An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

                  IN THE COURT OF APPEALS OF NORTH CAROLINA

                                           No. COA14-983

                                          Filed: 5 May 2015

Forsyth County, Nos. 12 CRS 51921, 51925, 13 CRS 146-47

STATE OF NORTH CAROLINA

                  v.

ALLEN RAY WEST


          Appeal by Defendant from judgments entered 9 December 2013 by Judge

David L. Hall in Forsyth County Superior Court. Heard in the Court of Appeals 4

March 2015.


          Attorney General Roy Cooper, by Special Deputy Attorney General William V.
          Conley, for the State.

          Michael E. Casterline for Defendant.


          STEPHENS, Judge.


                               Factual and Procedural Background

          In this case, the State’s evidence shows a pattern of sexual abuse by Defendant

Allen Ray West of his niece, “Bella,”1 from the time she was twelve years old until she



1   We use pseudonyms to refer to the victim and her mother in an effort to protect the victim’s identity.
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                                    Opinion of the Court



fathered Defendant’s child at the age of eighteen. At the time he began abusing Bella,

Defendant was 44 years old. During the time when the abuse occurred, Bella’s

mother and Defendant’s sister, “Terry,” experienced significant financial difficulties

which twice led Terry to move herself and four of her children into Defendant’s home.

Bella and her family lived with Defendant for a year when Bella was twelve and again

when Bella was 14 years old. During this second period of residing with Defendant,

Terry became suspicious about Defendant’s relationship with Bella and found a new

place for her family to live away from Defendant.          However, shortly thereafter,

Defendant asked Bella to move back into his home, and she did. Over the next two

years, when Bella was 15 to 17 years old, Terry would periodically call police to return

Bella to Terry’s home, but Bella always eventually moved back in with Defendant.

Bella continued to reside primarily with Defendant until Bella was nineteen and their

child was approximately one year old.

       Defendant was indicted on twelve charges, which for purposes of our analysis

can be grouped into four sets of offenses according to their nature and the timespan

when they were allegedly committed: (1) three counts of indecent liberties with a

child under 16 (“the indecent liberties offenses”); (2) three counts of incest (“the incest

offenses”); (3) first-degree sexual offense with a child under 13, first-degree rape, and

incest with a child under 13 (“the under age 13 offenses”); and (4) two counts of




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statutory rape of a child age 13, 14, or 15, and incest with a child age 13, 14, or 15

(“the age 13-15 offenses”).

      The case came on for trial at the 2 December 2013 criminal session of Forsyth

County Superior Court. Defendant testified and denied having any sexual contact

with Bella at any time before she turned 16, but did acknowledge fathering Bella’s

daughter. The jury found Defendant guilty on all charges. The trial court entered

judgment on 9 December 2013, consolidated certain charges, and sentenced

Defendant to five consecutive sentences which totaled 942 to 1,177 months in prison.

Defendant gave notice of appeal in open court.

                                          Discussion

      On appeal, Defendant argues that the trial court (1) violated his constitutional

right to a unanimous jury verdict by failing to sufficiently distinguish the multiple

offenses and (2) erred in entering judgment on both the statutory rape and incest

offenses. We find no error.

      I. Unanimity of jury verdicts

      Defendant first argues that the trial court erred in failing to ensure his

constitutional right to a unanimous verdict against him. After careful review, we

conclude there was no error.

      Defendant did not raise this issue in the trial court. “Generally, a failure to

object to an alleged error of the trial court precludes the defendant from raising the



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issue on appeal. However, violations of constitutional rights, such as the right to a

unanimous verdict, are not waived by the failure to object at trial and may be raised

for the first time on appeal.” State v. Davis, 214 N.C. App. 175, 179, 715 S.E.2d 189,

192 (2011) (citation, internal quotation marks, brackets, and ellipsis omitted); State

v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).

      Both our State’s Constitution and General Statutes guarantee criminal

defendants the right to a unanimous jury verdict. State v. Lawrence, 360 N.C. 368,

373-74, 627 S.E.2d 609, 612 (2006) (citations omitted).        Here, while Defendant

acknowledges that the trial court instructed the jury that it must return unanimous

verdicts on each offense charged, he notes that it failed to instruct the jury that each

verdict must be unanimous as to the specific incident underlying each charge.

Defendant contends that this failure was reversible error because Bella’s testimony

about Defendant’s long history of sexually abusing her described numerous acts of

abuse, but lacked specific details that clearly distinguish one event from another.

This Court has referred to such situations, “where a victim recounts a long history of

repeated acts of sexual abuse over a period of time, but does not give testimony

identifying specific events surrounding each sexual act[,]” as “generic testimony.”

State v. Bullock, 178 N.C. App. 460, 471, 631 S.E.2d 868, 876 (2006) (citation omitted),

disc. review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).




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                                   Opinion of the Court



      Appellate courts determine whether a victim’s generic testimony has deprived

a defendant of a unanimous verdict by reviewing the entire context of a case,

including the record, transcript, indictments, jury instructions, and verdict sheets.

See State v. Wiggins, 161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003), disc. review

denied, 358 N.C. 241, 594 S.E.2d 34 (2004).          Likewise, our Supreme Court, in

addressing the same argument and ultimately concluding that the defendant was

unanimously convicted by the jury, based its reasoning on the following

circumstances:

             (1) [the] defendant never raised an objection at trial
             regarding unanimity; (2) the jury was instructed on all
             issues, including unanimity; (3) separate verdict sheets
             were submitted to the jury for each charge; (4) the jury
             deliberated and reached a decision on all counts submitted
             to it in less than one and one-half hours; (5) the record
             reflected no confusion or questions as to jurors’ duty in the
             trial; and (6) when polled by the court, all jurors
             individually affirmed that they had found [the] defendant
             guilty in each individual case file number.

Lawrence, 360 N.C. at 376, 627 S.E.2d at 613.

      Where the number of incidents charged in the indictments and described in

the evidence presented at trial are equal to or greater than the number of guilty

verdicts returned by the jury, there is no error. Wiggins, 161 N.C. App. at 593, 589

S.E.2d at 409. In Wiggins, the defendant was indicted on five counts of statutory

rape, and the verdict sheets listed five separate felony counts of that offense. Id. at

592-93, 589 S.E.2d at 409. At trial, the victim “testified to four specific occasions she


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                                       Opinion of the Court



could describe in detail during which [the] defendant had sexual intercourse with her

when she was between the ages of thirteen and fifteen. [The victim] also testified

that [the] defendant had sexual intercourse with her five or more times a week during

this two-year period.” Id. at 593, 589 S.E.2d at 409. This Court concluded that “there

was no danger of a lack of unanimity between the jurors with respect to the

verdict[s].” Id. (citation omitted).

       Likewise, we addressed a similar situation in Davis, where

              the victim testified that he was forced to masturbate [the]
              defendant and perform fellatio weekly over a two year
              period, with “perhaps only three or four weeks that [the]
              defendant did not engage [the victim] in those sex acts.”
              [The d]efendant was indicted on six counts of first-degree
              statutory sex offense with a child under the age of thirteen,
              six counts of second-degree sex offense, and twenty-four
              counts of indecent liberties with a child. Considering this
              testimony in light of the holdings in both Lawrence and
              Wiggins we find no danger of a lack of unanimity between
              jurors as to the thirty-six guilty verdicts.

214 N.C. App. at 180-81, 715 S.E.2d at 193 (citations omitted). In Bullock, this Court

explained a possible line of reasoning undergirding the result in these cases:

              In holding that generic testimony can support more than
              one conviction, we note the realities of a continuous course
              of repeated sexual abuse. While the first instance of abuse
              may stand out starkly in the mind of the victim, each
              succeeding act, no matter how vile and perverted, becomes
              more routine, with the latter acts blurring together and
              eventually becoming indistinguishable. It thus becomes
              difficult if not impossible to present specific evidence of
              each event. . . . Generally rape is not a continuous offense,
              but each act of intercourse constitutes a distinct and


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                                   Opinion of the Court



             separate offense. The General Assembly has criminalized
             each act of statutory rape, not a course of conduct. Any
             changes in the manner in which a course of criminal
             conduct is punished must come from the legislative branch
             and not from the judicial branch.

             The evidence in this matter was that [the] defendant raped
             the victim at least twice a week for ten months. With
             respect to the offenses occurring in January 2001 through
             October 2001, there was no testimony distinguishing any
             of these events. Either the jury believed the testimony of
             the victim that these rapes occurred, or they did not. There
             was no possibility that some of the jurors believed that
             some of the rapes took place, and some believed that they
             did not. Thus, [the] defendant’s right to an unanimous
             verdict . . . was not violated.

178 N.C. App. at 473, 631 S.E.2d at 877 (citations and internal quotations omitted).

      Here, the indictment charging Defendant with the indecent liberties offenses

describes three counts of taking unspecified indecent liberties with Bella between the

same dates, 1 July 2002 through 18 April 2003, a period when Bella was 12 years old.

             A person is guilty of taking indecent liberties with children
             if, being 16 years of age or more and at least five years older
             than the child in question, he either:

               (1) Willfully takes or attempts to take any immoral,
             improper, or indecent liberties with any child of either sex
             under the age of 16 years for the purpose of arousing or
             gratifying sexual desire; or

               (2) Willfully commits or attempts to commit any lewd or
             lascivious act upon or with the body or any part or member
             of the body of any child of either sex under the age of 16
             years.




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                                  Opinion of the Court



N.C. Gen. Stat. § 14-202.1(a) (2013). Sexual touching or fondling constitutes an

indecent liberty. See, e.g., State v. Slone, 76 N.C. App. 628, 630, 334 S.E.2d 78, 79

(1985).

      Bella testified that the following incidents occurred during this time period:

(1) Defendant’s first instance of sexual abuse of Bella when she was in bed and

Defendant fondled her vagina before penetrating her with his finger; (2) an incident

in Defendant’s living room when he pulled down Bella’s shorts and fondled her

vagina; (3) an incident in Defendant’s car when he felt her vaginal area before

penetrating her with his fingers; (4) three to four occasions on which Defendant

placed his penis in Bella’s mouth in an attempt to have her perform oral sex on him;

and (5) unspecified additional instances when Defendant touched Bella’s vagina.

This testimony would support at least seven verdicts finding Defendant guilty of

taking indecent liberties with a child during this time period, more than twice the

three counts for which Defendant was actually charged and convicted.

      The indictment charging the age 13-15 offenses covered the period between 19

April 2004 and 18 April 2005 when Bella was 14 years old. Incest with a child age

13, 14, or 15 occurs, inter alia, when an uncle has intercourse with his niece “who is

13, 14, or 15 years old and the [uncle] is at least six years older than the child when

the incest occurred.” N.C. Gen. Stat. § 14-178(b)(1)(b) (2013). Statutory rape of a

child age 13, 14, or 15 occurs when “the defendant engages in vaginal intercourse or



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                                    Opinion of the Court



a sexual act with another person who is 13, 14, or 15 years old and the defendant is

at least six years older than the person, except when the defendant is lawfully

married to the person.” N.C. Gen. Stat. § 14-27.7A(a) (2013). Bella testified that,

during this period, Defendant had vaginal intercourse with her at least ten times and

perhaps as often as once per week, in at least three locations: in her own bedroom,

in Defendant’s living room, and in Defendant’s bedroom. Defendant did not dispute

that he knew Bella was his niece. Bella’s testimony is more than sufficient to support

the indictments on two counts of statutory rape of a child age 13, 14, or 15, and one

count of incest with a child age 13, 14, or 15, and the jury’s guilty verdicts on all three

of the age 13-15 offenses.

       Defendant was also indicted for three counts of incest that occurred between 1

January 2009 and 31 December 2009 when Bella was 18 and 19 years old. Defendant

admitted to having repeated intercourse with Bella, who he knew was his niece, once

or twice per month after she turned 18. Thus, Defendant’s own testimony supports

the guilty verdicts on the incest offenses.

       Defendant advances no argument of error regarding the under age 13 offenses:

first-degree sexual offense with a child under 13, first-degree rape, and incest with a

child under 13, perhaps because the jury heard testimony from Bella about repeated

acts of vaginal intercourse and cunnilingus which occurred when Bella was twelve

years old and which separately support the guilty verdicts for these offenses.



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                                          Opinion of the Court



        In sum, our case law and the evidence at trial support all of the guilty verdicts

returned by the jury in Defendant’s case.                    Accordingly, these arguments are

overruled.

        II. Statutory rape as a lesser included offense of incest

        Defendant also argues that the trial court erred in entering judgment on both

the statutory rape and incest offenses.2                  Specifically, Defendant contends that

statutory rape is a lesser included offense of incest and that the trial court violated

his constitutional rights and subjected him to double jeopardy by failing to arrest

judgment against him on either the statutory rape or incest convictions. However, as

Defendant acknowledges, this Court recently addressed this identical issue in State

v. Marlow, and held that “statutory rape is not a lesser included offense of incest.” __

N.C. App. __, __, 747 S.E.2d 741, 747, appeal dismissed, 367 N.C. 279, 752 S.E.2d 493

(2013). This Court cannot, as Defendant requests, “reconsider” that holding. See In

re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a

panel of the Court of Appeals has decided the same issue, albeit in a different case, a

subsequent panel of the same court is bound by that precedent, unless it has been

overturned by a higher court.”) (citations omitted). Accordingly, we overrule this

argument.


2Defendant’s argument concerns the offenses charged under sections 14-27.2(a)(1) (first-degree rape)
and 14-27.7A(a) (statutory rape of a child 13, 14, or 15 years old) and those offenses charged under
sections 14-178(b)(1)(a) (incest with a child under 13 years old) and 14-178(b)(1)(b) (incest with a child
13, 14, or 15 years old).

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                         Opinion of the Court



NO ERROR.

Judges HUNTER, JR., and TYSON concur.

Report per Rule 30(e).




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