An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                        -2-
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.
                                           -3-
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
                                    -4-
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.
                                   -5-
    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
                                         -6-
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
                                          -7-
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
                                            -8-
(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
                                         -9-
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
                                             -10-
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
                     -11-
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
                                             -12-
              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
                                    -13-
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
                                             -14-
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).
