State v. Layseca ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-519
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Onslow County
No. 11 CRS 54158-60
12 CRS 1727-28
12 CRS 602
ULKER ALLEN LAYSECA
Appeal by Defendant from judgments entered 19 December 2012
by Judge Charles H. Henry in Onslow County Superior Court.
Heard in the Court of Appeals 21 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.
Parish & Cooke, by James R. Parish, for Defendant.
DILLON, Judge.
Ulker Allen Layseca (“Defendant”) appeals from judgments
entered consistent with jury verdicts convicting him of a total
of eighteen crimes; namely, six counts of indecent liberties
with a minor, six counts of statutory sex offense, three counts
of attempted statutory rape, and three counts of statutory rape,
and sentencing Defendant to 300 to 369 months incarceration in
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file numbers 12 CRS 1727-28, 192 to 240 months incarceration in
file number 11 CRS 54158, and 192 to 240 months incarceration in
file number 11 CRS 54159,1 to be served consecutively. All of
the crimes involved Defendant’s stepdaughter, Susan.2 On appeal,
Defendant challenges the trial court’s instruction to the jury
on attempted statutory rape, and the sufficiency of the evidence
for the charges of indecent liberties, statutory rape, and sex
offense. Defendant also contends his right to a unanimous jury
verdict was violated. We find no error.
I. Background
Susan was born in 1996. In June 2011, she informed her
mother that Defendant was having sex with her and had been
committing indecent acts with her since she was six or seven
years old.
On 13 November 2012, a grand jury found six true bills of
indictment charging numerous counts of indecent liberties,
statutory rape, and statutory sex offense. The indictments were
organized by date.
The first three indictments alleged various incidents
occurring in three distinct time periods between July 2009 and
1
Additional file numbers were listed under the “ADDITIONAL FILE
NO.(S) AND OFFENSE(S)” portion of the judgments.
2
A pseudonym.
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21 November 2010. Specifically, each of these three indictments
alleged one count of statutory sex offense and one count of
indecent liberties. Susan testified that she was the victim of
Defendant’s various indecent acts during the time periods
covered by these indictments.
The fourth, fifth and sixth indictments each alleged one
count of indecent liberties, two counts of statutory rape, and
one count of sex offense.
The fourth indictment alleged that the foregoing counts
occurred between 22 November 2010 and 31 January 2011.
Regarding this time period, Susan testified that in December of
2010, after she had turned 14 years old, Defendant started
putting her in her sister’s bed, facedown. “[Defendant] would
move [her] underwear to the side, and he would try to stick his
penis inside” her vagina. Defendant also rubbed his penis
against her vagina. Susan testified that he tried “to make it
go in, and it hurt.” Defendant told Susan that “it was only the
head going in.” He did this “[t]hree times a week.”
The fifth indictment alleged that the counts stated above
occurred between 1 February 2011 and 30 April 2011. Susan
testified that during this time period Defendant continued to
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have sex with her 2 or 3 times a week. She also testified that
she would try to stop him from putting his penis in her vagina.
The sixth indictment alleged that the counts stated above
occurred between 1 May 2011 and 8 June 2011. Regarding this
time period, Susan testified that Defendant continued to abuse
her 2 or 3 times per week and recounted two specific incidents
at which time Defendant penetrated her vagina.
At the conclusion of Defendant’s trial, the jury returned
eighteen guilty verdicts, as mentioned above. Consistent with
these jury verdicts, the trial court consolidated numerous
offenses into three separate judgments, sentencing Defendant to
three terms of incarceration to be served consecutively – 300 to
369 months, 192 to 240 months, and 192 to 240 months. From
these judgments, Defendant appeals.
I: Jury Instruction
Among the charges listed in the indictments, were numerous
counts of statutory rape, but Defendant was not charged with
attempted statutory rape. In Defendant’s first argument, he
contends the trial court erred by instructing the jury that
“they could consider attempted statutory rape as a permissible
verdict.” We dismiss this argument.
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Defendant did not object to the jury instructions in the
proceedings below. As a result of Defendant’s failure to object
at trial, this purported error has been waived. State v. Gibbs,
335 N.C. 1, 49, 436 S.E.2d 321, 349 (1993), cert. denied, 512
U.S. 1246, 129 L. Ed. 2d 881 (1994); see also N.C. R. App. P.
10(a)(1) and (a)(2). Although under Rule 10(a)(4), Defendant
could also have argued plain error before this Court, Defendant
makes no such argument. See N.C. R. App. P. 10(c)(4) (stating
that “[i]n criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by
rule or law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error”). See State v. Scercy, 159 N.C. App. 344, 583
S.E.2d 339, disc. review denied, 357 N.C. 581, 589 S.E.2d 363
(2003) (holding that a defendant is not entitled to plain error
review because he failed to argue in his brief that certain jury
instructions, not objected to at trial, amounted to plain
error). Therefore, Defendant’s first argument is dismissed.
II: Motion to Dismiss
In Defendant’s second argument, he contends the trial court
erred by denying Defendant’s motion to dismiss the charges of
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indecent liberties, statutory rape, and sex offense. We dismiss
this argument.
Defendant’s brief on appeal contains an argument heading
`contending the trial court erred in failing to dismiss the
charges of indecent liberties, statutory rape, and sex offense,
due to insufficiency of the evidence. The brief also contains
the standard of review. However, Defendant does not further
provide any argument for the foregoing issue on appeal.
Defendant does not contend any or all of the elements of the
foregoing crimes lacked sufficient evidence; in fact, Defendant
does not even recite the elements of the crimes, much less
provide analogous cases on similar facts in which motions to
dismiss were improperly denied. “Issues not presented in a
party’s brief, or in support of which no reason or argument is
stated, will be taken as abandoned.” N.C. R. App. P. 28(b)(6).
Because Defendant has failed to state any argument or reason for
his argument that the trial court improperly denied his motion
to dismiss, he has abandoned this argument, and we dismiss it.
III: Unanimous Verdicts
In Defendant’s third and final argument, he contends the
trial court deprived Defendant of his constitutional right to
unanimous jury verdicts by failing to sufficiently distinguish
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the multiple sexual offenses by date or detail in the
indictments, jury instructions, and verdict sheets. We
disagree.
Preliminarily, we note that the failure to object to
alleged errors by the trial court that violate a defendant’s
right to a unanimous verdict does not waive his right to raise
the question on appeal. State v. Ashe, 314 N.C. 28, 39, 331
S.E.2d 652, 659 (1985). Therefore, Defendant’s failure to
object in this case does not waive this argument on appeal.
The North Carolina Constitution and North Carolina Statutes
require a unanimous jury verdict in a criminal jury trial. See
N.C. Const. art. 1, § 24; N.C. Gen. Stat. § 15A-1237(b) (2005).
“To convict a defendant, the jurors must unanimously agree that
the State has proven beyond a reasonable doubt each and every
essential element of the crime charged.” State v. Jordan, 305
N.C. 274, 279, 287 S.E.2d 827, 831 (1982). Our determination of
whether the trial court’s instructions to the jury violate the
right to a unanimous verdict requires us to “examine the
verdict, the charge, the jury instructions, and the evidence to
determine whether any ambiguity as to unanimity has been
removed.” State v. Petty, 132 N.C. App. 453, 461-62, 512 S.E.2d
428, 434, disc. review denied, 350 N.C. 598, 537 S.E.2d 490
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(1999). The specificity of the allegations contained in the
indictments must also be considered in this determination.
State v. Lawrence, 360 N.C. 368, 373, 627 S.E.2d 609, 612
(2006).
On appeal, Defendant admits that “there is no issue as to
unanimity” with the first three indictments in this case.
However, Defendant contends the remaining three indictments – in
file numbers 11 CRS 54158, 11 CRS 54159, and 11 CRS 54160 –
abridge Defendant’s right to a unanimous jury verdict in that
they allege two counts of statutory rape that “read identically”
during the same “distinct timeframe.” The three timeframes
during which the three sets of two identical statutory rape
charges allegedly occurred were 22 November 2010 to 31 January
2011, 1 February 2011 to 30 April 2011, and 1 May 2011 to 8 June
2011. All three indictments twice charge the following:
[T]he jurors for the State upon their oath
present that on or about the date of offense
shown and in Onslow County the defendant
named above unlawfully, willfully and
feloniously did engage in vaginal
intercourse with [Susan], a person of the
age of 14 years. At the time of the
offense, the defendant was at least six
years older than the victim and was not
lawfully married to the victim.
Defendant also correctly points out that the verdict sheets for
the three sets of two statutory rape charges were identical, in
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every other respect except the case number, and, six times,
repeat the following:
______ GUILTY OF STATUTORY RAPE AGAINST A
VICTIM WHO WAS FOURTEEN YEARS OLD
OR
______ GUILTY OF ATTEMPTED STATUTORY RAPE
AGAINST A VICTIM WHO WAS FOURTEEN YEARS OLD
OR
______ NOT GUILTY
In the trial court’s instructions the jury, it preliminarily
stated the following: “Some of these alleged crimes are charged
more than one time. I have not attempted to repeat the
definition of these crimes each time they are referred to in the
instructions. I have defined the crime completely the first time
that crime is referred to in the instructions. When considering
a crime the second or subsequent time it is referred to in the
instructions, you are instructed to consider the complete
definition of the crime when it first appears.”
The trial court did instruct the jury that they “may not
return a verdict until all 12 jurors agree unanimously. You may
not render a verdict by majority vote. When you have agreed
upon a unanimous verdict, your foreperson may so indicate on the
verdict forms.” Moreover, after the guilty verdicts were
returned in this case, the trial court polled the jury on each
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verdict to determine whether each individual juror agreed that
the verdict was unanimous.
The evidence in this case regarding the six counts of
alleged statutory rape consisted mostly of Susan and her
mother’s testimony. The evidence in this case was, in large
part, generic testimony showing a pattern of repeated sexual
abuse, rather than specific testimony detailing individual
incidents.
Defendant’s arguments pertaining to the language of the
indictments, verdict sheets, and jury instructions in this case,
which he contends amounts to a violation of Defendant’s right to
a unanimous verdict, has been addressed and overruled by prior
decisions of this Court and the North Carolina Supreme Court.
In State v. Bullock, 178 N.C. App. 460, 472-73, 631 S.E.2d
868, 877 (2006), disc. review denied, 361 N.C. 222, 642 S.E.2d
708 (2007), we addressed the question of whether generic
testimony in cases such as this may sustain multiple
convictions:
The Court of Appeals decisions in Gary
Lawrence and State v. Bates, 172 N.C. App.
27, 616 S.E.2d 280 (2005) (see also State v.
Massey, 174 N.C. App. 216, 621 S.E.2d 633
(2006)) held that generic testimony can only
support one additional conviction over and
above those instances for which there was
event specific testimony. However, Gary
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Lawrence was reversed by the Supreme Court,
and the holding in Bates was based entirely
upon the Court of Appeals decision in Gary
Lawrence. These decisions are no longer
binding precedent on the question of
“generic testimony.” Rather, we look for
guidance to the earlier Court of Appeals
decision in Wiggins, which was specifically
cited with approval by the Supreme Court in
Markeith Lawrence[,] [360 N.C. 368, 627
S.E.2d 609 (2006)].
In Wiggins, the trial court submitted two
counts of statutory sex offense and five
counts of statutory rape to the jury.
Defendant was convicted of all charges. The
victim testified as to two specific
instances of statutory sex offense, four
specific instances of statutory rape, and in
addition that the defendant had sexual
intercourse with her five or more times a
week over a two year period. The Court of
Appeals held that under these facts, “there
was no danger of a lack of unanimity between
the jurors with respect to the verdict.”
Wiggins, 161 N.C. App. at 593, 589 S.E.2d at
409. Implicit in this decision is that
generic testimony can in fact support a
conviction of a defendant. The Court of
Appeals decisions in Gary Lawrence and Bates
attempt to limit the number of convictions
which can be based upon generic testimony to
one. However, no authority is cited for
this proposition other than “continuous
course of conduct” statutes from other
jurisdictions, which Gary Lawrence
acknowledges are not in existence in North
Carolina. We find no language in Wiggins
which would limit the number of convictions
based upon “generic testimony” to one. In
this case, the testimony of the victim was
that defendant had sexual intercourse with
her more than twice a week over a ten month
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period. Defendant was only charged with
eleven counts of statutory rape.
Bullock, 178 N.C. App. at 472-73, 631 S.E.2d at 877 (stating
that “evidence in this matter was that defendant raped the
victim at least twice a week for ten months” and “[w]ith respect
to the offenses occurring in January 2001 through October 2001,
there was no testimony distinguishing any of these events[,]”
reasoning that “[e]ither the jury believed the testimony of the
victim that these rapes occurred, or they did not[;] [t]here was
no possibility that some of the jurors believed that some of the
rapes took place, and some believed that they did not[,]” and
holding that “defendant's right to an unanimous verdict under
Article I, § 24, and N.C. Gen. Stat. § 15A-1201 and § 15A-
1237(b) was not violated”); see also State v. Massey, 361 N.C.
406, 408, 646 S.E.2d 362, 364 (2007).
In Bullock, we also addressed Defendant’s argument
pertaining to jury instructions. In that case, the defendant
argued “that the trial court erred by not repeating the full
jury instructions for each individual count[.]” Id. at 464, 631
S.E.2d at 872. This Court recited the instruction given and
stated the following: “It is clear from the trial court’s
charge that the initial instruction on the elements of first-
degree rape applied to all 11 counts. The trial court’s
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instructions on each count contained all three of the elements
of first-degree rape and the requirement that the jury find each
element beyond a reasonable doubt.” Id. at 465, 631 S.E.2d 872.
This Court further stated, “[i]n this case, the jury was charged
as to the offenses contained in the indictment, including the
alleged date of each offense[,]” and this Court held that the
jury instruction is not improper. Id.
In State v. Lawrence, 360 N.C. 368, 373, 627 S.E.2d 609,
612 (2006), the North Carolina Supreme Court enumerated six
factors for consideration in a determination of whether a
defendant’s right to a unanimous jury verdict has been abridged:
(1) whether the defendant raised an objection at trial regarding
unanimity; (2) whether the jury was instructed on all issues,
including unanimity; (3) whether separate verdict sheets were
submitted to the jury for each charge; (4) the amount of time
during which the jury deliberated and reached a decision on all
counts submitted; (5) whether there was any indication of
confusion or questions from the jury; and (6) whether, when
polled by the court, all jurors individually affirmed that they
had found defendant guilty in each individual case file number.
Id. In this case, Defendant did not object at trial on this
basis; the jury was instructed on all the issues, including
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unanimity; verdict sheets were given to the jury for each
indictment, and each count of statutory rape was set out
separately in the verdict sheet for each indictment; the jury
deliberated for two hours and fifty-five minutes; during
deliberations, the jury did request to view the transcript of a
telephone conversation between the victim, the victim’s mother,
and Defendant, which was recorded at the Onslow County Sheriff’s
Office; however, we do not believe this request indicates
confusion or questions regarding a unanimity issue; and,
finally, the jury was individually polled as to the verdicts in
question – in fact, all of the verdicts, count-by-count – and
the jury indicated that their decision was unanimous.
Based on the foregoing, we believe Defendant’s argument
must necessarily fail. Defendant’s right to a unanimous jury
verdict was not abridged in this case.
NO ERROR.
Chief Judge MARTIN Judge STEELMAN concur.
Report per Rule 30(e).