State v. Bauguss , 265 N.C. App. 33 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-795
Filed: 16 April 2019
Wilkes County, Nos. 13 CRS 52517, 52535; 17 CRS 213-19
STATE OF NORTH CAROLINA
v.
ROBERT DARYL BAUGUSS
Appeal by defendant from judgments entered 23 February 2018 by Judge
Michael D. Duncan in Wilkes County Superior Court. Heard in the Court of Appeals
27 February 2019.
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
STATE V. BAUGUSS
Opinion of the Court
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
1 Pseudonyms and initials are used throughout this opinion to protect the identity of the
juvenile.
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Opinion of the Court
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
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Opinion of the Court
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.
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Opinion of the Court
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
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Opinion of the Court
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
2 This statute is recodified as N.C. Gen. Stat. § 14-27.28 by S.L. 2015-181, § 10(a), effective
1 December 2015.
3 This statute is recodified as N.C. Gen. Stat. § 14-27.20 by S.L. 2015-181, § 2, effective
1 December 2015.
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STATE V. BAUGUSS
Opinion of the Court
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
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Opinion of the Court
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
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STATE V. BAUGUSS
Opinion of the Court
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 A.M.’s House
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STATE V. BAUGUSS
Opinion of the Court
The other incident of attempted sexual offense occurred on 27 July 2013, when
defendant instructed A.M. to have Dee wear a dress without wearing underwear
because he was coming over to visit. Defendant argues the evidence was insufficient
to provide substantial evidence of 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. Taking the
evidence in the light most favorable to the State, the evidence tends to show
defendant had the intent to engage in a sexual act against Dee, and committed an
overt act that would have aided the commission of a statutory sexual offense against
the victim.
First, there was sufficient evidence of defendant’s intent to engage in a sex
offense against Dee. The State’s evidence tends 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. A.M. explained to law enforcement
that she participated in this scheme because she wanted to use defendant’s sexual
attraction for Dee to “bait” him into a relationship with her. Defendant admitted to
this scheme, and his awareness of A.M.’s intent to induce him into a relationship in
an interview with law enforcement.
Facebook messages from 30 May 2013 to 28 July 2013 were admitted into
evidence to support A.M.’s testimony, and also as evidence of defendant’s interest in
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STATE V. BAUGUSS
Opinion of the Court
committing a sexual offense against Dee. The messages show A.M. sent defendant
numerous photos and at least one video of Dee, including a video that showed A.M.
performing cunnilingus on Dee in her bedroom on 26 July 2013. The following
exchange then took place, on 27 July 2013, after defendant viewed the video:
[Defendant]: I want to do that sooooooooooooooo bad
[Defendant]: get a vid of her playing with it
[A.M.]: U got everything apparently lol
[Defendant]: yes
....
[Defendant]: I want it soooooooooooooooooooooo bad
[A.M.]: I’m trying to figure how to get her to
[Defendant]: fig it out soon plz
....
[A.M.]: I think if she watched a time or two she would join
in
[Defendant]: k
....
[Defendant]: I WANT HER [P****]
....
[Defendant]: will she put a dress on with out panies [sic]
[A.M.]: Sometimes
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STATE V. BAUGUSS
Opinion of the Court
[Defendant]: get her to do that today
[A.M.]: I will try. Why
[Defendant]: im [coming] up today
[A.M.]: Yay!!!!!!
[A.M.]: I will do my best but I don’t know if she will with
someone here
....
[A.M.]: What time u coming
[Defendant]: idk yet
[A.M.]: I know ur coming after everything we talked
about. . . .
Based on the context in which defendant instructed A.M. to have Dee wear a dress
without wearing underwear—because he was going to A.M.’s house to commit a sex
offense against Dee—we hold there is substantial evidence of defendant’s intent to
commit a sex offense against Dee. This intent is further evidenced by defendant’s
previous attempt to put his hand between Dee’s legs when she wore a skirt, and also
by defendant’s admission that he would have committed a sexual act against Dee if
given the opportunity.
In light of this intent, we turn to defendant’s assertion that there was
insufficient evidence of an overt act in furtherance of that intention.
Attempt requires an overt act which must be
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Opinion of the Court
adapted to, approximating, and which in the ordinary and
likely course of things would result in the commission
thereof. Therefore, the act must reach far enough towards
the accomplishment of the desired result to amount to the
commencement of the consummation. It must not be
merely preparatory. In other words, while it need not be
the last proximate act to the consummation of the offense
attempted to be perpetrated, it must approach sufficiently
near to it to stand either as the first or some subsequent
step in a direct movement towards the commission of the
offense after the preparations are made.
State v. Price, 280 N.C. 154, 158, 184 S.E.2d 866, 869 (1971) (citation omitted). In
State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996), our Supreme Court applied the
law as summarized by Price and held that the defendant’s “sneak approach to the
victim with the pistol drawn and the first attempt to shoot were each more than
enough to constitute an overt act toward armed robbery[.]” Id. at 668-69, 477 S.E.2d
at 922. Further, the court held the crime of attempted armed robbery could not be
abandoned, even though the defendant did not take the money, “[o]nce defendant
placed his hand on the pistol to withdraw it with the intent of shooting and robbing
[the victim][.]” Id. at 670, 477 S.E.2d at 922.
Here, defendant clearly intended to commit a sexual offense against Dee, and
took overt actions towards that end. A.M. admitted that she and defendant planned
to train Dee for sexual acts with defendant, and defendant’s Facebook messages to
A.M. and his interview with law enforcement demonstrate that he agreed to,
encouraged, and participated in this plan. In light of this context, defendant’s
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Opinion of the Court
instruction to dress Dee without panties was more than “mere words” because it was
a step in defendant’s scheme to “groom” Dee for sexual activity.
Although defendant did not make it to A.M.’s house the day that he gave the
instruction, he sent Facebook messages assuring A.M. he would arrive the next day
“around 5 or 6” and again agreeing to commit a sexual offense against Dee. When
defendant arrived at A.M.’s house in accordance with the plan, he was met by law
enforcement and arrested.
The Facebook messages and A.M.’s testimony show that, at the time defendant
traveled to A.M. and Dee’s home and was arrested, Dee had been sexually assaulted
by her mother multiple times to groom her for sexual activity with defendant, and
defendant had also tried to put his hand between her legs as a part of this process.
Dee had also been the victim of numerous explicit photographs and videos as a part
of the scheme to “groom” her. From this evidence, a jury could reasonably conclude
defendant traveled to A.M.’s house to commit a sexual act in support of his stated
intent, and had taken multiple steps to groom the victim, facilitating his ability to
carry out the crime.
Our Court’s holding in State v. Key, 180 N.C. App. 286, 636 S.E.2d 816 (2006),
disc. rev. denied, 361 N.C. 433, 649 S.E.2d 399 (2007) supports this result. In Key,
our Court held there was substantial evidence of an overt act towards the crime of
second-degree burglary where there was clear intent to commit the crime and the
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Opinion of the Court
evidence tended to show the defendant went to the victim’s home and “stood up on
the door sill—and not merely on the porch—for thirty to sixty seconds.” Id. at 293,
636 S.E.2d at 822. By going to the home and standing on the door sill, defendant took
an overt step towards accomplishing his intent. Id. Similarly, here, defendant’s act
of traveling to A.M.’s home constitutes substantial evidence of an overt act towards
accomplishing his clear intent to commit a sex offense against Dee. Thus, we disagree
with the dissent’s conclusion that the evidence only tends to show defendant took
preparatory steps that are insufficient to establish an overt act.
The dissent cites State v. Walker, 139 N.C. App. 512, 518, 533 S.E.2d 858, 861
(2000) to support its argument that there was insufficient evidence of an overt act.
However, Walker is inapposite to the facts before us. In Walker, the defendant
attacked a victim he had never met in a bathroom, throwing her to the ground. Id.
at 514, 533 S.E.2d at 859. The defendant laid on top of her, tried to cover her mouth,
and struck her. Id. He said “shut up bitch” and told her to roll onto her stomach. Id.
He also touched her side. Id. at 515, 533 S.E.2d at 859. She began to scream, and
the defendant eventually ran away. Id. The Court held that from this evidence there
was insufficient evidence that defendant manifested “a sexual motivation for his
attack.” Id. at 518, 533 S.E.2d at 861 (emphasis added). Thus, the issue in that case
was decided based on the defendant’s intent, which an overt act did not demonstrate,
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Opinion of the Court
and is not controlling here, where defendant’s intent to commit a sexual offense was
clear.
Here, as in Key, defendant took extensive preparatory steps that demonstrate
his intent to commit a sexual offense. Then, by instructing A.M. to have Dee wear a
dress without wearing underwear because he was coming over to visit, and going to
A.M.’s house in accordance with the plan decided over Facebook messages, he
performed an overt act towards accomplishing this end. Therefore, the trial court did
not err by denying defendant’s motion to dismiss this attempt offense.
B. Statutory Sexual Offenses
Defendant was found guilty of five counts of statutory sexual offense of a child
by an adult, identified as “inside the bathtub[,]” “outside the bathtub[,]” “performing
oral sex in the bedroom[,]” “digital penetration in the bedroom[,]” and “digital
penetration in the living room” for aiding and abetting the sexual offenses A.M.
committed against Dee. Defendant argues the trial court erred in denying his motion
to dismiss these charges because the evidence did not show he encouraged or
instructed A.M. to perform cunnilingus or digitally penetrate Dee, or that any
statement caused her to perform sexual acts on Dee. We disagree.
Defendant appears to assert his Facebook conversations with A.M. were
“fantasies,” but argues that even if they were taken at face-value, they were “devoid
of any instruction or encouragement” to A.M. to specifically perform sexual acts, i.e.
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Opinion of the Court
cunnilingus or penetration of Dee’s vagina. However, defendant is mistaken that
such explicit instruction is required.
In order to find a defendant guilty of a crime under the theory of aiding and
abetting, the State must produce evidence tending to show:
(1) that the crime was committed by another; (2) that the
defendant knowingly advised, instigated, encouraged,
procured, or aided the other person; and (3) that the
defendant’s actions or statements caused or contributed to
the commission of the crime by the other person.
State v. Dick, 370 N.C. 305, 311, 807 S.E.2d 545, 549 (2017) (quoting State v. Francis,
341 N.C. 156, 459 S.E.2d 269 (1995)).
The defendant need not be present at the scene of the crime, id. at 310, 807
S.E.2d at 548-49, nor “expressly vocalize [his] assent to the criminal conduct.” State
v. Marion, 233 N.C. App. 195, 204, 756 S.E.2d 61, 68, disc. rev. denied, 376 N.C. 520,
762 S.E.2d 444 (2014) (citation omitted). “Communication of intent to the perpetrator
may be inferred from the defendant’s actions and from his relation to the
perpetrator.” State v. Allen, 127 N.C. App. 182, 185, 488 S.E.2d 294, 296 (1997)
(citation omitted).
The record is replete with evidence of the relationship between defendant and
A.M. A.M. repeatedly stated she considered defendant to be her friend. Defendant
knew A.M. wanted a more significant relationship with him, and believed she was
using Dee as bait to try to initiate a sexual relationship between them. Numerous
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Opinion of the Court
messages between defendant and A.M. support a reasonable inference of a plan
between them to engage in sexual acts with Dee.
At trial, A.M. stated she had described the sexual acts she had performed on
Dee to defendant because he had told her he liked to hear about them. Defendant
argues this description of sexual acts after the fact are insufficient to support a
finding defendant knew of or about these acts prior to their occurrence, a requirement
for aiding and abetting. However, the record supports an inference that defendant
encouraged A.M. to perform such acts on Dee.
As early as 15 July 2013, defendant had received nude photos of Dee and a
promise by A.M. to send more nude photos of Dee. Defendant specified he wanted
the photos to be as “close as u can and as wide open as u can[.]” Defendant also
initiated the idea of sexual “play” between A.M. and Dee. He told A.M. he believed
Dee “want[ed] to.” That day, A.M. made a video of Dee while she was nude in the
bathtub.
Ten days later on 25 July 2013, messages indicate A.M. “had fun” the previous
day, but on that day “she[,]” which was likely Dee, was “being stubbern [sic]” and
“only wants to in the bath.” On 26 July 2013, defendant asked A.M. if she had “been
lickin.” A.M. replied no, but she had “rubbed a little yesterday evening.” Later that
day, A.M. made a video of her performing cunnilingus on Dee in her bedroom, and
sent it to defendant. Defendant replied later he wanted “to do that sooooooooooooooo
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Opinion of the Court
bad.” He then requested a video of Dee “playing with it[.]” A.M. made a video on
29 July 2013 of her rubbing Dee’s vagina while Dee was on the couch.
Defendant cites to statements made by A.M. in her initial recorded interview,
which was not included in the record on appeal. He argues these statements support
his assertion that A.M. initiated the sexual abuse of her daughter and acted on her
own, and that defendant had no prior knowledge of the sexual acts. However, at trial,
A.M. admitted to lying to the police during her initial interview in order to keep
defendant from getting in trouble. The jury heard A.M.’s pretrial interview, along
with all other evidence. It was their duty to weigh and resolve any conflicting
evidence. See State v. Griffin, 18 N.C. App. 14, 16, 195 S.E.2d 569, 570 (1973) (“It is
the duty of the jury to weigh and analyze the evidence and to determine whether that
evidence shows guilt beyond a reasonable doubt.”) (citation and internal quotation
marks omitted).
Giving the State the benefit of all reasonable inferences, substantial evidence
was presented to support a conclusion defendant aided and abetted in A.M.’s five
sexual offenses against Dee. We find no error in the trial court’s denial of defendant’s
motion to dismiss the five charges of sexual offense.
III. Conclusion
For the forgoing reasons, the trial court did not err.
NO ERROR.
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Opinion of the Court
Judge STROUD concurs.
Judge TYSON concurs in part and respectfully dissents in part by separate
opinion.
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No. COA18-795 – State v. Bauguss
TYSON, Judge, concurring in part and dissenting in part.
The majority’s opinion finds no error in the trial court’s denial of all of
defendant’s motions to dismiss. I agree defendant has failed to show prejudicial
errors in the trial court’s denial of the motion to dismiss the five charges of sexual
offense or in the denial of defendant’s motion to dismiss the attempted sexual offense,
which occurred inside defendant’s vehicle. I disagree with the majority opinion’s
conclusion to uphold the trial court’s ruling that the State presented substantial
evidence of any overt act by the defendant to support the separate, purported
attempted sexual offense against Dee while inside of A.M.’s house. I concur in part
and respectfully dissent in part.
A person is guilty of a statutory sexual offense if the perpetrator is at least
eighteen years old and engages in a sexual act with a victim under the age of thirteen.
N.C. Gen. Stat. § 14-27.4A (2013). In the statute, a “sexual act” excludes vaginal
intercourse, but includes “cunnilingus, fellatio, analingus, or anal intercourse” and
“penetration, however slight, by any object into the genital or anal opening of another
person’s body.” State v. Minyard, 231 N.C. App. 605, 616, 753 S.E.2d 176, 185 (2014)
(citation omitted).
“The elements of an attempt to commit any crime are: (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. Miller, 344
N.C. 658, 667, 477 S.E.2d 915, 921 (1996) (citations omitted).
STATE V. BAUGUSS
TYSON, J., concurring in part and dissenting in part
Defendant does not dispute his or Dee’s age, but argues insufficient evidence
was presented of either his purported intent to engage in sexual acts with Dee or of
any purported overt act in furtherance of that intention. Defendant was convicted on
two counts of attempted sexual offense, based upon two specific and unrelated
instances.
The first incident, which we all agree the State presented substantial evidence
of an attempt, was defendant’s attempt to put his hand up Dee’s skirt while they were
inside his vehicle with her mother on or about 19 July 2013. The second incident of
attempted sexual offense purportedly occurred between 27 July 2013 and 29 July
2013. Defendant had requested of Dee’s mother, A.M., on 27 July 2013 to have Dee
wear a dress without wearing underwear, because he was planning to visit. Though
he did not come over that day or the next day, defendant arrived at A.M.’s house on
29 July 2013, where he was arrested. Contrary to the majority’s opinion, our
precedents support neither defendant’s request of A.M. nor his arrival at her house
to constitute an overt act to meet the elements of the attempted sexual offense.
An unlawful attempt requires an overt act which must be
adapted to, approximating, and which in the ordinary and
likely course of things would result in the commission
thereof. Therefore, the act must reach far enough towards
the accomplishment of the desired result to amount to the
commencement of the consummation. It must not be
merely preparatory.
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State v. Price, 280 N.C. 154, 158, 184 S.E.2d 866, 869 (1971) (citation omitted). In
cases involving other offenses, “mere words” or mere preparation have not been
adequate to support a conviction for attempt.
In State v. Daniel, the jury was instructed that if the defendant had “cursed”
the victim, “and ordered him to come to him, and [the victim] obeyed through fear,
the defendant was guilty of an assault.” 136 N.C. 571, 573, 48 S.E. 544, 544 (1904).
Our Supreme Court held that “[m]ere words, however insulting or abusive, will not
constitute an assault,” but “[w]here an unequivocal purpose of violence is
accompanied by any act which, if not stopped or diverted, will be followed by personal
injury, the execution of the purpose is then begun and there has been a sufficient offer
or attempt.” Id. at 574, 48 S.E. at 545.
In attempted robbery with a dangerous weapon cases, words accompanied by
the defendant’s drawing out a firearm was held enough to show both intent to commit
robbery and an overt act in furtherance thereof. See, e.g., State v. Davis, 340 N.C. 1,
13, 455 S.E.2d 627, 633 (1995) (“defendants drew their pistols, and [one] told the
victim, ‘Buddy, don't even try it.’ Such actions have been held to be sufficient evidence
of attempted armed robbery even without a demand for money or property”); State v.
Taylor, 362 N.C. 514, 539, 669 S.E.2d 239, 261 (2008) (the defendant approached the
victim “from behind, pointed a gun at him, and indicated he should ‘stay still’ and
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TYSON, J., concurring in part and dissenting in part
empty his pockets. These words and actions are evidence of both defendant’s intent
to rob . . . and an ‘overt act calculated to bring about’ that result.” (citation omitted)).
Drawing a gun on a victim, along with some type of statement is enough “in
the ordinary and likely course of things [to] result in the commission” of robbery. See
Price, 280 N.C. at 158, 184 S.E.2d at 869. Conversely, defendant’s request to Dee’s
mother is more analogous to the “mere words” used in the cases cited above, and is
easily distinguished from defendant’s attempt inside his vehicle, which we all agree
sustains that separate conviction, but which cannot be used to “bootstrap” an overt
act for the other attempt conviction.
The facts of State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996), cited in the
majority’s opinion, are consistent with the aforementioned attempted robbery cases
where words plus the drawing of a gun were enough to constitute an overt act.
However, in this instance, defendant’s message to A.M. requesting her to have Dee
wear a dress without her wearing underwear does not rise to the level of an overt act.
Further, no evidence tends to show if A.M. had dressed Dee as defendant had
requested when he arrived and was arrested at her home two days later. Viewed in
the light most favorable to the State and consistent with precedents, these words are
best described as merely preparatory. See Price, 280 N.C. at 158, 184 S.E.2d at 869.
The majority’s opinion also asserts defendant’s travel to A.M.’s house on the
day of his arrest was an overt act to support an unlawful attempt to commit a sexual
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TYSON, J., concurring in part and dissenting in part
act on Dee that day. Defendant’s going over to A.M.’s house two days after his text
request did not “amount to the commencement of the consummation [of a sexual act].
It [was] merely preparatory.” Price, 280 N.C. at 158, 184 S.E.2d at 869. I respectfully
disagree this action was an overt act to support this conviction.
After extensive review of the precedents and controlling case law, no attempted
sexual offense case exists where an overt act to support the charge was not identified.
In a case alleging an attempted first-degree rape, this Court found no overt act
occurred to support the conviction for attempt, even though the defendant therein,
attacked a woman inside a public bathroom, demanded that she roll onto her
stomach, and touched her side with his hand. State v. Walker, 139 N.C. App. 512, 518,
533 S.E.2d 858, 861 (2000). Though this Court found the attack was vicious, “there
was insufficient evidence that defendant manifested, by an overt act, a sexual
motivation for his attack on the victim.” Id. Because a conviction for an attempt can
only be sustained through substantial evidence of intent and an overt act, mere words
or defendant’s preparation alone is not an overt act to support this conviction for
attempt. See id.
Conversely, and consistent with the other attempt conviction before us, which
we affirm, the overt acts identified in attempted sexual offense cases clearly would
have led to the completion of the sexual offense. See, e.g., Minyard, 231 N.C. App. at
618, 753 S.E.2d at 186 (finding an overt act where the defendant placed his penis on
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TYSON, J., concurring in part and dissenting in part
the victim’s buttocks); State v. Henderson, 182 N.C. App. 406, 412-13, 642 S.E.2d 509,
513 (2007) (finding an overt act where the defendant removed his pants, walked into
the room where his daughter was, stood in front of her, and requested that she put
his penis in her mouth); State v. Buff, 170 N.C. App. 374, 380, 612 S.E.2d 366, 371
(2005) (finding “several overt acts” occurred where the defendant had touched the
victim’s breast and vaginal area).
The majority’s opinion points to other instances where Dee had previously been
victimized as a result of the plan between defendant and A.M. to “groom” Dee for
sexual acts. While these other instances may support the other crimes for which
defendant was convicted, they cannot be applied to the particular offense of the
purported attempted sexual act in A.M.’s house on the date of defendant’s arrest two
days after he made his request to her mother for her to dress Dee in a certain manner.
See State v. Shue, 163 N.C. App. 58, 62, 592 S.E.2d 233, 236 (2004) (evidence of taking
indecent liberties with one brother cannot be used to show an attempt to commit
indecent liberties with the other brother, even though the defendant entered the
bathroom stall with the child, fixed the lock, grabbed the child’s arm, and then exited
the stall).
The majority’s opinion also cites State v. Key to support its assertion that
defendant’s mere presence at A.M.’s house, alone, was an overt act. Key involved
charges of, inter alia, first-degree rape and attempted second-degree burglary. 180
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TYSON, J., concurring in part and dissenting in part
N.C. App. 286, 288, 636 S.E.2d 816, 819 (2006). The majority’s opinion cites to the
discussion in the case concerning the attempted burglary. A defendant standing in
the doorway of a home may constitute an overt act for an attempted burglary
conviction, but such an action is inapplicable to, and does not support a conviction
for, an attempted sexual offense or the particular facts of this case.
The “elements of second-degree burglary are: (1) the breaking (2) and entering
(3) in the nighttime (4) into a dwelling house or sleeping apartment (5) of another (6)
with the intent to commit a felony therein.” Id. at 292, 636 S.E.2d at 821 (quoting
State v. Rick, 342 N.C. 91, 101, 463 S.E.2d 182, 188 (1995)). This Court found a
defendant standing in the doorway of a house is evidence of his intent to commit a
burglary, where he would have to break and enter another’s house. Key, 180 N.C.
App. at 293, 636 S.E.2d at 822. This Court also found this action was an overt act,
beyond mere preparation, to commit a burglary. Id. However, such behavior is
inapplicable to support the conviction of an attempted sexual offense, because
breaking and entry into a dwelling is not an element of the statutory sexual offense.
See Minyard, 231 N.C. App. at 616, 753 S.E.2d at 185.
The majority’s opinion also purports to distinguish the facts and holding in
State v. Walker, by asserting that case was decided based on the defendant’s intent,
which was not demonstrated by an overt act. 139 N.C. App. at 518, 533 S.E.2d at 861.
However, intent is often proved through a finding of an overt act. See Key, 180 N.C.
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TYSON, J., concurring in part and dissenting in part
App. at 293, 636 S.E.2d at 822. Intent, standing alone without an overt act, is not an
attempt.
Evidence of an overt act is required to support an attempt conviction because
“without it there is too much uncertainty as to what the [defendant’s] intent actually
was.” State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 616 (1984) (citation omitted).
While we may agree defendant may have planned and intended to perform sexual
acts on Dee at some point, the State’s evidence is insufficient to prove he intended
and attempted to do so on the day he was arrested.
Defendant came over to A.M.’s house two days after had he made his request
to A.M. to dress Dee in a specific manner. No evidence was presented concerning how
Dee was dressed the day defendant was arrested or showing defendant had or
attempted any contact with her. Intent, often proven through overt acts, must
correlate to “the time of the offense at issue.” See Shue, 163 N.C. App. at 62, 592
S.E.2d at 236.
The State failed to present any substantial evidence of an overt act to support
the conviction that defendant attempted to commit a sexual offense on Dee in A.M.’s
house. I disagree with the conclusion of no error in the trial court’s denial of
defendant’s motion to dismiss this attempt charge. This conviction should be
reversed and the case remanded for resentencing. I concur in the majority’s opinion’s
holding of no error for the defendant’s other convictions, but respectfully dissent from
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TYSON, J., concurring in part and dissenting in part
the conclusion of no error in the defendant’s conviction of an attempted sexual offense
at A.M.’s house.
9