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LEXIS 1071 (unpublished) (hereinafter "Mills I"), disc. Between 19, Defendant and Nora's mother had two daughters of their own ("Emma" and "Mia"), who were half-sisters to Nora. E.2d 475, 477 (1987) (citations and quotation marks omitted). E.2d at 201 (citation and quotation marks omitted). We do not require that the similarities rise to the level of the unique and bizarre." Beckelheimer, 366 N. Furthermore, the incidents with both Tony and Nora occurred in a family residence.

Jaquins and Browning each interviewed Nora separately, and Browning conducted a medical examination of Nora.

Nora informed both Jaquins and Browning that the first time "her dad had had her have sex with him" was "at their old house." She said this incident had occurred "last year or the year before that" and that he had "told her to go in there and put her butt up towards the ceiling, then he came in there and stuck his penis in her butt." She recounted that the second time it happened "they were over at the trailer" and he "started touching her on her breasts and her butt" and then "told [her] to stick [her] butt up in the air, and he stuck his penis in [her] butt again." She stated that the first incident occurred on the couch in the family's living room and that the second incident occurred when her sisters were outside painting the trailer.

Neither girl testified that Nora ever told them that Defendant had engaged in sexual conduct with her.

Later that evening, Nora texted Leslie from her grandmother's cell phone that Defendant "had kissed her and had had anal and vaginal intercourse with her while they were working in the trailer that day." The following day, Leslie informed several of Nora's family members, and Nora was eventually taken to the Burke County Sheriff's Office. E.2d 271, 286 (internal citations and quotation marks omitted), cert.

Nora informed Browning that "she had told Leslie" about the incident and that "Leslie said they were going to do something about it." As noted above, Defendant was charged with two counts of statutory sexual offense, two counts of sex offense by a substitute parent, two counts of indecent liberties with a minor, and two counts of sexual battery. In order to prevail on an ineffective assistance of counsel claim under the test announced in Strickland v.

His jury trial was scheduled for 8 October 2012 in Mc Dowell County Superior Court. The Rule 404(b) Witnesses On , Defendant filed two motions in limine to preclude the anticipated testimony of Melissa and Tony (his adult niece and nephew) regarding sexual encounters with Defendant that had allegedly occurred while Defendant was a teenager.

At the criminal trial of Timothy Glen Mills ("Defendant"), evidence of his prior sexual acts was erroneously admitted pursuant to Rule 404(b) of the North Carolina Rules of Evidence without any objection by his trial counsel. All three girls lived with Defendant at all times relevant to this action. Here, the trial court allowed the Rule 404(b) evidence to be introduced to the jury "as proof of motive in these cases, opportunity, plan, and/or scheme." Defendant contends that the evidence was inadmissible for any of these purposes. Common Plan or Scheme Our Supreme Court has held that "evidence that the defendant committed similar offenses is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission." State v. In such cases, evidence of prior bad acts "is often viewed as showing a common scheme or plan by the defendant to sexually abuse the victim." Faircloth, 99 N.

In 2002, the children's mother abandoned the family when Nora was seven years old, and Defendant served thereafter as a single father to Nora, Emma, and Mia. E.2d 198, 201 (1990) ("To be admissible, evidence of prior sexual abuse must relate to incidents sufficiently similar and not so remote in time that they are more probative than prejudicial under the balancing test of [Rule] 403." (citation omitted)). Our appellate courts have "been very liberal in admitting evidence of similar sex crimes in construing the exceptions to the general rule." Id. E.2d at 477 (citation and quotation makes omitted). However, as noted above, the admissibility of Rule 404(b) evidence to show a common plan or scheme is limited by the requirements of similarity and temporal proximity. Even assuming arguendo that the acts described by Melissa and Tony were sufficiently similar to Nora's allegations for purposes of Rule 404(b), however, for the reasons set out in the next section we conclude the temporal proximity requirement rendered the testimony of Tony and Melissa inadmissible. Remoteness in Time Our Supreme Court has held that in determining whether Rule 404(b) evidence can be introduced to show a common scheme or plan "the passage of time must play an integral part in the balancing process to determine admissibility of such evidence." State v.

They each stated that it was a hot day and that the windows of the trailer were open as was the front door of the trailer.

Emma testified that she was able to see Defendant and Nora painting and never witnessed any sexual contact between them. "To show prejudice in the context of appellate representation, a petitioner must establish a reasonable probability he would have prevailed on his appeal but for his counsel's unreasonable failure to raise an issue." State v.

The single-wide trailer required a substantial amount of painting and cleaning so Defendant and the girls spent the majority of the summer working on it. In order to show deficiency, he was required to demonstrate that Casterline's failure to assert plain error fell below an objective standard of reasonableness for an appellate attorney. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Rule 404(b) provides, in pertinent part, as follows: (b) Other crimes, wrongs, or acts.