An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-620
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 20 January 2015


STATE OF NORTH CAROLINA

                                              Guilford County
      v.                                      Nos. 11 CRS 82467-69,
                                              82722-28, 86304, 86306,
                                              88574
DOUGLAS RAYMOND MOORE



      Appeal by defendant from judgments entered 11 October 2013

by Judge R. Stuart Albright in Guilford County Superior Court.

Heard in the Court of Appeals 15 December 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Belinda A. Smith, for the State.

      Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
      appellant.


      STEELMAN, Judge.


      The trial court did not err in admitting evidence pursuant

to Rule 404(b) of the North Carolina Rules of Evidence. The

trial court did not abuse its discretion in applying rule 403.

                      I. Factual and Procedural Background
                                        -2-
    The State presented evidence tending to show that Douglas

Raymond   Moore      (defendant)      sexually   assaulted        C.P.,    X.P.,       and

B.A., who were        his step-grandchildren. C.P. was born in May

2002,   X.P.   was    born    in   October     2003,    and    B.A.     was     born   in

February 2003. The three children were frequent visitors at the

residence defendant shared with their grandmother.

    X.P., who was ten years old at the time of trial, testified

that from the time she was three or four years old until the age

of eight, on multiple occasions defendant made her touch his

bare penis while they were in her grandmother’s bedroom, the

living room or nursery of the home. At times defendant would

touch her front and back privates. The incidents stopped after

X.P. told her father.

    C.P.,      who    was    eleven    years   old     at   the   time    of     trial,

testified that from the time she was four or five years old

until after her eighth birthday, defendant touched her with his

hands in her back private area, both over and under her clothes,

and her upper and lower front private areas over her clothes.

The touching occurred in the living room and X.P. was usually

not present when it occurred. Once, when she was four or five

years   old,   defendant      unzipped    his    pants,       removed     his    penis,

placed it on her lips, and tried to put it in her mouth. He also

showed her “dirty pics of men sticking their lower fronts in
                                      -3-
women’s mouth[s] and stuff like that.” The touching continued

through her eighth birthday and stopped after her father called

the police.

    B.A., who was ten years old at the time of trial, testified

that defendant would touch her front and back privates under her

clothes and underwear. She was five years old when defendant

first started touching her, and was eight or nine years old when

the touching stopped. Defendant touched her front private with

his tongue more than five times, touched his penis to her mouth,

put his penis partially in her lower front private, and touched

his tongue to her lower back private.

    In July 2011 X.P. confided to C.P. that defendant had been

touching her and informed her that she was going to tell their

parents. X.P. told her father that night. C.P. also told her

father that defendant had been touching her. The girls’ father

contacted the police.

    Defendant turned himself in to police on 18 July 2011. He

told the police that the girls pulled down his pants and played

with his penis and that he did not stop them.

    Defendant was indicted for three counts of first degree sex

offense   with   a    child   under   13    years   of    age,    one   count   of

attempted     first    degree   rape,      and   two     counts    of   indecent

liberties with a child as to B.A. As to C.P., defendant was
                                              -4-
indicted for one count of first degree sex offense with a child

under 13 years of age, and three counts of indecent liberties

with    a    child.   As    to   X.P.,    defendant          was    indicted      for   three

counts      of   indecent       liberties      with      a     child.     The    jury   found

defendant        guilty    on     all    counts.         The      trial    court     imposed

consecutive sentences of imprisonment totaling 1,239 to 1,546

months imprisonment.

       Defendant appeals.

                   II. Admission of Evidence under Rule 404(b)

       In his only argument, defendant contends that the court

erred       in   admitting       the    testimony         of      defendant’s      daughter

concerning incidents of defendant’s conduct upon her during the

summers of 1999 and 2000. Defendant asserts that the evidence

had no probative value to prove any material fact other than

defendant’s bad character. We disagree.

                                  A. Standard of Review

       Rule      404(b)    of     our    Rules      of       Evidence      provides     that

“[e]vidence 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.” N.C. Gen. Stat. § 8C-1, Rule
                                             -5-
404(b) (2013). The purposes for which evidence may be admissible

are   not     limited     to     those       listed    in     the        rule.    State     v.

DeLeonardo, 315 N.C. 762, 770, 340 S.E.2d 350, 356 (1986). Rule

404(b)   is    a   general      rule    of    inclusion       of    evidence       of    other

crimes, wrongs or acts, and such evidence will not be excluded

unless 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. State v. Jeter, 326 N.C. 457, 459-

460, 389 S.E.2d 805, 807 (1990).

      Even    if   evidence      is     admissible      for        one    of     the    stated

purposes, the trial court retains the discretion to exclude the

evidence if the          court determines the probative value of the

evidence      is   outweighed      by    the       danger     of    unfair       prejudice,

confusion of the issues or misleading the jury. N.C. Gen. Stat.

§ 8C-1, Rule 403 (2013). We review the court’s ruling as to the

admissibility       of    the    evidence          pursuant    to        Rule    404(b)     to

determine whether the evidence supports the court’s findings of

fact and whether the court’s findings support its conclusions.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159

(2012). We review the court’s decision pursuant to Rule 403 for

abuse of discretion. Id.

                                         B. Analysis
                                    -6-
    After conducting a voir dire hearing, the court permitted

defendant’s daughter, C.M.P., to testify that when she was nine

or ten years old and living in Florida, she visited defendant at

his residence in North Carolina for six weeks during the summer

of 1999. Two or three times that summer, defendant unzipped his

pants, placed her hand on his penis, and had her masturbate him.

When she visited defendant the next summer, defendant repeated

this conduct on two or three occasions. Each time that this

occurred, defendant’s wife was at work. In the summer of 2001,

she returned to defendant’s home but nothing happened as she

went with defendant’s wife to work each day and defendant’s wife

was at home during the evenings. She did not return to North

Carolina after the summer of 2001. Two years prior to the trial,

she received a telephone call from her step-sister (the mother

of X.P. and C.P.), who asked why she stopped coming to North

Carolina. Her step-sister gave her the telephone number for the

district attorney. C.M.P. called the district attorney and told

a detective what had happened to her.

    In ruling that C.M.P.’s testimony about the instances in

which defendant engaged her in masturbation was admissible, the

court found the following facts: (1) defendant was related to

all four – C.M.P., C.P., X.P. and B.A. – by blood or marriage,

either   as   father   or   step-grandfather;   (2)   defendant   sexually
                                                -7-
assaulted all four girls while they were in his custody and

care; (3) defendant used his penis to sexually assault all four

girls, who were all very young, pre-teenage girls; (4) defendant

committed      substantially         similar          sexual    acts       against      all     four

girls; (5) defendant sexually assaulted each girl multiple times

over    a    course    of    a     number      of     years;        (6)    defendant      stopped

sexually assaulting C.M.P. because he lost access to her; (7)

defendant      stopped       sexually         assaulting        the       other    three      girls

after law enforcement was notified and he no longer had access

to them; and (8) defendant took advantage of the availability

and    susceptibility        of     the       girls    when    they       were     left    in   his

custody and care. The court further found that the assaults upon

C.M.P.      were   not      so    remote       in     time     to    render       the     evidence

inadmissible.         The        court    concluded           that        the     evidence      was

admissible under Rule 404(b) to show a plan or scheme, absence

of mistake, absence of accident, or modus operandi. The court

also concluded that the probative value of the evidence was not

substantially         outweighed         by    the     danger       of    unfair     prejudice,

confusion of issues, misleading the jury, undue delay, waste of

time or presentation of cumulative evidence.

       Our    appellate          courts        have    been         “markedly       liberal      in

admitting evidence of similar sex offenses for the purposes now

enumerated in Rule 404(b)[.]” State v. Cotton, 318 N.C. 663,
                                                 -8-
666, 351 S.E.2d 277, 279 (1987). “Such evidence is relevant and

admissible under Rule 404(b) if the incidents are sufficiently

similar and not too remote.” State v. Bagley, 321 N.C. 201, 207,

362 S.E.2d 244, 247-48 (1987).

       The   facts       found      by    the    trial       court,    for    which    we    find

evidentiary support, are similar to those in the case of State

v. Register, 206 N.C. App. 629, 641, 698 S.E.2d 464, 472-73

(2010),      in    which      the    defendant         (1)    sexually       abused   children

related to him by blood or marriage; (2) the abuse occurred when

the children were prepubescent; (3) the abuse occurred while the

defendant’s spouse was away at work and defendant was taking

care   of    the       children;         and    (4)    the    abuse    involved       fondling,

fellatio or cunnilingus, most often taking place in the same

bed. We characterized these facts as presenting “a traditional

example of a common plan.” Id. at 641, 698 S.E.2d at 473. While

there were some significant gaps in time between episodes of

abuse,    we      noted      these    gaps      were    due    to     the    defendant’s     not

having      access      to    children.          We    held    that     the    evidence      was

admissible under Rule 404(b) and that no abuse of discretion was

committed         by   the    court       in    admitting      the    evidence    given      the

persistence of the conduct over a period of time.

       We conclude Register is controlling precedent. We hold that

the    trial       court’s     findings          of    fact    were     supported       by   the
                               -9-
evidence and in turn supported its conclusions of law; that the

trial court did not err in admitting C.M.P.’s testimony; and

that there was no abuse of discretion by the trial court in its

application of the Rule 403 balancing test.

    NO ERROR.

    Judges ELMORE and DILLON concur.

    Report per Rule 30(e).
