State v. Gray, 210 N.C. App. 493 (Apr. 5, 2011)

In a case in which the defendant was charged with committing a sexual offense and indecent liberties against a five-year-old female victim, the trial court committed prejudicial error by admitting evidence that the defendant had anal intercourse with a four-year-old male 18 years earlier. The evidence was admitted to show identity, intent, and common scheme or plan. Noting confusion in the N.C. cases, the court concluded that temporal proximity continues to be relevant to the issue of admissibility of 404(b) evidence; the court rejected the notion that temporal proximity goes only to weight of the evidence. Turning to admission of the evidence for purposes of identity, the court found the 18-year gap between the incidents significant. It rejected the State’s argument that the time period should be tolled during the defendant’s incarceration on grounds that the State failed to offer competent evidence as to the length of his incarceration. Although the incidents both involved very young children and occurred at a caretaker's house where the defendant was a frequent visitor, the nature of the alleged assaults was very different. In light of these differences and “the great length of time” between them, the State failed to show sufficient unusual facts present in both or particularly similar acts which would indicate that the same person committed both crimes. The court went on to reach similar conclusions as to admissibility for the purposes of intent and prior scheme or plan.