STATE OF NORTH CAROLINA Rowan County
No. 00 CRS 13545-47
00 CRS 13549
KENNETH DWIGHT POTEAT, II
On 13 November 2000, Kenneth Dwight Poteat, II, (Defendant) was indicted for two counts of first degree rape pursuant to N.C. Gen. Stat. § 14-27.2(a)(1), one count of statutory sex offense pursuant to N.C. Gen. Stat. § 14-27.7(a), one count of first degree sex offense pursuant to N.C. Gen. Stat. § 14-27.4(a)(1), and one count of statutory rape pursuant to N.C. Gen. Stat. § 14-27.7(a). On 5 August 2002, Defendant was tried on all charges before a jury. Upon motion by Defendant, the court dismissed one count of first degree rape. On 9 August 2002, Defendant was convicted of first degree rape, statutory rape, first degree sex offense and statutory sex offense. The trial court entered judgment on theforegoing convictions and sentenced Defendant to 335 to 411 months in the North Carolina Department of Correction. From this judgment, Defendant appeals.
The evidence tends to show that on at least four occasions, beginning when she was eleven years old, B.B. was sexually abused by the twenty-two-year-old Defendant, her stepfather. The first sexual episode occurred in November 1995, when B.B. stayed home from elementary school one day, because she was sick. B.B. lay on her mother's bed near the bathroom and Defendant started massaging her. She testified he held my arms back, my legs and . . . he started getting closer to my vagina[.] B.B. continued, I was about to fall asleep and I felt [his penis] between my legs and it woke me[.] B.B. got out of bed and went into the bathroom because she did not feel well. Defendant followed her and gave her medicine which made B.B. feel dizzy. Defendant suggested that he should give B.B. a bath, which he advised would aid her sweating and sickness. After the bath, B.B. went back to bed and pretended that she was asleep. She stated that Defendant then gave me oral sex and put my panties back on[.] . . . [Then,] I pretended like I woke up.
B.B. further testified that in late 1996, when she was twelve years old, Defendant came home early from work and . . . went to my bedroom . . . and started . . . grabbing me[,] . . . touching me[,] and rubbing me and [sic] he stuck his finger in me[.] She also stated that eventually [Defendant] had sex with me. B.B.'s mother walked in while defendant was having sex with her. WhenB.B.'s mother entered the room, Defendant immediately pulled his pants back on and walked out. B.B.'s mother asked her about the incident and B.B. gave her mother her diary, in which she had written about numerous incidents of Defendant's sexual abuse. Her mother became tremendously upset, and held a pistol at [Defendant's] head and . . . said, '[L]et's talk[.]'
In early 1997, approximately two months later, B.B. testified that Defendant took her into her bedroom, unclothed me . . . and [had] sex with me. She further stated I felt funny this time because . . . I actually had my eyes open but I tried not to look.
Defendant and B.B.'s mother separated in September 1997, but Defendant still visited B.B.'s home a few times after that. B.B. testified that in November 1997, Defendant came back into [her] room and he started touching me again[.] B.B. also testified that Defendant started rubbing up my legs and . . . chest[,] and Defendant [put] his finger in me[,] . . . moved me down to the floor[,] and . . . put his mouth on me again. Then, Defendant had sex with me.
At trial, another young lady testified that when she was five years old, Defendant gave her and her brother a bath, after which Defendant touched T.B.'s vagina. Defendant then unzipped his pants and showed T.B. his penis. Because of this incident, Defendant had previously been convicted of indecent liberties.
In his first argument, Defendant contends that the court erred
by admitting evidence of Defendant's prior conviction of indecent liberties. We disagree.
The courts of this State have been markedly liberal in admitting evidence of prior sexual misconduct of a defendant for the purposes cited in Rule 404(b). State v. Smith, 152 N.C. App. 514, 527, 568 S.E.2d 289, 297 (2002). The use of evidence permitted under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) is guided by two constraints: similarity and temporal proximity. State v. Brothers, 151 N.C. App. 71, 76, 564 S.E.2d 603, 606 (2002). When the features of the earlier act are similar to the offenses with which the defendant is currently charged and the stretch of time between the instances is not too remote, such evidence has probative value. Smith, 152 N.C. App. at 527, 568 S.E.2d at 297 (citation omitted). The similarity between the offenses need not rise to the level of the unique and bizarre, but must tend to support a reasonable inference that the same person committed both the earlier and the later acts. State v. Gary, 348 N.C. 510, 521, 501 S.E.2d 57, 65 (1998) (citation omitted).
We find this Court's opinion in Smith instructive here. In Smith, the defendant was charged with sexual misconduct with a twelve year old which consisted of rubbing her breast and digitally penetrating her vagina. Smith, 152 N.C. App. at 527, 568 S.E.2d at 297. The trial court admitted the testimony of another woman, who testified that, when she was fifteen years old, defendant had sexual intercourse and performed oral sex on her without her consent. Id. The trial court admitted the evidence under Rule404(b), for the purpose of showing an absence of mistake on the part of [the] defendant, [the] defendant's unnatural attraction to young girls, and a common plan or scheme to take advantage of young girls in situations where he had parental or adult responsibility over them. Id. at 519, 568 S.E.2d at 292. This Court concluded that the defendant's conduct with the two women was sufficiently similar and proximate in time to support its admission under Rule 404(b).
In the instant case, T.B. testified that in January 1994, when she was five years old, Defendant bathed her and her brother while T.B.'s mother slept downstairs. T.B. stated that after her bath, she put on a tee-shirt, but before she could put on underwear, Defendant pulled up her tee-shirt and touched her vagina, after which Defendant unzipped his pants and showed T.B. his penis. Here, the similarities between the two episodes are numerous: B.B. testified that (1) in November 1995, Defendant bathed her and performed oral sex on her while her mother was away at work; (2) in late 1996, Defendant digitally penetrated B.B.'s vagina and had sexual intercourse with her while her mother was asleep in the next room; (3) in early 1997, Defendant came into her bedroom and had sexual intercourse with her while her mother was away from the home; and (4) in September 1997, Defendant came into B.B.'s home and had sexual intercourse with her. Here, as in Smith, the evidence shows that Defendant exhibited a pattern of attraction to young girls, and a common plan or scheme to take advantage of younggirls in situations where he had parental or adult responsibility over them. Smith, 152 N.C. App. at 519, 568 S.E.2d at 292.
Furthermore, Defendant's prior indecent liberties conviction occurred in January 1994, less than two years prior to November 1995, the date of Defendant's first sexual advances toward B.B. This prior act is not too remote to consider it irrelevant and therefore inadmissible. See State v. Blackwell, 133 N.C. App. 31, 36, 514 S.E.2d 116, 119 (1999) (quoting State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991) (stating that 'remoteness in time generally affects only the weight to be given such evidence, not its admissibility[,]' and further, that prior cases have held that intervals of seven and ten years are not necessarily too remote to preclude the admission of prior-bad acts).
We conclude that Defendant's conduct with B.B. and T.B. was sufficiently similar and proximate in time to support the admission of T.B.'s testimony under Rule 404(b). This assignment of error is overruled.
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