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State v. Bauguss

Court of Appeals of North Carolina

April 16, 2019

STATE OF NORTH CAROLINA
v.
ROBERT DARYL BAUGUSS

          Heard in the Court of Appeals 27 February 2019.

          Appeal 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.

          Mark Hayes for defendant-appellant.

          ARROWOOD, JUDGE.

         Robert 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.

         I. Background

         On 6 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.

         The 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.

         On 29 July 2013, Wilkes County Sheriff's Deputy Nancy Graybeal received a report of Facebook conversations between defendant and A.M.[1] 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[.]"

         Defendant 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.

         A.M. 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 with her.

         Defendant 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.

         The 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 phone.

         Defendant 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.

         The 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.

         The 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.

         Defendant appeals.

         II. Discussion

         Defendant 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.

         Our "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).

         "In 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).

         A. Attempted Sexual Offenses

         "A 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).[2]" '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) (2013).[3]

         To 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 900.

         Defendant 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.

         1. In Defendant's Truck/Car

         First, 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 "aggravated."

         Defendant 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.

         "[T]he 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)).

         The 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[.]"

         Of the 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 photo.

         Conversations 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.

         In the 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.

         This 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.

         2. Inside ...


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