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State v. Wilson

Court of Appeals of North Carolina

January 15, 2019

STATE OF NORTH CAROLINA
v.
TIMOTHY LEVON WILSON

          Heard in the Court of Appeals 27 November 2018.

          Appeal by defendant from judgments entered 6 November 2017 by Judge Martin B. McGee in Union County Nos. 15 CRS 50112-16, 15 CRS 51542-43 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General John F. Oates, Jr., for the State.

          Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant.

          ZACHARY, JUDGE.

         Defendant Timothy Levon Wilson appeals from judgments entered upon jury verdicts finding him guilty of taking indecent liberties with a child, assault by strangulation, disseminating obscene material to a minor under 13 years of age, and first-degree statutory rape of a child under 13 years of age. Defendant argues that (1) the trial court erred in failing to dismiss the charge of disseminating obscene material to a minor due to insufficient evidence; (2) the trial court's jury instructions violated Defendant's constitutional right to a unanimous jury verdict; and (3) the trial court violated Defendant's state and federal constitutional rights when it denied his request to reopen the case upon changing his mind that he wished to testify. We conclude that there was no error.

         Background

         On 30 March 2015, Defendant was indicted for five counts of taking indecent liberties with a child, four counts of sex offense in a parental role, four counts of first-degree statutory rape of a child under 13, one count of disseminating obscenity to a minor under 13, and one count of assault by strangulation. Defendant was indicted for six additional counts of taking indecent liberties with a child on 1 June 2015.

         Six of Defendant's charges for taking indecent liberties with a child involved Defendant's older stepdaughter, Q.R., [1] who was born in August of 1998. However, Defendant's arguments on appeal only concern Defendant's conduct against his younger stepdaughter, Q.B.

         The evidence at trial showed that Defendant engaged in a pattern of sexual conduct with Q.B., who was born in May 2003. She was the youngest child in the home and was the first to arrive home from school each day. Q.B. would thereafter remain alone with Defendant until Q.R. and Defendant's son returned home from school, with Q.B.'s mother returning home much later. Most of the incidents for which Defendant was charged occurred during the weekdays when Q.B. was alone in the house with Defendant. Each of the acts was alleged to have occurred between 15 May 2011 and 1 January 2015.

         Q.B. testified that Defendant had touched her on her vagina "[m]ore than one time," but she was best able to remember the details of two particular incidents. During the first, Q.B. was in the master bedroom and Defendant had her sit "[o]n the edge of his bed" and "touched [her] vagina with his hands." Q.B. said that "[she] was scared, [and she] didn't know what to do." Q.B. also testified about an incident that occurred while she was in her bedroom. She was lying on the bottom bunk of her bed when Defendant came into her room wearing only his boxers, lay down next to her, and began inserting his fingers into her vagina.

         Q.B.'s testimony also revealed that Defendant had penetrated her vagina with his penis on multiple occasions. Several of those incidents occurred in the master bedroom. Q.B. recalled that on one occasion, she was alone in the house with Defendant after school. Defendant was naked, told Q.B. to take her clothes off, put Q.B. on his bed, and retrieved the "Blue Magic" hair grease from the bathroom. Defendant then "put [the] grease on his penis and he just- . . . he stuck it inside my vagina." Q.B. said that Defendant "stuck it in and out" "[m]ore than one time," until "he heard something" and stopped. Q.B. also testified in detail about a second incident that took place in the master bedroom, during which Defendant inserted his penis into Q.B.'s vagina after applying a different type of grease from a pink strawberry container. On another occasion, Q.B. said that one morning before school, Defendant "told me like go take a shower and it was like after. And then like I didn't have no clothes on because I went to go take a shower and then he just told me to go in his room and that's when he just stuck his penis in my vagina." Q.B. said that Defendant eventually stopped "[b]ecause my sister called my name."

         Additionally, Q.B. testified that Defendant had penetrated her vagina with his penis "[m]ore than one time" in the "kids' living room" of the house. On one of the occasions, she was lying on the floor watching television when Defendant "told [Q.B.] to take off [her] clothes and then he only had his boxers on." After Q.B. took her clothes off, Defendant "told [her] to lay back down and then he stuck his penis in [her] vagina." Defendant eventually got off of her because "[h]e was hearing noises."

         Similar incidents occurred "[m]ore than one time" in the "adult living room." On one of those occasions, Q.B. said that she was sitting on the couch and that Defendant came into the room in his boxers, "told [her] to take off [her] clothes[, ]" put hair grease on his penis, got "[o]n top of [her, ]" and put his penis "[i]n and out" of her vagina while still wearing his boxers. Q.B. said that she "was scared," and that "[i]t hurt." Q.B. testified about yet another particular incident of vaginal intercourse that took place in Defendant's son's bedroom.

         Lastly, Q.B. testified about an incident wherein Defendant was watching a nude sex scene in his bedroom and called her into the room to watch. Defendant was charged with disseminating obscenity to a minor under 13 years of age for that incident. Defendant moved to dismiss this charge due to insufficiency of the evidence, which the trial court denied.

         Defendant's indictments only alleged the general conduct underlying each charge. However, the jury verdict sheets indicated that Defendant's four counts each of sex offense in a parental role and first-degree statutory rape, along with four of his charges for taking indecent liberties, were based upon Defendant's alleged conduct of "engaging in vaginal intercourse" with Q.B. in four distinct locations: (1) "in the Defendant's bedroom"; (2) "in the 'kids' living room' "; (3) "in the 'adult's living room' "; and (4) "in [Defendant's son's] bedroom," respectively. The verdict sheets indicated that Defendant's fifth count of taking indecent liberties was for "touching [Q.B.'s] genitals with his hands." Six additional counts of taking indecent liberties were for conduct involving Q.R., two of which the State voluntarily dismissed.

         Defendant presented no evidence at trial, and the jury found Defendant guilty of all nineteen charges. The trial court arrested judgment on the four counts of sex offense in a parental role and four counts of taking indecent liberties with a child because they involved the same underlying conduct as the four counts of first-degree statutory rape, for which the jury had also found Defendant guilty. The trial court imposed consecutive sentences against Defendant, in all totaling 1, 510 to 2, 070 months' imprisonment. Defendant gave oral notice of appeal in open court.

         Motion to Dismiss

         Defendant first argues that the trial court erred in denying his motion to dismiss the charge of disseminating obscene material to a minor under 13 years of age because the State's evidence was insufficient to warrant the submission of that charge to the jury. In particular, Defendant contends that the State presented insufficient evidence to show that the material was "obscene material" within the meaning of the statute.

         The standard of review upon a defendant's motion to dismiss is well established:

When reviewing a defendant's motion to dismiss a charge on the basis of insufficiency of the evidence, this Court determines whether the State presented substantial evidence in support of each element of the charged offense. Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion. In this determination, all evidence is considered in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence. . . . Additionally, a substantial evidence inquiry examines the sufficiency of the evidence presented but not its weight, which is a matter for the jury.

State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012). When a defendant's motion to dismiss challenges "the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of [the] defendant's guilt may be drawn from the circumstances." State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965). If so, then the defendant's motion to dismiss must be denied in order "for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty." Id.

         In order to survive a motion to dismiss a charge of disseminating obscene material to a minor under N.C. Gen. Stat. § 14-190.8, the State must present substantial evidence to show (1) that the defendant is 18 years of age or older, and (2) that the defendant knowingly, (3) disseminated, (4) to a minor under the age of 13, (5) any material which the defendant knew or reasonably should have known to be obscene within the meaning of section 14-190.1. N.C. Gen. Stat. § 14-190.8 (2017); State v. Hill, 179 N.C.App. 1, 14, 632 S.E.2d 777, 785 (2006).

         Pursuant to N.C. Gen. Stat. § 14-190.1, material is considered to be "obscene" if:

(1)The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section [as, inter alia, vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted]; and
(2)The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and
(3)The material lacks serious literary, artistic, political, or scientific value; and
(4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.

          N.C. Gen. Stat. § 14-190.1(b) (2017); see also id. § 14-190.1(c)(1). Whether particular content is obscene is to "be judged with reference to ordinary adults." Id. § 14-190.1(d). Moreover, "[n]othing in section 14-190.1 requires the State to produce the precise material alleged to be obscene." State v. Mueller, 184 N.C.App. 553, 566, 647 S.E.2d 440, 450, cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007).

         In the instant case, Defendant's argument is premised primarily upon the fact that "contemporary community standards must take into account the fact that television regularly depicts couples having sex." Because "Q.B.'s description of what she saw[] also describes what can be seen on contemporary television"-particularly on premium cable channels such as Showtime, HBO, and FX that regularly depict "sexual activity and nudity"-Defendant argues that "the State failed to provide substantial evidence that what [Q.B.] saw was obscene according to contemporary standards." Defendant therefore argues that the trial court erred in denying his motion to dismiss the charge of disseminating obscenity to a minor. We disagree.

         Q.B. testified to the following circumstances regarding the alleged incident:

Q. [W]as there ever a time when the Defendant showed you any movies that ...

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