State v. Bauguss, ___ N.C. App. ___, 827 S.E.2d 127 (Apr. 16, 2019)

In this child sexual assault case, the trial court did not err by denying the defendant’s motion to dismiss five statutory sexual offense charges based on a theory of aiding and abetting. The State’s theory was that the defendant encouraged the victim’s mother to engage in sexual activity with the victim, and that the victim’s mother did this to “bait” the defendant into a relationship with her. On appeal the defendant argued that the evidence was insufficient to show that he encouraged or instructed the victim’s mother to perform cunnilingus or digitally penetrate the victim, or that any statement by him caused the victim’s mother to perform the sexual acts. The court disagreed. The State’s evidence included Facebook conversations between the victim’s mother and the defendant. The defendant argued that these messages were fantasies and that even if taken at face value, were devoid of any instruction or encouragement to the victim’s mother to perform sexual acts, specifically cunnilingus or penetration of the victim. The court rejected this argument, concluding that an explicit instruction to engage in sexual activity is not required. Here, the evidence showed that the defendant knew that the victim’s mother wanted a relationship with him and that he believed she was using the victim to try to initiate that relationship. Numerous messages between the defendant and the victim’s mother support a reasonable inference of a plan between them to engage in sexual acts with the victim. The victim’s mother testified that she described sexual acts she performed on the victim to the defendant because he told her he liked to hear about them. The defendant argued that this description of sexual acts after the fact is insufficient to support a finding that he knew of or about these acts prior to their occurrence, a requirement for aiding and abetting. However, the court concluded, the record supports an inference that he encouraged the victim’s mother to perform the acts. Among other things, the defendant specified nude photos that he wanted of the victim and initiated an idea of sexual “play” between the victim’s mother and the victim. After the victim’s mother videotaped her act of performing cunnilingus on the victim and send it to the defendant, the defendant replied that he wanted to engage in that act. After he requested a video of the victim “playing with it,” the victim’s mother made a video of her rubbing the victim’s vagina. This evidence was sufficient to support an inference that the defendant aided and abetted in the victim’s mother’s sexual offenses against the victim.