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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1058


Filed: 3 July 2007


v .                         Johnston County
                            No. 05 CRS 55697-98

    Appeal by defendant from judgment entered 26 January 2006 and amended 29 March 2006 by Judge William C. Gore, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 27 March 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State.

    Glenn Gerding, attorney for defendant.

    ELMORE, Judge.

    The State charged William David Caufman (defendant) with one count of first-degree rape of a child, three counts of first-degree sexual offense, and three counts of indecent liberties with a child. At trial, defendant moved for dismissal at the close of the State's evidence and again at the close of all evidence. He offered no evidence in his defense. The jury found him guilty of one count of first-degree rape of a child, two counts of first- degree sexual offense, and two counts of indecent liberties with a child.   (See footnote 1)  The trial court entered judgment on 26 January 2006, andsentenced defendant to three consecutive sentences of 433 to 489 months each. After the Department of Corrections brought a miscalculation in sentencing to the trial judge's attention, the maximum sentence for each judgment was amended on 29 March 2006, from 489 months to 529 months. Defendant appeals his conviction and sentence.
    In his first argument, defendant contends that the trial court erred in admitting Dr. Vivian Everett's (Dr. Everett) testimony that the allegations made by M.L., the alleged victim, were consistent with Dr. Everett's physical examination of M.L. Generally, “to preserve a question for appellate review, a party must have presented to the trial court a timely . . . objection . . . stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R. App. P. 10(b)(1) (2005) (emphasis added). “Defendant made only general objections to the witness['s] testimony, and this Court has held 'a general objection, if overruled, is ordinarily not effective on appeal.'” State v. Parker, 140 N.C. App. 169, 183, 539 S.E.2d 656, 665 (2000) (quoting State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508 (1985) (citations omitted)). Here, where there was a general objection, the objection was overruled, and the testimony was presented without further discussion, this issue was not preserved for appeal. We find defendant's argument that “there was nopurpose for which Dr. Everett's opinion could be admitted” unpersuasive.
    Recognizing the likelihood that the issue was not preserved for appeal, defendant also alleges plain error. “In criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(c)(4) (2007). “Plain error is error 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Leyva, ___ N.C. App. ___, ___, 640 S.E.2d 394, 399 (2007) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)).
    Defendant attempts to analogize Dr. Everett's statement that it was her assessment “that the exam was consistent with the history that [M.L.] gave,” to cases in which an expert testified “that sexual abuse [had] in fact occurred.” State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (in which a pediatrician testified “that the victim was 'sexually assaulted and [that there was] also maltreatment, emotionally, physically, and sexually.'”) see also State v. Trent, 320 N.C. 610, 613, 359 S.E.2d 463, 465 (1987) (in which a physician stated that the diagnosis he arrived at “was that of sexual abuse.”) State v. Parker, 111 N.C. App. 359, 366, 432 S.E.2d 705, 709 (1993) (in which the physician testified, “'It was my opinion that she had been sexually abusedover a long period of time based on my exam.'”) State v. Ewell, 168 N.C. App. 98, 100, 606 S.E.2d 914, 916 (2005) (in which the witness stated that the alleged victim “'probably suffered sexual abuse'”).
    Whereas in the cited cases, the witnesses uniformly opined that the alleged victim had or probably had been subjected to sexual abuse, in the present case, Dr. Everett merely stated that her examination of M.L. was “consistent with” such abuse. Defendant's reliance on these cases is therefore misplaced. As this Court has recently stated, “while it is impermissible for an expert, in the absence of physical evidence, to testify that a child has been sexually abused, it is permissible for an expert to testify that a child exhibits characteristics consistent with abused children.” Id. at 103, 606 S.E.2d at 918 (quoting State v. Grover, 142 N.C. App. 411, 419, 543 S.E.2d 179, 184 (2001)) (internal quotations, citations, and alterations omitted). Dr. Everett's testimony falls within the range of permissible statements; defendant's contention is therefore without merit.
    Defendant next argues that the trial court erred in admitting the testimony of three separate witnesses, all of whom claimed that defendant previously abused them. Defendant acknowledges our Supreme Court's holding that “evidence of prior sex acts may have some relevance to the question of a defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity.” State v. Jones, 322 N.C. 585, 588, 369 S.E.2d 822, 823 (1988) (citations omitted). However,he argues both that the acts alleged by the three witnesses were too remote in time and dissimilar in nature to be properly admitted, and that the testimony should have been excluded as unduly prejudicial. The admissibility of prior bad acts is governed by Rule 404(b) of the North Carolina Rules of Evidence; undue prejudice is determined under Rule 403. N.C. Gen. Stat. § 8C-1, Rule 404(b), 403 (2005). “A trial court's rulings under Rule 403 are reviewed for an abuse of discretion, as are those under Rule 404(b).” State v. Theer, ___ N.C. App. ___, ___, 639 S.E.2d 655, 662 (2007) (citations omitted).
            Recent cases decided by this Court under Rule 404(b) state 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. Thus, even though 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 also is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. Additionally, our decisions, both before and after the adoption of Rule 404(b), 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. Such evidence is relevant and admissible under Rule 404(b) if the incidents are sufficiently similar and not too remote.

State v. Bullock, ___ N.C. App. ___, ___, 631 S.E.2d 868, 874 (2006) (quotations, citations, and alterations omitted).    In this case, each of the witnesses' testimony revealed that defendant was alone with young girls, that he touched them in a sexual manner, that he attempted to keep his inappropriate behavior a secret, and that he was motivated by sexual impulses. Defendant claims that the incidents were insufficiently similar; he notes that in two of the incidents described by the witnesses, he did not remove the girls' clothing, did not force the girls to touch him back, and did not carry on a course of abuse with the children. However, a situation need not be factually identical to justify its admission. Defendant is simply arguing as to the degree of his misconduct; the underlying behavior is more than sufficiently similar to warrant its admission.
    Defendant argues further that the third witness's testimony, that she observed him engaging in intercourse with an underage girl, was “inconsistent and unreliable.” However, as our Supreme Court has noted, “'It is the province of the jury . . . to assess and determine witness credibility.'” State v. Smith, 360 N.C. 341, 348 (2006) (quoting State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002)) (alteration in original).
    Defendant also argues that the alleged prior acts, which took place five, nine, and eight years before the trial, were too remote in time to justify their admission. Defendant is correct in his assertion that our Supreme Court has held that periods of seven years, nine years, and even seven months are too remote to be admissible. See State v. Jones, 322 N.C. 585, 589, 369 S.E.2d 822, 824 (1988) (holding that the passage of seven years between the endof the defendant's alleged previous misconduct and the conduct at issue in that case rendered evidence inadmissible); State v. Scott, 318 N.C. 237, 244, 347 S.E.2d 414, 418 (1986) (holding that the defendant's alleged sexual misconduct with his sister, which took place when the defendant was only thirteen, nine years prior to the crime at issue in that case, was not admissible); State v. Shane, 304 N.C. 643, 655-56, 285 S.E.2d 813, 820-21 (1982) (holding that the passage of seven months' time, combined with other differences in the alleged crimes, precluded the admissibility of the evidence).
    However, we are mindful of our Supreme Court's more recent declaration that “[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan.” State v. Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (quotations and citations omitted). The Frazier court specifically distinguished Jones, noting that in the years since that decision, it had allowed evidence of acts committed over a twenty-year period and after a passage of ten years. Id. at 615-16, 476 S.E.2d at 300. See also State v. Beckham, 145 N.C. App. 119, 122, 550 S.E.2d 231, 235 (2001) (holding, as to the admissibility of prior bad acts that allegedly took place fourteen and twelve years before the acts alleged in that case, that “the lapse of time between the defendant's sexual acts . . . goes to the weight of the evidence, not to its admissibility.”) The testimony in this case was not tooremote to be probative; the trial court properly acted within its discretion in allowing the testimony.
    Defendant next claims that the trial court erred in refusing to give the jury an instruction on attempted rape. “Instructions on a lesser-included offense are required only when there is conflicting evidence as to a crucial element of the offense charged, and the evidence supports the elements of the lesser-included offense.” State v. Cofield, 129 N.C. App. 268, 281, 498 S.E.2d 823, 832 (1998) (citation omitted). Because defendant is over the age of twelve and more than four years older than M.L., the pertinent elements of first-degree rape are (1) vaginal intercourse (2) with a child under thirteen years of age. N.C. Gen. Stat. § 14-27.2 (2005). Defendant does not contest his age or that of the victim. Rather, he asserts that M.L. was equivocal in her testimony that he penetrated her vaginally. Defendant's assertion is without merit.
    Defendant focuses on M.L.'s testimony that defendant “tried [to penetrate her] in [her] front, but he never did.” Defendant's attempt to characterize M.L.'s later clarification, that defendant penetrated her “[a] little bit,” as a response to a leading question is misleading. To the contrary, the prosecuting attorney presented M.L. with simple questions phrased in the disjunctive. M.L. then clarified that defendant was trying to touch her “inside,” that he touched her inside “a little bit,” and that he never actually went “all the way inside.” Far from creating a conflict in the evidence, M.L.'s ability to distinguish betweenpartial and full penetration only makes her testimony more persuasive.
    Defendant also argues that M.L. testified that defendant's penis was soft, that he never used any lubrication, and that M.L.'s legs were closed. All of this misses the point; any penetration at all is sufficient to eliminate the need for the trial court to instruct the jury on attempted rape. State v. Brown, 312 N.C. 237, 244-245, 321 S.E.2d 856, 861 (1984) (citation omitted) (holding that “evidence of the slightest penetration of the female sex organ by the male sex organ is sufficient [to prove] vaginal intercourse.”) M.L.'s testimony, particularly when combined with Dr. Everett's expert testimony that her examination of M.L. revealed an absence of hymen indicative of penetration, was not contradictory so as to require the trial court to give an instruction on attempted rape. Defendant's contention is therefore without merit.
    Defendant next claims that the prosecuting attorney, in her closing argument to the jury, misstated evidence, made personal statements, and personally vouched for M.L.'s credibility. Recognizing that defendant did not object to the State's closing arguments at trial, defendant argues that the trial court ought to have corrected the arguments ex mero motu.
        Because defendant did not object to the [S]tate's arguments to which he now assigns error, defendant must show that the alleged impropriety was so gross that the trial court abused its discretion in not correcting the arguments ex mero motu. Under this standard, only an extreme impropriety on the part of the prosecutor will compel this Court to hold thatthe trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.

State v. Wiley, 355 N.C. 592, 620, 565 S.E.2d 22, 42 (2002) (quotations and citations omitted). Even if we accepted defendant's claim that the State's closing argument was inappropriate, it certainly did not rise to the level of “an extreme impropriety.” This argument must therefore fail.
    Finally, defendant suggests that the trial court lacked jurisdiction and authority to change the maximum term of his sentence after the term of court ended. This contention is simply incorrect.
    “[A] court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein . . . .” State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quotations and citation omitted). While it is true that a court “cannot, under the guise of an amendment of its records, correct a judicial error,” id., defendant's characterization of the trial judge's correction of a mathematical error as “judicial” is altogether vacuous. Such a correction is clearly clerical in nature; the amendment was entirely proper.
    Defendant received a full and fair trial. Having conducted a thorough review of the briefs and the record on appeal, we find no error.
    No error.    Judges MCGEE and STEPHENS concurs.
    Report per Rule 30(e).

Footnote: 1
     We note that defendant was tried on these counts two times; the first trial judge declared a mistrial. However, defendant's previous trial is not pertinent to the currentappeal.

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