in the Court of Appeals 27 February 2019.
by defendant from judgments entered 23 February 2018 by Judge
Michael D. Duncan in Wilkes County Superior Court Nos. 13 CRS
52517, 52535; 17 CRS 213-19.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Lauren M. Clemmons, for the State.
Hayes for defendant-appellant.
Daryl Bauguss ("defendant") appeals from judgments
entered on his convictions of failing to register a sex
offender online identifier, first-degree sexual exploitation
of a minor, two counts of attempted statutory sex offense of
a child, and five counts of statutory sexual offense of a
child. For the reasons stated herein, we find no error.
September 2016, a Wilkes County Grand Jury indicted defendant
for failure to register a sex offender online identifier and
first-degree sexual exploitation of a minor. On 15 May 2017,
the grand jury issued additional indictments for seven counts
of statutory sexual offense of a child.
matter came on for trial on 19 February 2018 in Wilkes County
Superior Court, the Honorable Michael D. Duncan presiding.
The State's evidence tended to show as follows.
July 2013, Wilkes County Sheriff's Deputy Nancy Graybeal
received a report of Facebook conversations between defendant
and A.M. that indicated possible child sex abuse.
Defendant was a registered sex offender at the time, based on
a previous conviction for taking indecent liberties with a
child. As a registered sex offender, defendant was prohibited
from using social media websites and was required to report
any online identifiers, including screen names, to the
sheriff of his county of residence. However, defendant did
not register the screen name he used to carry out these
Facebook conversations with A.M., "Rod Love[.]"
was arrested at A.M.'s house on 29 July 2013. Detective
Graybeal interviewed A.M. on the front porch. A.M. admitted
to communicating with defendant on Facebook and sharing
photos of her daughter with him. She also admitted to
recording a video of her daughter, "Dee," who was
six years old at the time of defendant's arrest.
went to the police station, where she underwent another
interview, and allowed officers to look through her cell
phone. Nude photos of Dee were stored on the phone, as well
as two videos depicting A.M. performing sexual acts on her
daughter. A.M. admitted to having performed oral sex on Dee
three times and to having touched Dee's vagina four
times. She also admitted to sending the photos and at least
one video to defendant, some at his request. She explained
that she sent these photos and videos, and worked to
facilitate sexual interactions between defendant and her
daughter to "bait" defendant into a relationship
was also interviewed at the police station. He admitted to
using the screen name "Rod Love" on Facebook in
2013, and also admitted to receiving and requesting nude
images and videos of Dee from A.M. Defendant stated that he
believed A.M. agreed to sexually abuse her daughter and
facilitate sexual interactions with defendant because A.M.
was "in love" with him, and thought the pictures
and videos of Dee would induce a relationship between them.
State introduced records of Facebook conversations between
defendant and A.M. at trial, which tend to show A.M. and
defendant had an ongoing agreement and plan for A.M. to teach
Dee to be sexually active so that defendant could perform
sexual acts with her. The State also introduced the images
and videos of Dee that were extracted from defendant's
made a general motion to dismiss all charges at the close of
the State's evidence. The trial court denied the motion.
Defendant presented no evidence, and made a motion for a
directed verdict. The trial court considered this motion as a
renewed motion to dismiss, which the trial court denied.
jury was instructed on attempted sexual offense with a child,
sexual offense with a child under a theory of aiding and
abetting, failing to comply with the sex offender
registration law, and first-degree, second-degree, and
third-degree sexual exploitation of a minor. The jury
returned verdicts of guilty for all charges.
trial court sentenced defendant to consecutive terms of 317
to 441 months of imprisonment for each of the five statutory
sexual offense charges. Defendant was also sentenced to 207
to 309 months of imprisonment for one count of attempted
statutory sexual offense to be served consecutively. The
remaining offenses were consolidated into a consecutive
sentence of 207 to 309 months imprisonment.
argues the trial court erred by denying his motion to dismiss
the two attempted sexual offense charges and by denying his
motion to dismiss the five statutory sexual offense charges.
"Court reviews the trial court's denial of a motion
to dismiss de novo." State v. Smith,
186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation
omitted). "Upon defendant's motion for dismissal,
the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of
defendant's being the perpetrator of such offense. If so,
the motion is properly denied." State v.
Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455
(citation and internal quotation marks omitted), cert.
denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
Substantial evidence exists if there "is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion." State v. Smith, 300 N.C.
71, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted).
making its determination, the trial court must consider all
evidence admitted, whether competent or incompetent, in the
light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any
contradictions in its favor." State v. Rose,
339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert.
denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995).
Attempted Sexual Offenses
person is guilty of sexual offense with a child if the person
is at least 18 years of age and engages in a sexual act with
a victim who is a child under the age of 13 years." N.C.
Gen. Stat. § 14-27.4A(a) (2013)." 'Sexual act'
means cunnilingus, fellatio, analingus, or anal intercourse,
but does not include vaginal intercourse. Sexual act also
means the penetration, however slight, by any object into the
genital or anal opening of another person's body. . .
." N.C. Gen. Stat. § 14-27.1(4)
establish the elements of attempted statutory sexual offense,
the State must offer substantial evidence of: "(1) the
intent to commit the substantive offense, and (2) an overt
act done for that purpose which goes beyond mere preparation,
but (3) falls short of the completed offense." State
v. Sines, 158 N.C.App. 79, 85, 579 S.E.2d 895, 899
(citation and internal quotation marks omitted), cert.
denied, 357 N.C. 468, 587 S.E.2d 69 (2003). The intent
required for attempted statutory sexual offense is the intent
to engage in a sexual act. Id. at 86, 579 S.E.2d at
was convicted on two counts of attempted sexual offense: (1)
17 CRS 213, described on the verdict sheet as "Attempted
Statutory Sex Offense of a Child by an Adult in the
truck/car[, ]" and (2) 17 CRS 214, described on the
verdict sheet as "Attempted Statutory Sex Offense of a
Child by an Adult in [A.M.'s House.]" Defendant
argues the evidence at trial was insufficient to provide
substantial evidence of either attempted statutory sexual
offense because insufficient evidence was presented of: (1)
his intent to engage in a sexual act with Dee, or (2) of an
overt act in furtherance of that intention. We disagree.
In Defendant's Truck/Car
we address the 17 CRS 213, attempted statutory sexual offense
of a child "in the truck/car[.]" At trial, A.M.
testified about a time that defendant drove her and Dee to
pick up medication for her husband. Dee sat between defendant
and A.M. Defendant "tried to put his hands" up
Dee's skirt "between her legs." Dee pushed
defendant's hand away and crawled closer to her mother.
A.M. stated she was not going to make Dee "do
anything." After Dee's rebuff, defendant appeared
argues that his attempt to put his hands between Dee's
legs "does not provide any rational basis" to infer
defendant intended to perform a sexual act. Defendant asserts
that because he was driving a vehicle, "an inference of
cunnilingus would make no sense at all" and "no
evidence exists to support an inference" defendant
intended any type of penetrative contact, especially
considering the fact Dee was wearing underwear. We disagree.
intent required for attempted statutory sexual offense is the
intent to engage in a sexual act." Sines, 158
N.C.App. at 86, 579 S.E.2d at 900. "Intent is an
attitude or emotion of the mind and is seldom, if ever,
susceptible of proof by direct evidence, it must ordinarily
be proven by circumstantial evidence, i.e., by facts
and circumstances from which it may be inferred."
State v. Robinson, 310 N.C. 530, 535, 313 S.E.2d
571, 575 (1984) (quoting State v. Gammons, 260 N.C.
753, 756, 133 S.E.2d 649, 651 (1963)).
specific date defendant attempted to put his hand up
Dee's skirt is unknown, but Facebook messages tend to
show it occurred on or prior to 19 July 2013. Messages
between A.M. and defendant on that date indicate defendant
was upset. A.M. told defendant that Dee loved him "to
death. She just [was not] used to the other stuff[.]"
images extracted from defendant's cell phone, two videos
and one or two images were taken prior to 19 July 2013. A
video of Dee dancing while clothed was taken on 7 July 2013.
A video of Dee nude in the bathtub, washing her hair, was
created on 15 July 2013. A clothed image of Dee on her front
porch was taken on 16 July 2013. A nude photo of Dee in the
bathtub was also recovered, but investigators were unable to
determine when it was made. Defendant admitted during his
interview with police that he had become aroused by this
of a sexual nature involving Dee occurred between defendant
and A.M. on 9 July 2013. A.M. told defendant she would
"suck" him, and defendant stated she should
"run that by [Dee]" to make sure A.M. could hold
his hand, though A.M. indicated Dee would not be involved in
that activity. Messages of a sexual nature were also sent on
15 July 2013, including defendant's inquiries about
sexual acts between A.M. and Dee, and a request for explicit
pictures of Dee. A.M. asked defendant to come over and play
cards at her house on 15 July 2013, and he stated he needed
"to get some money 1st" so A.M. would not be
"mad" that he wanted to see Dee.
conversation on 19 July 2013, A.M. asked defendant if he
loved "all the ones [he] played around with" or if
he had "feelings for one more then [sic] the
others." He replied, "its just something about
[Dee], idk [I don't know][.]" At trial, A.M.
testified defendant had expressed his desire to "try
something" sexual with Dee. In his interview with law
enforcement, defendant stated he would not have engaged in
intercourse with Dee, but would have "play[ed]"
with her vagina by licking and rubbing it.
evidence, viewed in the light most favorable to the State,
supports a reasonable inference defendant attempted to engage
in a sexual act with Dee, as defined in the statute, when he
placed his hand between her legs and tried to put his hand up
her skirt. The evidence also supports a conclusion that
defendant's act of trying to reach up her skirt is an
overt act that exceeded mere preparation. We find no error in
the trial court's denial of defendant's motion to
dismiss this charge for insufficiency of the evidence.