indecent liberties charge, and this assignment of error is thus overruled.

IV.
    Finally, Defendant argues that the trial court erred by taking into consideration unsworn statements made by the prosecutor at sentencing. Because Defendant was sentenced within the presumptive range, he has no appeal as of right on this issue. N.C. Gen. Stat. § 15A-1444(a1) (2005). Therefore, this assignment of error is dismissed. See State v. Jamerson, 161 N.C. App. 527, 588 S.E.2d 545 (2003); State v. Pimental, 153 N.C. App. 69, 568 S.E.2d 867, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
     We hold that Defendant received a fair trial free of error.
    NO ERROR.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).
     The judges concurred and submitted this opinion for filing prior to 31 December 2006.

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