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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-760

NORTH CAROLINA COURT OF APPEALS

Filed: 17 April 2007

STATE OF NORTH CAROLINA

     v .                      Union County
                             Nos. 04 CRS 50819-20,
JOSEPH BRIAN TARLETON             50822-26, 50834-36

    Appeal by defendant from judgments entered 8 February 2006 by Judge Susan Taylor in Union County Superior Court. Heard in the Court of Appeals 7 March 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant appellant.

    McCULLOUGH, Judge.

    Joseph Tarleton (“defendant”) appeals from judgments entered consistent with the jury's verdict finding him guilty of 9 counts of taking or attempting to take indecent liberties with a child and 1 count of disseminating obscenity to a minor under the age of 13 years. After a thorough review of the record, transcripts and defendant's arguments on appeal, we hold that defendant received a trial free from prejudicial error and therefore we affirm the judgments entered against him.
    Defendant was indicted on 29 November 2004 of 6 counts of taking or attempting to take indecent liberties with a minor, E.M. and 1 count of disseminating obscenity to a minor under the age of13 years. Defendant was thereafter indicted on 26 April 2004 of 3 counts of taking indecent liberties with a minor, J.T.(1).
    The State presented evidence at defendant's trial tending to show the following: Defendant was the uncle of the minor children, E.M. and J.T.(1), who alleged that sexual incidents occurred between them and defendant for several years. Defendant lived in a camper and his shop on his mother's and the minors' grandmother's property. E.M. and J.T.(1) regularly visited their grandmother.
            E.M. testified that, when she was 10 years old, defendant showed her and her cousin, J.T.(1), Playboy magazine, computer images of naked children and adults, and computer images of men having sex with children. Defendant told the girls that he wanted to engage in the actions portrayed with them. On another occasion, at E.M.'s grandmother's house, defendant asked E.M. and her cousin to perform fellatio on him. Defendant subsequently showed E.M. and her cousins computer images of naked men and women engaged in intercourse and naked men having sex with children when the children visited defendant in his shop. After viewing the pictures, defendant told E.M., “I can't wait until me and you do that.” When E.M. was 11 years old, defendant attempted to take her shirt off and told E.M. that her cousin Sarah allowed him to do that. E.M. testified that when she was 12 years old defendant exposed himself twice and asked her to perform fellatio, once when she and defendant were on a four-wheeler ride and once in defendant's shop. Defendant further showed E.M. a nude photograph of a little girl whom he identified as E.M.'s cousin J.N. and told E.M. that he andJ.N. had previously engaged in intercourse and that now he and E.M. could as well. E.M. did not report these incidents to anyone because defendant threatened to hurt her and her grandmother if she told anyone.
    J.T.(1) testified that she first remembered being touched by defendant when she was 5 years old. Defendant rubbed her inner thighs, tried to kiss her and explained to her that this is how adults kiss. Defendant subsequently fondled J.T.(1)'s breast and vagina and showed her how to perform fellatio which she did. Defendant asked J.T.(1) to perform fellatio on him at least 10 times between 1991 and 2004. When J.T.(1) visited defendant in his camper, defendant showed her computer images of children and adults engaging in intercourse and suggested that they act this out. Defendant also took J.T.(1) out on the four-wheeler and fondled her. J.T.(1) testified that defendant would try to persuade the girls to engage in sexual activity with them by telling J.T.(1) that he had done those sexual things with E.M. and telling E.M. that he had done those things with J.T.(1). J.T.(1) did not tell anyone because defendant threatened to hurt her grandmother or someone in their family if she did.
    At trial, both E.M. and J.T.(1) identified magazines recovered from defendant's shop at the time of arrest as the magazines shown to them by defendant and identified defendant as the perpetrator of the incidents described by them. The jury found defendant guilty on 9 counts of taking or attempting to take indecent liberties with a child and 1 count of disseminating obscenity to a minor under theage of 13 years. Defendant was sentenced to 21 to 26 months' imprisonment for each of the 9 indecent liberties convictions and 6 to 8 months' imprisonment for the conviction of disseminating an obscenity to a minor which was suspended and a 5-year period of supervised probation imposed to commence at the expiration of the active sentences. Defendant appeals.
    Defendant asserts that the trial court improperly admitted evidence of alleged sexual acts against persons other than the victims under N.C. Gen. Stat. § 8C-1, Rule 404(b).
    N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) sets forth the proposition that “[e]vidence of other crimes, wrongs, or acts” is not admissible as character evidence for the purpose of showing a propensity to act in such a manner. Id. However, evidence of other crimes, wrongs or acts may be admissible for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Id. The North Carolina Supreme Court has stated, “as a careful reading of Rule 404(b) clearly shows, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.” State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). Further, Rule 404(b) is to be treated as a rule of inclusion rather than exclusion as long as the probative value goes to something other than showing 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), cert. denied, 421S.E.2d 360 (1992). Moreover, our Courts have been “'markedly liberal' in holding evidence of prior sex offenses 'admissible for one or more of the purposes listed [in the Rule] . . . , especially when the sex impulse manifested is of an unusual or “unnatural” character.'” Id. at 279, 389 S.E.2d at 54-55 (citation omitted).
     In the instant case, the trial court admitted the testimony of the victims' cousins, J.N. and J.T.(2), regarding incidents of sexual misconduct between defendant and the two minor children under Rule 404(b). J.T.(2) testified that defendant, his uncle, first made him put his mouth on defendant's penis when he was 6 or 7 years old. He further testified that defendant later performed fellatio on J.T.(2) and forced him to masturbate defendant. Defendant also showed J.T.(2) nude photographs of women and young girls in magazines and on the internet. J.T.(2) testified that these incidents occurred when he would visit his aunt's house where defendant was at that time living in a camper on her property. Defendant told J.T.(2) not to tell anyone about the incidents or else he would get in trouble.
    J.N., J.T.(2)'s sister, testified that defendant, her uncle, fondled her in her vaginal area, showed her magazine photographs of naked women and forced her to engage in reciprocal fellatio when she was between the ages of 6 and 8 years old. J.N. testified that many of these acts occurred when she was at her grandmother's house visiting while her grandmother was asleep. J.N. further testified that additional sexual acts occurred between her and defendant in a house that he owned in Albemarle. J.N. stated that defendantthreatened that if she ever told anyone about these incidents, he would go to jail and she would never see him again. She further testified that she was afraid of defendant.
    A review of the testimony of the four children reveals that defendant engaged in inappropriate sexual activities with his nieces and nephews when all were very close to the same age. A majority of the encounters occurred at the grandmother's house when the children were visiting their grandmother or in defendant's camper. Defendant showed all of the minor children nude photographs in magazines or on the internet and either engaged or attempted to engage in fellatio. Defendant further threatened all of the children with harm to them or their family members if they revealed the incidents that occurred between them and defendant. The evidence offered by J.T.(2) and J.N.'s testimony tends to prove defendant's opportunity and common scheme or plan to engage in sexual activities with the minor children and was not offered for the purpose of proving propensity to act in conformance therewith. Therefore, this assignment of error is overruled.
    Defendant next excepts to the trial court's admission of evidence that defendant burned down a house where such evidence was admitted in error and was further plain error.
    During the testimony of J.N. the following exchange occurred:
        Q    Does the house in Albemarle still exist?

        A     No, it does not.

        Q    Do you know what happened to it?

        A    It was burnt.
    On direct examination defendant testified that the house in Albemarle burned down as a result of a chimney fire. On cross- examination the State asked defendant whether he told J.N. that he burned the house down for insurance money, and defendant answered over objection that it was a rumor started by the father of J.N.
    Even assuming arguendo, that it was error for the trial court to admit evidence regarding defendant's alleged burning of a house in Albemarle for insurance money, the inclusion of the evidence could not have affected the case where there was overwhelming evidence of defendant's guilt. The two victims, defendant's nieces, testified to inappropriate sexual encounters between them and defendant, including encounters involving both girls, they identified several magazines recovered from defendant's home as those shown to them by defendant and identified defendant as the perpetrator of the crime. Thus, any possible error would have been harmless.
    Finally, defendant asserts that the trial court's denial of defendant's motion for a bill of particulars as to the counts involving E.M. was an abuse of discretion.
    “The grant or denial of a bill of particulars is generally within the discretion of the trial court and is not subject to review 'except for palpable and gross abuse thereof.'” State v. Easterling, 300 N.C. 594, 601, 268 S.E.2d 800, 805 (1980) (citation omitted). “An appellate court should reverse the denial of a motion for a bill of particulars only if it clearly appears that the 'lack of timely access to the requested information significantlyimpaired defendant's preparation and conduct of his case.'” State v. Hines, 122 N.C. App. 545, 551, 471 S.E.2d 109, 113 (1996) (citation omitted). The record is devoid of any indication that the trial court's denial of a bill of particulars in regard to the incidents involving E.M. significantly impaired defendant's preparation of his defense. The State stated at the hearing on the motion that defendant was currently in possession of all witnesses' statements and that he would continue to hand over all information as it became available. Further, during the cross-examination of E.M., defendant possessed the prosecutor's notes of E.M.'s witness interview and used those notes in the cross-examination of the victim. Defendant has failed to point to any prejudice incurred by him as a result of the denial of the motion for a bill of particulars and therefore we find no abuse of discretion.
    Accordingly, defendant received a trial free from prejudicial error.    
    No prejudicial error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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