State v. Bauguss

827 S.E.2d 127, 265 N.C. App. 33
CourtCourt of Appeals of North Carolina
DecidedApril 16, 2019
DocketCOA18-795
StatusPublished
Cited by2 cases

This text of 827 S.E.2d 127 (State v. Bauguss) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bauguss, 827 S.E.2d 127, 265 N.C. App. 33 (N.C. Ct. App. 2019).

Opinions

ARROWOOD, Judge.

*34Robert 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.

*35On 29 July 2013, Wilkes County Sheriff's Deputy Nancy Graybeal received a report of Facebook conversations between defendant *130and 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.

*36Defendant 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."

*131State 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, 121 S.Ct. 213, 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

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Cite This Page — Counsel Stack

Bluebook (online)
827 S.E.2d 127, 265 N.C. App. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bauguss-ncctapp-2019.