{ "id": 11435979, "name": "STATE OF NORTH CAROLINA v. GARRY LEWIS BECKHAM", "name_abbreviation": "State v. Beckham", "decision_date": "2001-07-17", "docket_number": "No. COA00-951", "first_page": "119", "last_page": "127", "citations": [ { "type": "official", "cite": "145 N.C. App. 119" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "448 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "871", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525160 ], "year": 1994, "pin_cites": [ { "page": "615", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0609-01" ] }, { "cite": "373 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "trial court's consolidation of four sexual offenses for trial was not error where all charges involved acts of sexual abuse by defendant under similar circumstances" } ], "opinion_index": 0 }, { "cite": "323 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561317, 2564525, 2566353, 2562130, 2561211 ], "year": 1988, "pin_cites": [ { "parenthetical": "trial court's consolidation of four sexual offenses for trial was not error where all charges involved acts of sexual abuse by defendant under similar circumstances" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0367-01", "/nc/323/0367-04", "/nc/323/0367-05", "/nc/323/0367-02", "/nc/323/0367-03" ] }, { "cite": "369 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "trial court's consolidation of four sexual offenses for trial was not error where all charges involved acts of sexual abuse by defendant under similar circumstances" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525371 ], "year": 1988, "pin_cites": [ { "parenthetical": "trial court's consolidation of four sexual offenses for trial was not error where all charges involved acts of sexual abuse by defendant under similar circumstances" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0547-01" ] }, { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "holding that trial court's consolidation for trial of four sexual offenses allegedly occurring in two episodes a week apart was not error" } ], "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "year": 1988, "pin_cites": [ { "parenthetical": "holding that trial court's consolidation for trial of four sexual offenses allegedly occurring in two episodes a week apart was not error" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "539 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 845", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132140, 132305, 131991, 131931, 132284 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0845-05", "/nc/350/0845-03", "/nc/350/0845-04", "/nc/350/0845-02", "/nc/350/0845-01" ] }, { "cite": "511 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "336" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237490 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "254-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0248-01" ] }, { "cite": "429 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548808, 2550033 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0541-01", "/nc/333/0541-02" ] }, { "cite": "424 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525063 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0575-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "540 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "722-23" } ], "opinion_index": 0 }, { "cite": "353 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135728 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "64-65" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0050-01" ] }, { "cite": "43 L. Ed. 2d 445", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "420 U.S. 966", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11660704, 11660457, 11660489, 11660558, 11660431, 11660591, 11660529, 11660626, 11660669 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/420/0966-09", "/us/420/0966-02", "/us/420/0966-03", "/us/420/0966-05", "/us/420/0966-01", "/us/420/0966-06", "/us/420/0966-04", "/us/420/0966-07", "/us/420/0966-08" ] }, { "cite": "504 F.2d 377", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 109533 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/504/0377-01" ] }, { "cite": "231 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "581" } ], "opinion_index": 0 }, { "cite": "291 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558792 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0562-01" ] }, { "cite": "306 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "235-36" }, { "page": "112", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "309 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761884 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0231-01" ] }, { "cite": "439 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523857 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0605-01" ] }, { "cite": "369 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514083 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0585-01" ] }, { "cite": "143 L. Ed. 2d 114", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "525 U.S. 1180", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11237402, 11237542, 11237416, 11237480, 11237450, 11237391, 11237520, 11237620, 11237653, 11237590, 11237463, 11237434, 11237339, 11237500, 11237566 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/525/1180-03", "/us/525/1180-11", "/us/525/1180-04", "/us/525/1180-08", "/us/525/1180-06", "/us/525/1180-02", "/us/525/1180-10", "/us/525/1180-14", "/us/525/1180-15", "/us/525/1180-13", "/us/525/1180-07", "/us/525/1180-05", "/us/525/1180-01", "/us/525/1180-09", "/us/525/1180-12" ] }, { "cite": "501 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "642" }, { "page": "642", "parenthetical": "\"[t]he determination of whether relevant evidence should be excluded under Rule 403 is a matter that is left in the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion\"" } ], "opinion_index": 0 }, { "cite": "348 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659773 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "405" }, { "page": "405-06" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0377-01" ] }, { "cite": "537 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132011, 132268, 131949, 132212, 132255 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0595-03", "/nc/350/0595-04", "/nc/350/0595-05", "/nc/350/0595-01", "/nc/350/0595-02" ] }, { "cite": "514 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "133 N.C. App. 31", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11215554 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/133/0031-01" ] }, { "cite": "476 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867709 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0611-01" ] }, { "cite": "464 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "121 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915066 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/121/0001-01" ] }, { "cite": "379 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "involving nearly five-year lapse of time between sexual acts" } ], "opinion_index": 0 }, { "cite": "324 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483464, 2486888, 2484651, 2484500, 2484597 ], "year": 1989, "pin_cites": [ { "parenthetical": "involving nearly five-year lapse of time between sexual acts" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0435-05", "/nc/324/0435-04", "/nc/324/0435-02", "/nc/324/0435-03", "/nc/324/0435-01" ] }, { "cite": "376 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "487-88", "parenthetical": "involving nearly five-year lapse of time between sexual acts" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527845 ], "year": 1989, "pin_cites": [ { "page": "85", "parenthetical": "involving nearly five-year lapse of time between sexual acts" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0083-01" ] }, { "cite": "523 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155670 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0277-01" ] }, { "cite": "367 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "147" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524160 ], "year": 1988, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0584-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "404 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "197" }, { "page": "197" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519288 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "9" }, { "page": "9" }, { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1999, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1999, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(1)", "parenthetical": "providing that the prohibited acts must have been undertaken, or attempted, \"for the purpose of arousing or gratifying sexual desire\"" }, { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 808, "char_count": 19540, "ocr_confidence": 0.758, "pagerank": { "raw": 7.40264746740196e-08, "percentile": 0.44282118378330165 }, "sha256": "94816305d0b0c6d2e33e88a758c6c6827c2c086b6105f3dc69b07825f5100ebd", "simhash": "1:03497470947a5dfe", "word_count": 3188 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CAMPBELL and BIGGS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GARRY LEWIS BECKHAM" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant appeals from his convictions for two counts of taking indecent liberties with a child under N.C. Gen. Stat. \u00a7 14-202.1 (1999), and one count of first degree statutory rape of a female child under thirteen years of age under N.C. Gen. Stat. \u00a7 14-27.2(a)(l) (1999). We find no prejudicial error.\nThe evidence presented by the State tends to show that while his friends, a husband and wife, left town for a wedding, defendant stayed at their residence with their two minor children, and with an acquaintance of theirs, a thirteen-year old female friend.\nOne evening while defendant and the children watched a movie, defendant masturbated in front of the children. Later that evening, after the children had gone to bed, defendant allegedly raped the thirteen-year old female friend. Following indictment and trial, defendant was convicted of two counts of taking indecent liberties with each of his friends\u2019 children, and the statutory rape of the thirteen-year old female friend.\nDefendant appeals from these convictions arguing first that the trial court committed reversible error by admitting the testimony of two of the State\u2019s witnesses. At trial, the State called two female witnesses to testify regarding certain prior acts of the defendant under N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999). Upon defendant\u2019s objection, the trial court conducted voir dire examinations of the proposed witnesses and heard arguments from counsel. The trial court then overruled defendant\u2019s objections and allowed both witnesses to testify before the jury.\nThe first female witness testified on voir dire that she had been good Mends with defendant\u2019s daughter when they were in elementary school. She would visit defendant\u2019s daughter and often stayed overnight at defendant\u2019s house. She testified that defendant would frequently expose his genitals and play with his penis in front of her and his daughter. She recalled that defendant exposed himself and masturbated in front of her in 1983 or 1984.\nIn her voir dire testimony, the second female witness testified she was also a good childhood friend of defendant\u2019s daughter and stayed overnight at defendant\u2019s house on occasion. She testified that defendant frequently exposed himself to the children, and on one occasion in May 1986, defendant entered the room where she and his daughter were sleeping, sat on the edge of her bed, picked up her hand and began \u201cplaying with himself.\u201d\nEvidence of other bad acts is inadmissible under Rule 404(b) if its sole purpose is \u201cto prove the character of a person in order to show that he acted in conformity therewith.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b). Thus, even if evidence tends to show a defendant\u2019s propensity to commit bad acts, such evidence is nonetheless admissible under Rule 404(b) if it is relevant for some other purpose, such as to show, for example, opportunity, intent, knowledge, identity, or absence of mistake or accident. See id. The State contends that the challenged evidence was relevant to show defendant\u2019s intent and the absence of any alleged accident. \u201cWhen prior incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in Rule 403.\u201d State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991); see N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1999).\nThe gravamen of the offense of taking indecent liberties under N.C. Gen. Stat. \u00a7 14-202.1(a)(1) is the defendant\u2019s purpose in undertaking the prohibited act. State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990); N.C. Gen. Stat. \u00a7 14-202.1(a)(1) (providing that the prohibited acts must have been undertaken, or attempted, \u201cfor the purpose of arousing or gratifying sexual desire\u201d). A defendant\u2019s purpose in performing an act, like intent, is a mental attitude, and is rarely demonstrable by direct evidence; ordinarily it must be inferred. State v. Jones, 89 N.C. App. 584, 598, 367 S.E.2d 139, 147 (1988), overruled on other grounds, State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000); West, 103 N.C. App. at 9, 404 S.E.2d at 197. As prior similar acts are admissible to show intent, so may they be admitted to show a defendant\u2019s purpose under N.C. Gen. Stat. \u00a7 14-202.1(a)(l). See West, 103 N.C. App. at 9, 404 S.E.2d at 197. Thus, the evidence of prior sexual acts by defendant was offered for a proper purpose under Rule 404(b).\nDefendant contends, however, that the testimony by the two female witnesses in this case referred to incidents that were too remote and thus ran afoul of the balancing test in Rule 403. N.C. Gen. Stat. \u00a7 8C-1, Rule 403; see West. The first female witness\u2019s testimony concerned alleged prior acts of defendant occurring in 1983 or 1984, at least fourteen years earlier than the acts occurring in April 1998 for which defendant was on trial. The second female witness\u2019s testimony concerned acts occurring some twelve years prior to the alleged incidents in April 1998.\nWhile the period of elapsed time since the prior sexual acts is an important part of the Rule 403 balancing process, and the passage of time may slowly erode the commonalities between the prior acts and the acts currently charged, the lapse of time in this case does not sufficiently diminish the striking similarities between the acts. See State v. Roberson, 93 N.C. App. 83, 85, 376 S.E.2d 486, 487-88, disc. review denied, 324 N.C. 435, 379 S.E.2d 247 (1989) (involving nearly five-year lapse of time between sexual acts); State v. Frazier, 121 N.C. App. 1, 464 S.E.2d 490 (1995), aff'd, 344 N.C. 611, 476 S.E.2d 297 (1996); State v. Blackwell, 133 N.C. App. 31, 514 S.E.2d 116, cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999). Furthermore, \u201cremoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident.\u201d 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). Accordingly, we conclude that the lapse of time between the defendant\u2019s sexual acts in the instant case goes to the weight of the evidence, not to its admissibility. See id.\nNonetheless, defendant, relying heavily upon State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988) and State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812 (1994), contends that this Court and our Supreme Court have consistently ruled \u201cthat the trial courts of North Carolina [must] make specific and meaningful findings regarding remoteness.\u201d In Jacob, this Court stated that \u201c[t]he trial court [in Jones, 322 N.C. 585, 369 S.E.2d 822] failed to make specific findings indicating the significance of the remoteness factor, and the omission was found to be error.\u201d Jacob, 113 N.C. App. at 610, 439 S.E.2d at 815. In contrast, the transcript in the case at bar clearly indicates that the trial court carefully considered the remoteness factor, concluding that defendant\u2019s prior sexual acts were \u201cnot so remote in time as to be more prejudicial than probative for the purpose of proving ... absence of mistake or intent.\u201d As the transcript evidences the trial court\u2019s careful consideration of the remoteness factor, defendant\u2019s argument is without merit.\nDefendant also contends that the testimony of the two female witnesses, while it may have been admissible in connection with the indecent liberties charges, was inadmissible under Rule 403 with respect to the rape charge as it was not sufficiently similar for its probative value to outweigh any prejudice. We disagree.\nIn ruling on the admissibility of the testimony of the two female witnesses, the trial court recognized that their testimony was not corroborative of or similar to the testimony offered by the thirteen-year old alleged victim in this case relating to the rape charge, \u201cinsofar as actual penetration is concerned.\u201d We note that defendant did not oppose the State\u2019s motion to join the cases for trial and voiced no objection to the trial court\u2019s limiting instructions following the testimony by the two female witnesses. We, therefore, conclude that the trial court did not abuse its discretion in admitting the testimony by the two female witnesses regarding defendant\u2019s prior sexual acts. See Hipps, 348 N.C. at 405-06, 501 S.E.2d at 642 (\u201c[t]he determination of whether relevant evidence should be excluded under Rule 403 is a matter that is left in the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion\u201d).\nDefendant next contends that the trial court erred by admitting testimony by his friends\u2019 two children \u2014 a minor male and female\u2014 regarding prior acts of defendant. Both children testified that defendant frequently \u201cplayed with himself\u2019 and masturbated in their presence, often when their mother, who worked nights, was asleep and their father was out working. Furthermore, the two children testified that defendant had asked them on occasion to touch his penis and told them not to say anything of these incidents or they would get in trouble and he would go to jail. One of the children stated during voir dire examination that he did not remember when defendant began masturbating in front of him but was unwavering in his testimony that defendant had done so numerous times.\nDefendant argues that these prior acts were in no way similar to the alleged rape of the thirteen-year old alleged female victim, and \u201cwere only relevant to the indecent liberties charges.\u201d He argues further that these prior acts, when viewed as a whole, were not sufficiently similar and were too remote in time, such that their probativity did not outweigh their prejudice to defendant under Rule 403. The trial court concluded that the testimony was relevant and admissible as to the rape charge as well as the indecent liberties charges \u201cto show common intent, scheme and design\u201d and opportunity insofar as they involved incidents of a sexual nature with children. Defendant emphasizes that the two children of his friends could not remember the precise dates and times when defendant performed the prior acts. However, statements by both children indicated that the incidents to which they were testifying occurred no more than two years prior to the incident in April 1998. Under the circumstances, we conclude that the trial court did not abuse its discretion in permitting the testimony by the two children as to defendant\u2019s prior sexual acts in their presence.\nNext, defendant asserts that the trial court erred by failing to take appropriate measures sua sponte to evaluate defendant\u2019s mental state and capacity. Defendant also argues that the trial court erred in denying his motion for appropriate relief, which raised this same argument. We find no error.\nN.C. Gen. Stat. \u00a7 15A-1001 (1999) provides:\nNo person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner.\nUnder N.C. Gen. Stat. \u00a7 15A-1002(a) (1999), the question of a defendant\u2019s capacity to proceed may be raised on motion by the trial court. In State v. Heptinstall, 309 N.C. 231, 306 S.E.2d 109 (1983), our Supreme Court recognized that \u201ccircumstances could exist where the trial court has a constitutional duty to make such an inquiry.\u201d Id. at 235-36, 306 S.E.2d at 112 (emphasis added) (citing State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977)).\nHowever, Young stated that \u201c \u2018[A] trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.\u2019 \u201d 291 N.C. at 568, 231 S.E.2d at 581 (quoting Crenshaw v. Wolff, 504 F.2d 377 (8th Cir. 1974), cert. denied, 420 U.S. 966, 43 L. Ed. 2d 445 (1975)). Upon careful review of the record, we conclude that there was insufficient evidence before the trial court in the instant case indicating defendant\u2019s mental incompetence, and the trial court was, therefore, under no constitutional duty to institute a competency hearing sua sponte under G.S. \u00a7 15A-1002(a). We conclude further that the trial court committed no error in denying defendant\u2019s motion for appropriate relief on this basis.\nDefendant next contends that he was denied the effective assistance of counsel, based on his trial counsel\u2019s failure to move for a severance of the indecent liberties and rape charges, and his failure to take appropriate measures regarding defendant\u2019s mental state and capacity to proceed. We disagree.\nA defendant\u2019s constitutionally-guaranteed right to counsel includes the right to the effective assistance of counsel. See State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000). To establish a claim for ineffective assistance of counsel, a defendant must show that his counsel\u2019s assistance w;as deficient under the circumstances, and that such deficiencies prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984); State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985); Grooms, 353 N.C. at 64-65, 540 S.E.2d at 722-23.\nDefendant has failed to satisfy this test in the instant case. Assuming arguendo that defendant\u2019s counsel erred by failing to oppose the State\u2019s motion to join the charges against defendant for trial or by failing to move for a severance of the charges under N.C. Gen. Stat. \u00a7 15A-927 (1999), defendant has failed to show that he was prejudiced thereby. N.C. Gen. Stat. \u00a7 15A-926 (1999) permits the join-der of offenses within the discretion of the trial court, and such join-der will only be disturbed on appeal where defendant demonstrates that joinder denied him a fair trial. See State v. Wilson, 108 N.C. App. 575, 424 S.E.2d 454, appeal dismissed, disc. review denied, 333 N.C. 541, 429 S.E.2d 562 (1993).\nThe trial court\u2019s consolidation of charges with a transactional connection will only be disturbed upon a showing of an abuse of discretion. See State v. Monk, 132 N.C. App. 248, 511 S.E.2d 332, appeal dismissed, disc. review denied, 350 N.C. 845, 539 S.E.2d 1 (1999). Our courts have previously held in various circumstances that it was not error for the trial court to consolidate multiple sexual offense charges against a defendant where such offenses were transaction-ally connected. See State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988) (holding that trial court\u2019s consolidation for trial of four sexual offenses allegedly occurring in two episodes a week apart was not error); State v. Bruce, 90 N.C. App. 547, 369 S.E.2d 95, disc. review denied, 323 N.C. 367, 373 S.E.2d 549 (1988) (trial court\u2019s consolidation of four sexual offenses for trial was not error where all charges involved acts of sexual abuse by defendant under similar circumstances); see also Monk, 132 N.C. App. at 254-55, 511 S.E.2d at 336.\n\u201cA defendant is not prejudiced by the joinder of two crimes unless the charges are \u2018so separate in time and place and so distinct in circumstances as to render the consolidation unjust and prejudicial to defendant.\u2019 \u201d State v. Howie, 116 N.C. App. 609, 615, 448 S.E.2d 867, 871 (1994) (citations omitted). We cannot conclude in the instant case that the two counts of taking indecent liberties and the single count of statutory rape were sufficiently separate and distinct circumstantially to render their consolidation prejudicial to defendant. Furthermore, as it was not error for the trial court to consolidate the charges, we cannot find error in defendant\u2019s counsel\u2019s decision not to argue for the severance of such charges. This assignment of error is without merit.\nAs to defendant\u2019s argument that he was denied the effective assistance of counsel by his counsel\u2019s failure to demand a hearing on defendant\u2019s competency, we note, as above, that there was insufficient evidence at trial of defendant\u2019s incompetency. Indeed, defendant\u2019s counsel testified at the hearing on defendant\u2019s motion for appropriate relief that defendant was very intelligent, comprehended the charges and proceedings against him, and effectively assisted counsel in defending him. See N.C. Gen. Stat. \u00a7 15A-1001. Defendant has therefore failed to show that his counsel was deficient in failing to demand a competency hearing. See id. Defendant\u2019s remaining assignments of error are without merit.\nNo error.\nJudges CAMPBELL and BIGGS concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Sarah Ann Lannom, for the State.", "Homesley, Jones, Gaines, Homesley & Dudley, by L. Ragan Dudley, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARRY LEWIS BECKHAM\nNo. COA00-951\n(Filed 17 July 2001)\n1. Evidence\u2014 prior crimes or acts \u2014 sexual acts \u2014 remoteness \u2014 intent and absence of accident\nThe trial court did not abuse its discretion in a first-degree statutory rape and taking indecent liberties case by admitting the testimony of two of the State\u2019s witnesses concerning defendant\u2019s prior sexual acts with minor females some twelve and fourteen years prior to these incidents, because: (1) the evidence was admissible under N.C.G.S. \u00a7 8C-1, Rule 404(b) to show defendant\u2019s intent and the absence of any alleged accident; (2) the lapse of time in this case since the prior sexual acts does not sufficiently diminish the striking similarities between the acts and goes to the weight of the evidence rather than to its admissibility; and (3) the trial court concluded defendant\u2019s prior sexual acts were not so remote in time as to be more prejudicial than probative under N.C.G.S. \u00a7 8C-1, Rule 403.\n2. Evidence\u2014 prior crimes or acts \u2014 sexual acts \u2014 common intent, scheme and design, and opportunity\nThe trial court did not abuse its discretion in a first-degree statutory rape and taking indecent liberties case by admitting the testimony of two of the victims concerning defendant\u2019s prior sexual acts, because: (1) the testimony was relevant to show common intent, scheme and design, and opportunity insofar as they involved incidents of a sexual nature with children; and (2) the statements by both children indicated the incidents occurred no more than two years prior to the incident in April 1998.\n3. Criminal Law\u2014 mental capacity of defendant \u2014 sufficiency of evidence\nThe trial court did not err in a first-degree statutory rape and taking indecent liberties case by allegedly failing to take appropriate measures sua sponte to evaluate defendant\u2019s mental state and capacity under N.C.G.S. \u00a7 15A-1002(a), because there was insufficient evidence before the trial court indicating defendant\u2019s mental incompetence.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to move for severance of charges \u2014 failure to take measures regarding defendant\u2019s mental state and capacity\nA defendant was not denied the effective assistance of counsel based on his counsel\u2019s alleged failure to move for a severance of the indecent liberties and rape charges and failure to take appropriate measures regarding defendant\u2019s mental state and capacity to proceed, because: (1) defendant has failed to show how he was prejudiced when the charges had a transactional connection; and (2) there was insufficient evidence at trial of defendant\u2019s incompetency.\nAppeal by defendant from judgments entered 30 September 1999 by Judge Timothy S. Kincaid in Superior Court, Alexander County. Heard in the Court of Appeals 23 May 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Sarah Ann Lannom, for the State.\nHomesley, Jones, Gaines, Homesley & Dudley, by L. Ragan Dudley, for the defendant-appellant." }, "file_name": "0119-01", "first_page_order": 149, "last_page_order": 157 }