State v. Wilson

823 S.E.2d 892, 263 N.C. App. 567
CourtCourt of Appeals of North Carolina
DecidedJanuary 15, 2019
DocketCOA18-550
StatusPublished
Cited by14 cases

This text of 823 S.E.2d 892 (State v. Wilson) 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. Wilson, 823 S.E.2d 892, 263 N.C. App. 567 (N.C. Ct. App. 2019).

Opinion

ZACHARY, Judge.

*568 Defendant Timothy Levon Wilson appeals from judgments entered upon jury verdicts finding him guilty of taking indecent liberties with a child, assault by strangulation, disseminating obscene material to a minor under 13 years of age, and first-degree statutory rape of a child under 13 years of age. Defendant argues that (1) the trial court erred in failing to dismiss the charge of disseminating obscene material to a minor due to insufficient evidence; (2) the trial court's jury instructions violated Defendant's constitutional right to a unanimous jury verdict; and (3) the trial court violated Defendant's state and federal constitutional rights when it denied his request to reopen the case upon changing his mind that he wished to testify. We conclude that there was no error.

Background

On 30 March 2015, Defendant was indicted for five counts of taking indecent liberties with a child, four counts of sex offense in a parental role, four counts of first-degree statutory rape of a child under 13, one count of disseminating obscenity to a minor under 13, and one count of assault by strangulation. Defendant was indicted for six additional counts of taking indecent liberties with a child on 1 June 2015.

*569 Six of Defendant's charges for taking indecent liberties with a child involved Defendant's older stepdaughter, Q.R., 1 who was born in August of 1998. However, Defendant's arguments on appeal only concern Defendant's conduct against his younger stepdaughter, Q.B.

The evidence at trial showed that Defendant engaged in a pattern of sexual conduct with Q.B., who was born in May 2003. She was the youngest child in the home and was the first to arrive home from school each day.

*895 Q.B. would thereafter remain alone with Defendant until Q.R. and Defendant's son returned home from school, with Q.B.'s mother returning home much later. Most of the incidents for which Defendant was charged occurred during the weekdays when Q.B. was alone in the house with Defendant. Each of the acts was alleged to have occurred between 15 May 2011 and 1 January 2015.

Q.B. testified that Defendant had touched her on her vagina "[m]ore than one time," but she was best able to remember the details of two particular incidents. During the first, Q.B. was in the master bedroom and Defendant had her sit "[o]n the edge of his bed" and "touched [her] vagina with his hands." Q.B. said that "[she] was scared, [and she] didn't know what to do." Q.B. also testified about an incident that occurred while she was in her bedroom. She was lying on the bottom bunk of her bed when Defendant came into her room wearing only his boxers, lay down next to her, and began inserting his fingers into her vagina.

Q.B.'s testimony also revealed that Defendant had penetrated her vagina with his penis on multiple occasions. Several of those incidents occurred in the master bedroom. Q.B. recalled that on one occasion, she was alone in the house with Defendant after school. Defendant was naked, told Q.B. to take her clothes off, put Q.B. on his bed, and retrieved the "Blue Magic" hair grease from the bathroom. Defendant then "put [the] grease on his penis and he just- ... he stuck it inside my vagina." Q.B. said that Defendant "stuck it in and out" "[m]ore than one time," until "he heard something" and stopped. Q.B. also testified in detail about a second incident that took place in the master bedroom, during which Defendant inserted his penis into Q.B.'s vagina after applying a different type of grease from a pink strawberry container. On another occasion, Q.B. said that one morning before school, Defendant "told me like go take a shower and it was like after. And then like I didn't have no clothes on because I went to go take a shower and then he just told me to go in his room and that's when he just stuck his penis in my vagina."

*570 Q.B. said that Defendant eventually stopped "[b]ecause my sister called my name."

Additionally, Q.B. testified that Defendant had penetrated her vagina with his penis "[m]ore than one time" in the "kids' living room" of the house. On one of the occasions, she was lying on the floor watching television when Defendant "told [Q.B.] to take off [her] clothes and then he only had his boxers on." After Q.B. took her clothes off, Defendant "told [her] to lay back down and then he stuck his penis in [her] vagina." Defendant eventually got off of her because "[h]e was hearing noises."

Similar incidents occurred "[m]ore than one time" in the "adult living room." On one of those occasions, Q.B. said that she was sitting on the couch and that Defendant came into the room in his boxers, "told [her] to take off [her] clothes[,]" put hair grease on his penis, got "[o]n top of [her,]" and put his penis "[i]n and out" of her vagina while still wearing his boxers. Q.B. said that she "was scared," and that "[i]t hurt." Q.B. testified about yet another particular incident of vaginal intercourse that took place in Defendant's son's bedroom.

Lastly, Q.B. testified about an incident wherein Defendant was watching a nude sex scene in his bedroom and called her into the room to watch. Defendant was charged with disseminating obscenity to a minor under 13 years of age for that incident. Defendant moved to dismiss this charge due to insufficiency of the evidence, which the trial court denied.

Defendant's indictments only alleged the general conduct underlying each charge. However, the jury verdict sheets indicated that Defendant's four counts each of sex offense in a parental role and first-degree statutory rape, along with four of his charges for taking indecent liberties, were based upon Defendant's alleged conduct of "engaging in vaginal intercourse" with Q.B. in four distinct locations: (1) "in the Defendant's bedroom"; (2) "in the 'kids' living room' "; (3) "in the 'adult's living room' "; and (4) "in [Defendant's son's] bedroom," respectively. The verdict sheets indicated that Defendant's fifth count of taking indecent liberties was for "touching [Q.B.'s] genitals with his *896 hands." Six additional counts of taking indecent liberties were for conduct involving Q.R., two of which the State voluntarily dismissed.

Defendant presented no evidence at trial, and the jury found Defendant guilty of all nineteen charges. The trial court arrested judgment on the four counts of sex offense in a parental role and four counts of taking indecent liberties with a child because they involved the same underlying conduct as the four counts of first-degree statutory *571 rape, for which the jury had also found Defendant guilty. The trial court imposed consecutive sentences against Defendant, in all totaling 1,510 to 2,070 months' imprisonment. Defendant gave oral notice of appeal in open court.

Motion to Dismiss

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Cite This Page — Counsel Stack

Bluebook (online)
823 S.E.2d 892, 263 N.C. App. 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-ncctapp-2019.