An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1150
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     15 July 2014


STATE OF NORTH CAROLINA

      v.                                      Randolph County
                                              No. 11 CRS 109

DONALD McCAIN SPINKS



      Appeal by defendant from judgment entered 7 March 2013 by

Judge V. Bradford Long in Randolph County Superior Court.                      Heard

in the Court of Appeals 6 March 2014.


      Roy Cooper, Attorney General, by Amy Kunstling                        Irene,
      Assistant Attorney General, for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating
      Wiles, for defendant-appellant.


      DAVIS, Judge.


      Donald     McCain     Spinks     (“Defendant”)       appeals      from    his

conviction of statutory rape of a person who is 13, 14, or 15

years old.      On appeal, he argues that the trial court erred in

(1) admitting evidence of a prior sex-related offense pursuant

to Rule 404(b) of the North Carolina Rules of Evidence; and (2)

calculating Defendant’s prior record level without taking into
                                       -2-


account     prejudice    resulting      from    a   delay   in   Defendant’s

indictment.        After careful review, we conclude that Defendant

received a fair trial free from error.

                              Factual Background

      The State presented evidence at trial tending to establish

the following facts:          The victim (“Emily”)1 was born in 1984.

Emily was raised by her grandmother, and they lived at King Hill

Apartments in Ramseur, North Carolina.              Defendant, whom Emily

called “Duck,” was one of their neighbors and lived in the same

apartment complex.

      One evening in either December of 1997 or January of 19982,

Emily, who was 13 years old, was taking out the trash by herself

and encountered Defendant, who was 28 years old at the time.

Emily and Defendant had previously had conversations about sex,

and, on this occasion, Defendant accused Emily of being scared

to   have   sex.      Emily   denied    being   scared.     Thereafter,   she

entered Defendant’s bedroom window and proceeded to have vaginal

intercourse with him.

      Emily subsequently sought medical treatment for a suspected

urinary tract infection.         During the course of the examination,

Emily learned that       she was       pregnant.    Emily eventually      gave

1
  Pseudonyms are used throughout this opinion to protect the
privacy of the minor children.
2
  The record is unclear as to the precise date on which this
incident occurred.
                                      -3-


birth to a daughter, “Amy,” on 24 September 1998 when she was

fourteen years old.           Approximately two years and four months

later,   Emily   and    her   grandmother      filed    an     action   for    child

support payments on 25 January 2001 with the Randolph County

Department of Social Services (“DSS”).                At the request of Emily

and her grandmother, information relating to the difference in

age between Emily and Defendant was not relayed by DSS to any

law enforcement agency.

    Ultimately, on 16 April 2007, Angie Polito (“Ms. Polito”),

an investigator for Child Protective Services with DSS, became

aware of the age difference between Defendant and Emily during

the course of an investigation concerning Defendant with regard

to a separate incident involving allegations of statutory rape

of his stepdaughter, “Wanda.”               While the district attorney’s

office was preparing for the prosecution of Defendant in the

statutory    rape      case    involving     Wanda,     Ms.      Polito’s      notes

concerning the sexual encounter involving Defendant and Emily

came to the attention of another investigator.                      The district

attorney’s   office     subsequently       contacted     the    Randolph      County

Sheriff’s Office, and Captain Derrick Hill (“Captain Hill”) was

appointed to investigate the case.

    After interviewing Emily on 18 March 2011, Captain Hill

instructed   Detective        Tracy   Turner     of     the     Randolph      County

Sheriff’s Office       to obtain DNA samples from Emily,                 Amy, and
                                         -4-


Defendant.         After    obtaining     these    samples,     DNA     testing   was

conducted     on   them,    and    the   test     results    indicated     that   the

relative probability of Defendant being the father of Amy was

99.9999 percent.

     On 16 May 2011, Defendant was indicted on one count of

statutory rape of a person who is 13, 14, or 15 years old.                          A

jury trial was held in Randolph County Superior Court on 4 March

2013.

     At trial, the State presented evidence pursuant to Rule

404(b) that Defendant had a sexual relationship with his then

stepdaughter Wanda when she was 12 years old — seven years and

seven months after his sexual encounter with Emily.                       The trial

court conducted a voir dire hearing upon Defendant’s motion in

limine to exclude testimony concerning Defendant’s sexual abuse

of   Wanda.        The     trial   court      ruled   that     the     evidence   was

admissible for the limited purposes of showing modus operandi or

the absence of mistake pursuant to Rule 404(b).                      The trial court

gave a corresponding limiting instruction to the jury.

     Defendant was convicted of statutory rape of a person who

is 13, 14, or 15 years old.              Defendant was sentenced as a prior

record   level      IV     offender      to    307-378      months     imprisonment.

Defendant gave notice of appeal in open court.

                                      Analysis

I. Admissibility of Wanda’s Testimony
                                     -5-


    Defendant's       first    argument    on    appeal   is   that   the   trial

court’s admission of Wanda’s testimony about his sexual abuse of

her violated Rules 404(b) and 403 of the North Carolina Rules of

Evidence.   We disagree.

    Our     Supreme    Court     stated    the     following     in   State    v.

Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012):

            For   the   purpose   of   clarity,    we now
            explicitly hold that when analyzing rulings
            applying Rules 404(b) and 403, we conduct
            distinct inquiries with different standards
            of review. . . . We review de novo the legal
            conclusion that the evidence is, or is not,
            within the coverage of Rule 404(b). We then
            review    the   trial    court's    Rule  403
            determination for abuse of discretion.

    A. Rule 404(b) Analysis

    Rule 404(b) states, in pertinent part, 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.R. Evid. 404(b).

    In applying Rule 404(b), this Court has held that

            [c]ases decided under N.C.R. Evid. 404(b)
            state a 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
                                       -6-


               crime charged.

                    Relevant evidence is 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.

State v. Houseright, __ N.C. App. __, __, 725 S.E.2d 445, 447

(2012) (internal citations and quotation marks omitted).

       However, while we construe Rule 404(b) as a general rule of

inclusion, it is “constrained by the requirements of similarity

and temporal proximity.”           State v. Al-Bayyinah, 356 N.C. 150,

154,     567    S.E.2d   120,    123   (2002)   (internal     citations     and

quotation marks omitted).          In conducting this analysis, we bear

in   mind      that   “North    Carolina's   appellate    courts   have    been

markedly liberal in admitting evidence of similar sex offenses

to show one of the purposes enumerated in Rule 404(b).                      Our

Supreme Court has been very liberal in admitting evidence of

similar sex crimes in construing the exceptions to the general

rule."      State v. Thaggard, 168 N.C. App. 263, 270, 608 S.E.2d

774,     780    (2005)    (internal    citations    and     quotation     marks

omitted).

       This Court has made clear that “[i]t is not necessary that

the similarities between the two situations rise to the level of

the unique and bizarre.            Rather, the similarities simply must

tend to support a reasonable            inference that the same person
                                        -7-


committed     both    the     earlier    and   later    acts.”       State    v.

Williamson, 146 N.C. App. 325, 333, 553 S.E.2d 54, 60 (2001)

(internal citations and quotation marks omitted), disc. review

denied, 355 N.C. 222, 560 S.E.2d 366 (2002).             Furthermore,

            it is clear that there are no bright line
            rules when considering the remoteness prong
            of the Rule 404(b) admissibility test.    For
            example, when the evidence challenged by a
            defendant suggests an ongoing and repetitive
            course of conduct by that defendant, a
            longer period of time in which the defendant
            has allegedly been continuing the similar
            conduct tends to make the evidence more
            relevant, not less, for proving a common
            scheme or plan. . . . Furthermore, the more
            striking the similarities between the facts
            of the crime charged and the facts of the
            prior bad act, the longer evidence of the
            prior   bad   act    remains   relevant   and
            potentially admissible for certain purposes.

State v. Gray, 210 N.C. App. 493, 507, 709 S.E.2d 477, 487-88

(2011),   disc.      review   denied,    365   N.C.    555,   723   S.E.2d   540

(2012).     Conversely, “remoteness in time may be significant when

the evidence of the prior crime is introduced to show that both

crimes arose out of a common scheme or plan; but remoteness is

less significant when the prior conduct is used to show intent,

motive, knowledge, or lack of accident.”                State v. Hipps, 348

N.C. 377, 405, 501 S.E.2d 625, 642 (1998), cert. denied, 525

U.S. 1180, 143 L.Ed.2d 114 (1999).

            1. Similarity between Prior Act and Charged Act
                                      -8-


       After conducting a voir dire hearing based on Defendant’s

motion in limine, the trial court found that the prior sexual

abuse described by Wanda and the alleged sexual abuse of Emily

shared the following similarities:                 (1) both Wanda and Emily

were females between the ages of 12 and 14; (2) Emily and Wanda

were   both   African-American;       (3)    Defendant       engaged   in    vaginal

intercourse    with     both   victims;     (4)    neither    incident       involved

threats or the use of force; and (5) Defendant “verbally cajoled

both girls into submitting . . . [to] sexual intercourse with

him[.]”     We also note the further similarity that both incidents

took place in Defendant’s residence.

       Defendant argues that the incidents were dissimilar in the

following ways:       (1) Emily was a neighbor whereas Wanda was his

stepdaughter; (2) Defendant “teased [Emily] about being scared

to have sex” whereas Defendant “required [Wanda] to ‘do a deal’

when she wanted certain things;” (3) Wanda, unlike Emily, was a

virgin; (4) Emily “voluntarily had sexual intercourse with him”

whereas he “required [Wanda] to have sex with him;” (5) Emily

only    had   sexual     intercourse        with    Defendant        once    whereas

Defendant “required [Wanda] to have sexual intercourse once a

week over a period of approximately a year and eight months;”

and (6) Emily “didn’t see nothing wrong with it” whereas Wanda

initially     refused     to   tell    her     friends       about     the    sexual

encounters.
                                            -9-


       In Houseright, Rule 404(b) evidence was allowed to show a

common scheme or plan on the part of the defendant in that case

to engage in sexual activity with young girls.                      Houseright, __

N.C. App. at __, 725 S.E.2d at 449.                      The defendant engaged in

repeated sexual activity with the victim over a two year period

during which the victim was between 13 and 15 years old.                            Id.

The State in           Houseright, pursuant to Rule 404(b),                sought to

admit the testimony of another girl who stated at trial that the

defendant had a sexual encounter with her when she was either 13

or 14 years old.         Id.

       Based upon these facts, we reasoned that “[the Rule 404(b)

witness’s] testimony as to her sexual encounter with defendant

tends to make the existence of a plan or intent to engage in

sexual    activity       with      young    girls   more     probable.”      Id.     We

therefore       held    “that      [the     Rule    404(b)    witness’s]     testimony

regarding a prior sexual encounter with defendant was properly

admitted under N.C.R. Evid. 404(b) for the purpose of showing

defendant's plan[.]”               Id. at __, 725 S.E.2d at 450; see also

State v. Roberson, 93 N.C. App. 83, 85, 376 S.E.2d 486, 487-88

(1989) (where victim was unrelated to defendant, one of State’s

Rule    404(b)    witnesses        was     defendant’s     daughter,   and    the   two

girls    were    12     and    6    years    old    respectively    when     defendant

sexually assaulted them, Rule 404(b) witness’s testimony fell

within common plan or scheme exception under Rule 404(b)).
                                             -10-


      Here, the trial court carefully considered this issue after

conducting       a       voir    dire      hearing    and    noted      a     number    of

similarities between Defendant’s sexual conduct with Emily and

Wanda.     We agree that these similarities suffice for purposes of

admissibility under Rule 404(b).

            2. Temporal Proximity

      Defendant relies heavily on State v. Jones, 322 N.C. 585,

369 S.E.2d 822 (1988), in arguing that the remoteness in time

between his sexual abuse of Wanda and the sexual incident with

Emily rendered the evidence as to Wanda inadmissible under Rule

404(b).     In Jones, the North Carolina Supreme Court held that a

seven-year lapse in time between the sexual offenses for which

the   defendant          was    on   trial     and   the    proffered       Rule    404(b)

evidence    by       a   witness     who     testified     that   she   too    had     been

sexually assaulted by the defendant was too temporally remote to

constitute    a      common      plan   or    scheme,      despite   the     acts    being

similar.     Id. at 591, 369 S.E.2d at 825.                   However, since Jones

was decided, the Supreme Court has made clear that there is no

bright-line test for determining temporal proximity:

            This Court has been liberal in allowing
            evidence of similar offenses in trials on
            sexual crime charges.  Subsequent to Jones,
            it has permitted testimony as to prior acts
            of sexual misconduct which occurred more
            than seven years earlier.      In State v.
            Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842
            (1989), a case tried prior to the effective
            date of the Rules of Evidence, we held that
                                            -11-


                it was not error for the trial court to
                admit the testimony of sisters of the victim
                that their father had also sexually abused
                them.   There, the defendant's prior sexual
                misconduct with the sisters occurred during
                a twenty-year period. Likewise, we recently
                held that a ten-year gap between instances
                of similar sexual misbehavior did not render
                them so remote in time as to negate the
                existence of a common plan or scheme.

State v. Frazier, 344 N.C. 611, 615-16, 476 S.E.2d 297, 300

(1996) (internal citations omitted).

       In the present case, a gap of approximately seven years and

seven months existed.                  Based on the case law discussed above,

and   in    light    of     the    similarities         between     Defendant’s     sexual

abuse      of   Emily     and     Wanda,    we    are     satisfied    that   the   trial

court’s admission of Wanda’s testimony under Rule 404(b) was

proper.

       B. Rule 403

       Defendant further contends that the trial court erred in

determining under Rule 403 that the probative value of the Rule

404(b) evidence was not substantially outweighed by the danger

of    unfair     prejudice.             “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.”

N.C.R.      Evid.    403.         We    “review     the    trial    court's      Rule   403
                                     -12-


determination for abuse of discretion.”            Beckelheimer, 366 N.C.

at 130, 726 S.E.2d at 159.

    In the present case, the trial court — as discussed above —

admitted evidence of Defendant’s acts of sexual intercourse with

Wanda   under   Rule   404(b)      for   the   purpose   of     showing     modus

operandi and absence of mistake.            The trial court then gave the

jury a limiting instruction          that it could only consider the

evidence for those limited purposes.            On these facts, we cannot

say that the trial court abused its discretion.               See id. at 133,

726 S.E.2d at 160-61 (holding that trial court did not abuse its

discretion under Rule 403 in admitting evidence of defendant's

prior sexual abuse where the Rule 404(b) evidence was probative

of defendant's modus operandi and trial court gave jury limiting

instruction     regarding    proper      consideration     of    Rule     404(b)

evidence).

II. Calculation of Prior Record Level

    Defendant’s final argument is that the trial court erred in

calculating his prior record level without taking into account

prejudice accruing to him from the delay in charging him for his

sexual abuse of Emily.          He asserts that he was not indicted

until   13   years   after   the   incident    involving      Emily   and    that

during this 13-year period he was convicted of possession with

intent to sell or deliver cocaine, thereby causing his prior

record level to be higher for sentencing purposes at trial than
                               -13-


it would have been if the case had been prosecuted before 2010

(the date of the drug-related conviction).       Defendant argues

that as a result of this set of events, his constitutional right

to due process was violated.

     The standard of review for constitutional questions is de

novo.   Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc.,

353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).      In order for a

defendant to show that a pre-indictment delay violated his due

process rights

          he must show both actual and substantial
          prejudice from the pre-indictment delay and
          that the delay was intentional on the part
          of the State in order to impair defendant's
          ability to defend himself or to gain
          tactical    advantage  over  the  defendant.
          Thus, in order to obtain a ruling that pre-
          indictment delay violated his due process
          rights, defendant must show actual prejudice
          in the conduct of his defense and that the
          delay was unreasonable, unjustified, and
          engaged in for the impermissible purpose of
          gaining   a   tactical  advantage over   the
          defendant.

State v. Martin, 195 N.C. App. 43, 47, 671 S.E.2d 53, 57 (2009)

(internal citations and quotation marks omitted).

     Defendant’s primary contention is that had DSS contacted a

law enforcement agency at the time that it first became aware of

Defendant’s sexual abuse of Emily, Defendant would have been

tried before he was convicted of the 2010 drug-related offense

such that the 2010 conviction would not have been on his record
                                       -14-


for sentencing purposes.            There are several problems with his

argument.

    First, Defendant incorrectly asserts that a department of

social    services   represents       the     State    in    a   law     enforcement

capacity.       Such a position is foreclosed by our decision in

Martin, 195 N.C. App. 43, 671 S.E.2d 53:

            Although defendant is correct that DSS is
            required to report evidence of abuse to the
            district attorney, both our general statutes
            and case law make it clear that DSS is not a
            law enforcement agency nor does it prosecute
            criminal cases.     Therefore, any purported
            delay on the part of DSS cannot carry
            defendant's    burden     of   showing   any
            intentional act on the part of the state in
            order to impair defendant's ability to
            defend himself or to gain tactical advantage
            over the defendant.

Id. at 48, 671 S.E.2d at 58 (internal citations and quotation

marks    omitted).       As   such,   Defendant       has   failed      to   show    any

intentional delay on the part of a State law enforcement agency

or that any delay in his indictment was intended to impair his

ability    to   defend    himself     at    trial     or    to   gain    a    tactical

advantage over him.

    Second, Defendant’s 2010 conviction resulted from his own

voluntary decision to commit a criminal offense.                             Thus,   his

enhanced record level is due to his own criminal conduct rather

than any misconduct on the part of the State.

                                  Conclusion
                                   -15-


    For   the   reasons   stated    above,   we   hold   that   Defendant

received a fair trial free from error.

    NO ERROR.

    Judges CALABRIA and STROUD concur.

    Report per Rule 30(e).
