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Criminal Practice — Sexual Offense with a Child – First-Degree Sexual Offense – Lesser-Included Offense – Evidence – Other Bad Acts

Criminal Practice — Sexual Offense with a Child – First-Degree Sexual Offense – Lesser-Included Offense – Evidence – Other Bad Acts

Even though defendant was indicted for sexual offense with a child in violation of G.S. § 14-27.4A, and even though that statute was not enacted until several years after the events alleged in the indictment, since the indictment alleged all the elements of first-degree sexual offense under existing statute G.S. § 14-27.4, and since first-degree sexual offense is a lesser-included offense of sexual offense with a child, the trial court had jurisdiction to enter judgments against defendant for first-degree sexual offense.

We find no error in defendant’s convictions of 15 counts of first-degree sexual offense and 49 counts of taking indecent liberties with a child.

Defendant argues the trial court erred in allowing his former stepdaughter to testify, based upon the court’s conclusion that her testimony was sufficiently similar to the allegations in the indictment. Defendant argues, “The only similarities were the age of the alleged victim and the generic nature of the location as a bathroom.” However, the similarities in the evidence exceed those noted by defendant.

In all instances, defendant held a position of authority over the victims, either as a teacher or a stepfather. Defendant’s dominant position provided him easy access to his child victims. The chosen location—the bathroom—was more than a generic location, as it provided a closed-door, isolated spot which the children associated with privacy.

The alleged assaults were also similar in nature. Defendant removed only the clothes necessary for him to expose his penis, and he used his penis to perpetrate each alleged assault. Thus, the evidence supports the trial court’s finding that “the facts are similar … specifically her testimony of how it occurred, how he took her to the bathroom.”

Furthermore, the evidence presented at trial supports the trial court’s finding that the incidents involving the alleged victims and the former stepdaughter all occurred in the mid to late 1990s. As the trial court made findings of fact regarding the similarity and temporal proximity of the incidents, we hold the trial court did not err in admitting the stepdaughter’s testimony pursuant to N.C. R. Evid. 404(b).

No error.

State v. Young (Lawyers Weekly No. 012-074-22, 14 pp.) (Donna Stroud, C.J.) Appealed from Iredell County Superior Court (Joseph Crosswhite, J.) Teresa Postell for the state; John Carella for defendant. 2022-NCCOA-115


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