              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-550

                                Filed: 15 January 2019

Union County, No. 15 CRS 50112-16, 15 CRS 51542-43

STATE OF NORTH CAROLINA

             v.

TIMOTHY LEVON WILSON


      Appeal by defendant from judgments entered 6 November 2017 by Judge

Martin B. McGee in Union County Superior Court. Heard in the Court of Appeals 27

November 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General John F. Oates,
      Jr., for the State.

      Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant.


      ZACHARY, Judge.


      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
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                                       Opinion of the Court



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.

       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. 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




       1  Pseudonyms are used throughout the opinion to protect the identities of the minor victims
and for ease of reading.

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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



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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.” 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



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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 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 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.



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                                  Motion to Dismiss

      Defendant first argues that the trial court erred in denying his motion to

dismiss the charge of disseminating obscene material to a minor under 13 years of

age because the State’s evidence was insufficient to warrant the submission of that

charge to the jury. In particular, Defendant contends that the State presented

insufficient evidence to show that the material was “obscene material” within the

meaning of the statute.

      The standard of review upon a defendant’s motion to dismiss is well

established:

               When reviewing a defendant’s motion to dismiss a charge
               on the basis of insufficiency of the evidence, this Court
               determines whether the State presented substantial
               evidence in support of each element of the charged offense.
               Substantial evidence is relevant evidence that a reasonable
               person might accept as adequate, or would consider
               necessary to support a particular conclusion. In this
               determination, all evidence is considered in the light most
               favorable to the State, and the State receives the benefit of
               every reasonable inference supported by that evidence. . . .
               Additionally, a substantial evidence inquiry examines the
               sufficiency of the evidence presented but not its weight,
               which is a matter for the jury.

State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012). When a defendant’s

motion to dismiss challenges “the sufficiency of circumstantial evidence, the question

for the court is whether a reasonable inference of [the] defendant’s guilt may be drawn

from the circumstances.” State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665



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(1965). If so, then the defendant’s motion to dismiss must be denied in order “for the

jury to decide whether the facts, taken singly or in combination, satisfy them beyond

a reasonable doubt that the defendant is actually guilty.” Id.

      In order to survive a motion to dismiss a charge of disseminating obscene

material to a minor under N.C. Gen. Stat. § 14-190.8, the State must present

substantial evidence to show (1) that the defendant is 18 years of age or older, and

(2) that the defendant knowingly, (3) disseminated, (4) to a minor under the age of

13, (5) any material which the defendant knew or reasonably should have known to

be obscene within the meaning of section 14-190.1. N.C. Gen. Stat. § 14-190.8 (2017);

State v. Hill, 179 N.C. App. 1, 14, 632 S.E.2d 777, 785 (2006).

      Pursuant to N.C. Gen. Stat. § 14-190.1, material is considered to be “obscene”

if:

             (1) The material depicts or describes in a patently offensive
             way sexual conduct specifically defined by subsection (c) of
             this section [as, inter alia, vaginal, anal, or oral
             intercourse, whether actual or simulated, normal or
             perverted]; and

             (2) The average person applying contemporary community
             standards relating to the depiction or description of sexual
             matters would find that the material taken as a whole
             appeals to the prurient interest in sex; and

             (3) The material lacks serious literary, artistic, political, or
             scientific value; and

             (4) The material as used is not protected or privileged
             under the Constitution of the United States or the


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             Constitution of North Carolina.

N.C. Gen. Stat. § 14-190.1(b) (2017); see also id. § 14-190.1(c)(1). Whether particular

content is obscene is to “be judged with reference to ordinary adults.” Id. § 14-

190.1(d). Moreover, “[n]othing in section 14-190.1 requires the State to produce the

precise material alleged to be obscene.” State v. Mueller, 184 N.C. App. 553, 566, 647

S.E.2d 440, 450, cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007).

      In the instant case, Defendant’s argument is premised primarily upon the fact

that “contemporary community standards must take into account the fact that

television regularly depicts couples having sex.” Because “Q.B.’s description of what

she saw[] also describes what can be seen on contemporary television”—particularly

on premium cable channels such as Showtime, HBO, and FX that regularly depict

“sexual activity and nudity”—Defendant argues that “the State failed to provide

substantial evidence that what [Q.B.] saw was obscene according to contemporary

standards.” Defendant therefore argues that the trial court erred in denying his

motion to dismiss the charge of disseminating obscenity to a minor. We disagree.

      Q.B. testified to the following circumstances regarding the alleged incident:

             Q.    [W]as there ever a time when the Defendant showed
             you any movies that you didn’t like?

             A.     Yes.

             Q.     Okay. Can you tell me about that, please?

             A.     It was like he had helped me with my math


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homework and he like had TV in his room and like it was
already set up and—

Q.    [Q.B.], let’s just wait a minute for that to go back,
okay. Okay. So you said there was a TV in [Defendant’s]
room and it was already set up?

A.    Yes.

Q.    And so tell me what happened from there.

A.    He had told me to go in his room and then I saw on
the TV a guy and a girl.

Q.     And you saw on the TV a guy and a girl. Before we
talk about that, you said that [Defendant] told you to go in
his room?

A.    Yes.

Q.    So you didn’t just wander in there?

A.    No.

      ....

Q.    What were the guy and the girl on the TV doing?

A.    They were having sex.

      ....

Q.    And when you say they were having sex, can you
describe what you saw?

A.     The guy was on top of the girl and he just stuck his
penis inside of her.

Q.     And did the guy and the girl on TV, did they have
clothes on at all?


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                      Opinion of the Court




A.    No.

Q.     And when you went in [Defendant’s] room and saw
that, did [Defendant] go in the room with you?

A.    Yes.

Q.    Did [Defendant] say anything to you?

A.    No.

Q.    And did you watch the TV?

A.    Yes.

Q.    Okay. How long did you watch the TV?

A.    Like for a little bit.

      ....

Q.    And when you—did you eventually leave the room?

A.    Yes.

Q.    And how did you leave the room?

A.    Just walked out.

      ....

Q.    Okay. And how did watching that movie make you
feel?

A.    Scared and disgusted.

      ....

Q.    Why were you scared?


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             A.     Because I never seen anything like it.

On cross-examination, Q.B. clarified that Defendant was already in the master

bedroom with the scene playing when he called Q.B. into the room.

      In addition to Q.B.’s description of the movie that Defendant had shown her,

the State introduced a photograph of three pornographic DVDs that detectives found

during their search of the master bedroom. Q.B.’s mother also testified that

Defendant “had so many” pornographic DVDs that he kept in that room. According

to Q.B.’s mother, however, when Q.B. approached authorities with her allegations

concerning Defendant, Defendant “packed [his pornography collection] up and got rid

of it and he called his older children and sent some of it away.” She said that

Defendant had also taken a container full of his remaining pornography collection

“out to the shed” behind their property. Q.B.’s mother later found that collection and

gave it to detectives. At trial, various titles from Defendant’s collection were read to

the jury.

      When viewed in the light most favorable to the State, we conclude that this

evidence would allow a jury to reasonably infer that the material Defendant showed

to Q.B. was of the same nature of that contained in Defendant’s pornography

collection and was, therefore, “obscene” material under contemporary community

standards, the dissemination of which to children under the age of 13 is unlawful.

Accordingly, the trial court properly denied Defendant’s motion to dismiss the charge


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of disseminating obscene material to a minor, as the State presented substantial

evidence of each element of that offense.

                                  Unanimous Jury Verdict

       Next, Defendant argues that the trial court’s jury instructions denied him of

his constitutional right to a unanimous jury verdict. We disagree.

       The trial court instructed the jury that Defendant was charged, inter alia, with

nine counts of taking indecent liberties with a child,2 four counts of first-degree rape

of a child, and four counts of sex offense in a parental role. The trial court provided a

single instruction for each offense, without describing the details of the conduct

underlying each individual charge. The trial court did, however, instruct the jury that

“[y]ou must consider each count individually,” and the verdict sheets identified each

count by victim and included a brief description of the particular conduct alleged by

reference to the location in which it occurred. In addition, the trial court instructed

the jury that “[a]ll 12 of you must agree upon your verdict. You cannot reach a verdict

by majority vote.” The trial court also instructed the jury to indicate on the verdict

forms “when you have agreed upon unanimous verdicts as to each charge.”

       Defendant, however, argues that because the charges were “numerous,

complex and for some charges based on the same evidence, the trial court’s minimalist

jury instruction in which the court failed to instruct the jury that they must be


       2 Defendant was initially charged with eleven counts of taking indecent liberties with a child,
but the State voluntarily dismissed two of those charges that involved Q.R.

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unanimous on each charge violated [his] constitutional right to unanimous jury

verdicts.” Defendant contends that “because the record does not establish that the

jury verdicts . . . were unanimous,” his convictions for taking indecent liberties with

a child and first-degree statutory rape of a child must be vacated.3

        Article I, section 24 of the North Carolina Constitution requires that “[n]o

person shall be convicted of any crime but by the unanimous verdict of a jury in open

court.” N.C. Const. art. 1, § 24. In State v. Lawrence, 360 N.C. 368, 627 S.E.2d 609

(2006), our Supreme Court enumerated several factors relevant to the determination

of whether a defendant has been deprived of his right to a unanimous jury verdict by

virtue of the trial court’s jury instructions, including:

                (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 length of time the jury deliberated and reached a
                decision on all counts submitted to it; (5) whether the
                record reflected any confusion or questions as to jurors’
                duty in the trial; and (6) whether, if polled, each juror
                individually affirmed that he or she had found [the]
                defendant guilty in each individual case file number.




        3 In his brief, Defendant states that his “convictions for sex activity with a minor over whom
the defendant had assumed the position of a parent,” rather than his convictions for taking indecent
liberties with a child, should be vacated. However, this appears to be a typo, as the trial court arrested
judgment on those four counts.

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State v. Pettis, 186 N.C. App. 116, 123, 651 S.E.2d 231, 235 (2007) (citing Lawrence,

360 N.C. at 376, 627 S.E.2d at 613), disc. review denied, 362 N.C. 369, 662 S.E.2d

387, cert. denied, 555 U.S. 975, 172 L. Ed. 2d 337 (2008).

      In the instant case, Defendant did not raise an objection at trial regarding the

jury instructions and factor one, the unanimity of the verdicts. As for the third

Lawrence factor, the jury was provided with separate verdict sheets for each charge,

and the sheets included specific details outlining the particular conduct upon which

each individual count was based. Cf. Lawrence, 360 N.C. at 369, 627 S.E.2d at 609

(“[N]either the indictments, jury instructions, nor verdict sheets identified the

specific incidents of the respective statutory rape and indecent liberties charges for

which the jury found [the] defendant guilty.”). Lastly, the record does not reflect any

confusion or question regarding the jurors’ duty in the trial (factor five).

      Nevertheless, Defendant contends that “factors two, four and six support a

finding that the jury’s verdict was not unanimous.” However, the case at bar is no

different from the facts underlying these factors in Lawrence and Pettis, upon which

Defendant relies.

      Regarding the second Lawrence factor, Defendant maintains that “the court’s

only instruction on unanimity came at the end of the charge: ‘All 12 of you must agree

upon your verdict.’ ” Defendant argues that “this generic unanimity instruction was

not sufficient to assure that each of the nineteen verdicts was unanimous” given the



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“complexity of the charges.” “At a minimum,” Defendant maintains that “the

instruction should have been: ‘All 12 of you must agree upon each of your verdicts.’ ”

(Emphasis added). However, Defendant cites no authority for his proposition that the

trial court’s manner of instructing the jury was insufficient. Moreover, Defendant

ignores the trial court’s instructions that the jurors “must consider each count

individually” and notify the court when they had “agreed upon unanimous verdicts

as to each charge.” (Emphasis added). Thus, the jury was indeed instructed on

unanimity, and the second Lawrence factor was satisfied.

      Concerning the fourth Lawrence factor, Defendant asserts that because the

jury’s deliberation in the instant case lasted for only thirty-one minutes, this

indicates “that the verdicts may not have been unanimous.” Defendant’s argument

directly contradicts the significance that our Supreme Court ascribed to this factor in

Lawrence, wherein “the jury deliberated and reached a decision on all counts

submitted to it in less than one and one-half hours.” Lawrence, 360 N.C. at 376, 627

S.E.2d at 613. Just as in Lawrence, Defendant presented no evidence for the jury’s

consideration to contradict the victims’ accounts. The fourth factor likewise tends to

suggest that the jury’s verdicts were unanimous.

      Lastly, as to factor six, Defendant asserts that because “the jurors were not

polled” in the instant case, “an opportunity to ascertain whether each verdict was

unanimous was missed.” However, Defendant’s argument misrepresents the events.



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The jurors were in fact polled. After the jury rendered its verdicts, the trial court

inquired: “I would like to ask, is that still—are those still your unanimous verdicts?

If so, please raise your right hand.” The transcript then reveals “that all 12 jurors . .

. raised their right hand affirming that those are indeed their unanimous verdicts.”

      Accordingly, upon consideration of the Lawrence factors, we conclude that

there is no indication in the present case that the jury’s verdicts were not unanimous.

      Moreover, the instant case is not one in which the risk of a non-unanimous

verdict would have arisen by virtue of the trial court’s instructions. Defendant argues

that the jury instructions “contained no information for the jurors to decide how they

were to proceed when the evidence could support various verdicts or could support a

number of the verdicts.” For example, Defendant notes that Q.B. testified that

Defendant vaginally penetrated her in the “kids’ living room” “[m]ore than one

time[,]” but only detailed one particular incident in that location. Thus, Defendant

argues that “one juror could have found that the detailed description met all of the

elements for first degree statutory rape and then used Q.B.’s testimony that it

happened more than one time to use the evidence of the other times for a guilty

verdict on indecent liberties.” Yet, “based on the same evidence another juror could

have reasoned that the detailed description of the one incident supported a guilty

verdict on indecent liberties [and] first degree statutory rape.” Defendant maintains

that “[t]his confusion would have been allayed if the court had instructed the jurors



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that they needed to be unanimous either on evidence supporting an individual offense

or supporting numerous offenses.”

      The crimes with which Defendant was charged, however, do “not list, as

elements of the offense, discrete criminal activities in the disjunctive.” Id. at 375, 627

S.E.2d at 613 (quotation marks omitted) (citing State v. Hartness, 326 N.C. 561, 564,

391 S.E.2d 177, 179 (1990)). Instead, “the indecent liberties statute simply forbids

‘any immoral, improper, or indecent liberties’ ” with any child under 13 years of age

where such act is taken for the purpose of arousing or gratifying sexual desire. Id. at

374, 627 S.E.2d at 612 (quoting N.C. Gen. Stat. § 14-202.1(a)(1)). The particular act

found to have been performed is immaterial to the unanimity inquiry “because the

evil the legislature sought to prevent was the taking of any kind of sexual liberties

with a child in order to arouse or gratify sexual desire.” State v. Lyons, 330 N.C. 298,

306, 412 S.E.2d 308, 314 (1991). Thus, “even if some jurors [were to find] that [a]

defendant engaged in one kind of sexual misconduct, while others found that he

engaged in another, the jury as a whole would [still have] unanimously f[ou]nd that

there occurred sexual conduct within the ambit of any immoral, improper, or indecent

liberties.” Lawrence, 360 N.C. at 374, 627 S.E.2d at 612 (internal quotation marks

omitted).

      Here, the trial court instructed the jury that Defendant had been charged with

nine counts of taking indecent liberties with a child, five of which involved conduct



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against Q.B. The trial court properly instructed that what constitutes “[a]n indecent

liberty is an immoral, improper or indecent touching or act by the Defendant upon

the child.” Pursuant to those instructions, the jury found Defendant guilty of all five

counts of taking indecent liberties with Q.B. Indeed, Q.B. testified to at least five

particular incidents that would have constituted indecent liberties as reflected in the

verdict sheets: (1) touching and digital penetration of Q.B.’s vagina in the master

bedroom; (2) penile penetration of Q.B.’s vagina using Blue Magic hair grease in the

master bedroom; (3) penile penetration of Q.B.’s vagina using strawberry hair grease

in the master bedroom; (4) penile penetration of Q.B.’s vagina in the master bedroom

after Q.B. showered; (5) penile penetration of Q.B.’s vagina in the “kids’ living room”;

(6) penile penetration of Q.B.’s vagina in the “adult living room”; and (7) penile

penetration of Q.B.’s vagina in Defendant’s son’s bedroom. It is irrelevant that Q.B.

testified about some incidents having happened “more than one time” in a particular

location. Quite simply, “while one juror might have found some incidents of

misconduct and another juror might have found different incidents of misconduct, the

jury as a whole found that improper sexual conduct occurred.” Id. at 374, 627 S.E.2d

at 612-13.

      Similarly, the jury convicted Defendant of four counts of first-degree statutory

rape of a child, and Q.B. testified to at least four specific incidents that constituted

statutory rape and occurred in each of the four locations indicated on the verdict



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sheets. The record therefore reveals no danger that the four first-degree statutory

rape verdicts were not unanimous. See id. at 376, 627 S.E.2d at 613 (“[D]efendant

was indicted on five counts of statutory rape; Lucy testified [that she had sexual

intercourse with the defendant thirty-two separate times, but testified] to five specific

incidents of statutory rape, and five verdicts of guilty were returned to the charge of

statutory rape. We conclude that defendant was unanimously convicted by the jury.”);

see also State v. Wiggins, 161 N.C. App. 583, 593, 589 S.E.2d 402, 409 (2003) (“As to

the [five] charges of statutory rape, R.B. testified to four specific occasions she could

describe in detail during which defendant had sexual intercourse with her . . . . R.B.

also testified that defendant had sexual intercourse with her five or more times a

week during this . . . period. Thus, where [five statutory rape] offenses . . . were

charged in the indictments, and based on the evidence presented at trial, the jury

returned [five] guilty verdicts, there was no danger of a lack of unanimity between

the jurors with respect to the verdict.”), disc. review denied, 358 N.C. 241, 594 S.E.2d

34 (2004).

      Thus, not only does an examination of the Lawrence factors indicate that the

jury’s verdicts were unanimous, but the instant case is also not one in which the risk

of a non-unanimous jury verdict would arise by virtue of the trial court’s instructions.

Accordingly, we conclude that Defendant was unanimously convicted of the counts

for which the trial court imposed judgment.



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         Defendant’s Reconsideration of His Decision Not to Testify

      Lastly, Defendant argues that the trial court violated his “right to testify by

denying [his] request to testify after the State and [he] had rested and by failing to

ask [him] if he agreed with his attorney’s decision not to make a proffer of this

testimony[.]” We find no such error.

      It is axiomatic that “[t]he right of a defendant . . . to present to the jury his

version of the facts is a fundamental element of due process of law, guaranteed by the

Sixth and Fourteenth Amendments to the federal Constitution and by Article I,

Sections 19 and 23 of the North Carolina Constitution.” State v. Miller, 344 N.C. 658,

673, 477 S.E.2d 915, 924 (1996). Also well established, however, is that “there is no

constitutional right to have a case reopened.” State v. Perkins, 57 N.C. App. 516, 520,

291 S.E.2d 865, 868 (1982). Where a defendant expresses a desire to testify after

having already waived his right to do so, the decision whether to reopen the case and

hear the defendant’s testimony is within the sound discretion of the trial judge. See

id.; see also N.C. Gen. Stat. § 15A-1226(b) (2017). Thus, a trial court’s decision

whether to reopen a case when a defendant reconsiders his decision not to testify will

be upheld “unless it is shown to be manifestly unsupported by reason.” State v.

Phillips, 171 N.C. App. 622, 630, 615 S.E.2d 382, 387 (quotation marks omitted),

appeal dismissed and disc. review denied, 360 N.C. 74, 622 S.E.2d 628 (2005).




                                         - 20 -
                                    STATE V. WILSON

                                    Opinion of the Court



      In the instant case, toward the end of the State’s evidence, the trial court

suggested to Defendant that he begin thinking about whether he wanted to testify.

At the end of the next day, Defendant informed the trial court that he would “decide

tonight.” Finally, after the close of the State’s evidence on the next day, the trial court

addressed Defendant regarding his decision whether or not to testify:

             Sir, you have the right to remain silent, any statement you
             make may be used against you. You don’t have to say
             anything to me at all, you’re represented by a lawyer, but
             I’d like to have this discussion with you to make sure you
             understand your rights concerning whether or not you wish
             to testify. You have the right to testify or not to testify. The
             decision about whether or not to testify should not be made
             by your lawyer, the district attorney, me, your family
             members or anyone else. That decision is yours and yours
             alone. If you choose not to testify, I will give an instruction
             to the jury saying they are not to hold that against you. If
             you don’t mind discussing this with me, I want to ask you
             do you have any questions about your right to testify or not
             to testify or anything related to that right?

Defendant told the trial court that he did not have any questions on the matter, but

said that he wanted to speak with his attorney one last time before he made his

decision. After speaking privately with his attorney for fifteen minutes, Defendant

informed the trial court that he was not going to testify. Defendant thereafter did not

present any evidence, the defense rested, and the jury was excused.

      However, after the charge conference, Defendant’s attorney informed the trial

court that Defendant had reconsidered his decision and now wished to testify. The




                                           - 21 -
                                    STATE V. WILSON

                                    Opinion of the Court



trial court declined to reopen the case and bring the jury back in order to allow

Defendant to testify, reasoning:

             I don’t know how I could have been more careful than to go
             through with him throughout the week and talk to him
             about his right to testify or not to testify. I did it at the very
             beginning, I don’t know that I did it every day but I believe
             I did it multiple days. I gave him—talked to him last night
             about it, explained it to him again last night, he said he
             wanted to have an opportunity to think about it, I said fair
             enough, gave him the opportunity to do that. Asked him
             this morning, again he delayed. Then he wanted an
             opportunity to consult with his attorney when the—I sent
             the jury out. I asked—after a while I asked the bailiff to go
             and ask that you all come back in so I can discuss it. I was
             informed that he needed additional time, I gave him
             additional time to do that. And he came back in I went
             through it in detail with him, he indicated he did not want
             to testify. Then the matter was—the case was rested in
             front of the jury, I then heard motions. . . . And to the extent
             I have discretion, I’m going to deny his request at this
             stage.

      The trial court thoroughly explained its reasoning, and we see nothing in its

justification to be manifestly unsupported by reason. Accordingly, the trial court did

not abuse its discretion when it declined to reopen the case after Defendant

reconsidered his decision not to testify.

                                      Conclusion

      For the reasoning contained herein, we conclude that (1) the trial court

properly denied Defendant’s motion to dismiss the charge of disseminating obscenity

to a minor; (2) the trial court’s instructions did not deprive Defendant of his right to



                                            - 22 -
                                  STATE V. WILSON

                                  Opinion of the Court



unanimous jury verdicts; and (3) the trial court did not abuse its discretion when it

declined to reopen the case after Defendant reconsidered his decision not to testify.

      NO ERROR.

      Judges BRYANT and DILLON concur.




                                         - 23 -
