STATE of North Carolina
v.
Grady Morris MATHESON.
No. 9330SC58.
Court of Appeals of North Carolina.
June 15, 1993.*431 Atty. Gen., Michael F. Easley by Associate Atty. Gen., Norma L. Ware, Raleigh, for the State.
Hyde, Hoover & Lindsay, by R. Scott Lindsay, Murphy, for defendant-appellant.
WELLS, Judge.
Defendant's only argument brought forward on appeal is that the trial court erred by allowing the introduction of evidence of prior bad acts. Specifically, defendant contends Caroline Sibley's testimony concerning prior sexual assaults was not admissible pursuant to N.C.Gen.Stat. § 8C-1, Rule 404 because it was admitted to show that he acted in conformity therewith. Defendant also contends that even if the testimony were admissible pursuant to Rule 404, its probative value was substantially outweighed by the danger of unfair prejudice in part because the prior bad acts were so remote in time. We disagree.
N.C.Gen.Stat. § 8C-1, Rule 404(b) provides:
(b) Other crimes, wrongs, or acts.Evidence 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.
This rule is a general rule of inclusion of relevant evidence of other crimes, wrongs, or acts by a defendant, subject to the one exception requiring exclusion if its only probative value is to show the defendant had a propensity or disposition to commit an offense like the one charged. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990). Even though the evidence may show the defendant's propensity to commit a particular offense, it is admissible if 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." State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.Gen.Stat. § 8C-1, Rule 401.
The question first before us is whether the testimony of Caroline Sibley was relevant for a purpose other than to show defendant had the propensity to commit the type of offense charged. We conclude that it was, and that it was properly admitted by the trial court.
Prior to ruling that the testimony of Caroline Sibley was admissible, the trial court conducted a voir dire hearing. At the conclusion of the hearing the trial court made findings as to the similarities of the sexual assaults committed against Sibley and the victim in this case:
(a) In both instances on occasions the defendant would shut and lock a door, take the step-daughters by the hand and walk them to the bedroom.
(b) The defendant professed his love for both of the step-children.
(c) Both step-children testified that the defendant would not let them go out on dates.
*432 (d) Both step-children testified that the defendant would approach the step-daughters from behind, penetrate the vagina, and then withdraw before ejaculation.
(e) Both step-daughters testified that the defendant threatened to hurt each if they told and threatened to kill both of them if they reported the incidents.
(f) The defendant had sexual intercourse in a top position in addition to on the side, and that was testified to by both of the step-daughters.
Based upon the findings, the trial court concluded that Sibley's testimony was relevant "for the intent to establish a common plan or scheme embracing the commission of these crimes."
We hold that the testimony of Caroline Sibley was admissible. The testimony was substantially similar to that of the victim in this case and was therefore relevant to show a common plan or scheme on the part of defendant to sexually assault his step-daughters. See State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988).
Having found that the testimony of Caroline Sibley was relevant and admissible pursuant to N.C.Gen.Stat. § 8C-1, Rule 404(b), we must now determine whether it should have been excluded pursuant to N.C.Gen.Stat. § 8C-1, Rule 403, which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
"[T]he period of time elapsing between the separate sexual events plays an important part in this balancing process, especially when the State offers the evidence of like misconduct to show the existence of a common plan or design for defendant's perpetration of this sort of crime." State v. Shane, 304 N.C. 643, 655, 285 S.E.2d 813, 820 (1982), cert. denied, 465 U.S. 1104, 104 S.Ct. 1604, 80 L.Ed.2d 134 (1984).
In this case, Caroline Sibley testified that defendant sexually assaulted her on a weekly basis from 1979 until 1981. Sibley further testified on voir dire that defendant went to prison in Colorado in 1982 and was released from prison in 1984. In 1984, defendant began living with the victim's mother, and in November 1984 he began having forcible intercourse with the victim two or three times a week until she reported it in 1991.
Despite the fact that the offenses charged in this case occurred at least ten years after the last sexual assault on Sibley, the assaults on Sibley were not too remote in time so as to make them inadmissible. Our Supreme Court has stated:
While a lapse of time between instances of sexual misconduct slowly erodes the commonality between acts and makes the probability of an ongoing plan more tenuous, the continuous execution of similar acts throughout a period of time has the opposite effect. When 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. Shamsid-Deen, 324 N.C. 437, 445, 379 S.E.2d 842, 847 (1989). (Citations omitted.) The evidence shows that defendant continuously assaulted Caroline Sibley weekly from 1979 to 1981 and the victim weekly from 1984 to 1991. The only break in defendant's pattern of assaults on his stepdaughters was during the time he was incarcerated in Colorado, and defendant should not be allowed to assert remoteness due to his lack of opportunity to continue his sexual assaults on his stepdaughters. See State v. Riddick, 316 N.C. 127, 340 S.E.2d 422 (1986); State v. Hall, 85 N.C.App. 447, 355 S.E.2d 250, disc. review denied, 320 N.C. 515, 358 S.E.2d 525 (1987).
Defendant's other contentions concerning the probative value of Sibley's testimony being outweighed by the danger of unfair prejudice are likewise without merit. The balancing of probative value against the danger of unfair prejudice is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent abuse of that discretion. *433 State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988). Defendant has failed to show that the testimony of Sibley was unduly prejudicial. See State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986). We hold that the trial court did not abuse its discretion in concluding that the probative value of Sibley's testimony outweighed the danger of unfair prejudice.
In summary, we have found that the testimony of Caroline Sibley was relevant and admissible pursuant to N.C.Gen.Stat. § 8C-1, Rule 404(b) to show a common plan or scheme. We have further found that the acts to which Sibley testified were not so remote in time as to make the testimony unfairly prejudicial and that defendant has failed to show that the trial court abused its discretion in concluding that the probative value of the testimony outweighed any danger of unfair prejudice pursuant to N.C.Gen.Stat. § 8C-1, Rule 403. Defendant's argument that the trial court erred by admitting Sibley's testimony is without merit.
We hold defendant had a fair trial, free from prejudicial error.
No error.
EAGLES and McCRODDEN, JJ., concur.