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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
1. Sexual Offenses--first-degree sexual offenses--fatal variance between indictment and
evidence
The judgments entered on each of defendant's six first-degree sexual offense convictions
must be vacated due to a fatal variance between the offense alleged in each indictment and the
evidence presented at trial, because: (1) none of the six indictments for first-degree sexual
offense utilized the short-form indictment language authorized by N.C.G.S. § 15-144.2(b) to
charge defendant with first-degree sexual offense pursuant to N.C.G.S. § 14-27.4(a)(1) on the
theory that the alleged sexual offenses were committed against a victim under the age of thirteen
years old; (2) the trial court instructed the jury regarding the first-degree sexual offense charges
on the theory that the minor child was under the age of thirteen at the time of the alleged
offenses, and not on the theory that the offenses were forcible as alleged in the indictments; (3)
the State did not present any evidence that the alleged offenses were forcible as alleged in the
indictments; and (4) defendant must be convicted, if convicted at all, of the particular offense
charged in the warrant or bill of indictment.
2. Constitutional Law--right to unanimous jury-_multiple sexual crimes
Defendant's judgments for three counts of indecent liberties and five counts of statutory
rape are reversed and remanded for a new trial on those charges based on the risk of a
nonunanimous jury verdict, because: (1) no jury instructions, indictment, or verdict sheet
distinguished which incidents served as the bases of the jury's eight verdicts; and (2) there was
evidence of more incidents presented than the respective charges.
Judge BRYANT concurring in part and dissenting in part.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant-
appellant.
ELMORE, Judge.
Defendant appeals from judgments entered upon jury verdicts
finding him guilty of six counts of first-degree sexual offense,
five counts of statutory rape, and three counts of taking indecent
liberties with a child. After careful consideration, and for the
reasons stated herein, we vacate the six judgments entered on
convictions of first-degree sexual offense, reverse the remainder
of the judgments entered against defendant, and remand for a new
trial on the statutory rape and indecent liberties charges.
A. Indecent Liberties
Lucy testified that defendant's inappropriate conduct began in the summer of 1999, prior to the death of her mother, when she and defendant played a game in which defendant exposed himself to herand she lifted up her shirt for defendant. Lucy testified that later that summer, while spending the night with defendant and Sharlena in their home, she was lying on the sofa in the living room when defendant told her to lay down, got on top of her, pulled down his shorts, moved her nightgown and underwear to the side, and “tried to stick his private part into [her].” Lucy testified that no penetration occurred on this occasion because “[she] kept scooting up the couch so he wouldn't.” Lucy testified that she did not tell anyone about either of these incidents.
Lucy also testified that on one occasion during the summer of 1999, she and her younger sister D.D. (Debbie), then eight years old, were about to go swimming when defendant called them into his bedroom. Defendant, who was sitting on the bed with a towel wrapped around his waist, kissed Lucy and Debbie while masturbating. Defendant then laid down on the bed, removed the towel, and told Lucy to sit on top of him. She complied, and they simulated having sex, although defendant did not move Lucy's bathing suit out of the way. Debbie testified at trial and corroborated Lucy's testimony regarding this incident, as well as testifying that she once witnessed defendant put his hand up Lucy's shirt while they were watching a pornographic movie.
B. Rape
Lucy further testified that she and defendant had sexual intercourse a total of thirty-two times. The first incident of possible penetration happened in the living room during an evening in December 1999 when Lucy was staying with defendant and Sharlenabecause her mother was in the hospital. Sharlena was not at home that evening and at the time defendant was twenty-four years old while Lucy had just turned twelve. Lucy said that while her younger brother and sister were in another room,
[defendant] told me to lay down. And I was at the edge of the couch and he told me to lay down and he tried it again. And as he was trying he stuck it _ he almost did, and it was hurting so I was scooting on the couch and then I ran out of the room.
Following this incident in the living room, and later the same evening, defendant came into Lucy's room that she shared with Debbie and Sharlena's three-year-old son C.D. (Caleb). All three children were now asleep, but defendant awakened Lucy and told her to lay down on the couch in Caleb's room.
LUCY: [A]nd he did it.
. . .
STATE: And what do you mean when you say “he
did it”?
LUCY: He had sex with me.
STATE: Did any of his body ever enter any of
your body?
LUCY: Yes, sir.
STATE: Please tell the ladies and gentlemen of
the jury when you say he had sex with you,
what do you mean? What did he do?
LUCY: He stuck his private part into mine.
STATE: Into your private part?
LUCY: Yes.
. . .
STATE: And that was the first time y'all
actually had sex; is that right?
LUCY: Yes, sir.
Lucy testified that the next time she remembered that she had
sex with defendant it took place in the living room, and that about
half the time the two engaged in sex, “about fifteen times,” it
occurred in the living room, when Sharlena was “usually in her room
asleep or gone to work.”
STATE: Tell _ please tell the jury anything
you remember about having sex with [defendant]
in the living room. Do you remember where in
the living room it was?
LUCY: Most of the time it was on the couch and
then sometimes on the floor.
STATE: Most of the time on the couch?
LUCY: (Nodded affirmatively.)
. . .
STATE: Do you remember any of the times that
were on the couch specifically?
LUCY: Just one time I can remember.
STATE: That you remember specifically?
LUCY: Yes, sir.
STATE: Okay. Why do you remember that time?
LUCY: (Shrugged shoulders.) I don't know.
STATE: You just do?
LUCY: Yes sir.
. . .
STATE: Were there any other times that you all
had sex on the couch in the living room?
LUCY: Not that I can remember.
STATE: Do you remember having sex in the
living room any other times at all?
LUCY: Yes, sir.
Lucy also testified that immediately following a sex act
involving a screwdriver, she and defendant had intercourse.
Further, she testified of one specific incident of sex with
defendant on the floor of the room she shared with Caleb. This
incident was distinctive in part due to the fact that Sharlena
nearly saw them in the act.
C. Sexual Offense
Lucy testified to four separate occasions in which defendant
penetrated her vagina with a broom, a cucumber, a hairbrush, and a
screwdriver, respectively. Each of these incidents occurred on
different days, each while Lucy was twelve. She said defendant
inserted the broom because “[h]e said he wanted to see how far it
would go[;]” that he inserted the hairbrush “[t]o make him hard[;]”
and that defendant “told [her] to play with [her]self” with the
screwdriver. Lucy testified that almost every time they had sex
fellatio was also involved, and that on one occasion defendant
partially inserted his penis into her anus.
STATE: Other than the times that you have
described that [defendant] had sex with you,
put his private in your private or put his
penis in your vagina the times that you have
described, did he ever put his penis in any
other part of your body?
LUCY: Yes, sir.
STATE: What other parts of you body did he put
his penis is [sic]?
LUCY: My mouth and my butt.
STATE: Do you remember how many times he put
his penis in your butt?
LUCY: Only once but it wasn't the whole thing.
. . .
STATE: When did he _ do you recall how many
times he put his penis in your mouth?
LUCY: Almost every time we had sex.
COURT: Say it again.
LUCY: Almost all the time we had sex.
D. Supplemental Evidence
On 5 January 2001, Lucy's neighbor T.B. (Taylor), then twelve,
spent the night with Lucy, who had been living with defendant and
Sharlena since her mother's death in August 2000. Lucy testified
that she fell asleep while watching television on the couch in the
living room with defendant and Taylor. Lucy said that at some
point she was awakened by “sucking noises” and became upset because
she thought defendant was making “[Taylor] suck him like he did
[Lucy].” Taylor testified at trial, and denied performing oral sex
on defendant at any time.
Lucy then went to the home of her aunt, Jannis King, who the
next day overheard her talking to defendant on the telephone and
crying. Ms. King suspected that defendant had been “messing” with
Lucy and shared her suspicions with Lucy's father, who together
with Ms. King, took Lucy to Nash General Hospital to be examined on
7 January 2001.
At Nash General Hospital, Lucy spoke to a nurse, a police
officer, and a victim's advocate. She denied having sex withdefendant to each of them. When questioned as to the denials, Lucy
testified that she did this because she was scared of defendant,
and also because she loved defendant and did not want him to go to
jail. Lucy told the victim's advocate that her father had touched
her inappropriately when she was eight years old, and she told the
police officer that she had had sex before, although she did not
specify with whom. The findings from Lucy's physical examination
were consistent with someone who had engaged in consensual sex.
At trial, three personnel from Lucy's school testified as well
as the officer who investigated her case. A written statement by
Lucy made during the officer's investigation was introduced. The
statement was materially consistent with her trial testimony,
although there was some discrepancy as to whether she and defendant
began having intercourse in the summer of 1999, when Lucy was
eleven, or after she turned twelve in December 1999.
(See footnote 2)
Defendant presented evidence at trial, although he did not
testify. Defendant's wife Sharlena testified that she never worked
at night, that defendant took her to work every day before going to
work himself, and that as a result, defendant was never alone with
Lucy in their home. Sharlena testified that the walls in their
home were very thin and that she was a very light sleeper, suchthat defendant and Lucy could not have had sex in their home
without her being aware of it. Sharlena also testified that the
couch, on which Lucy testified she and defendant first had
intercourse, had been removed from Caleb's bedroom by December
1999. Defendant presented four other witnesses who each testified
that Lucy told them she had never had sex with defendant, as well
as Lucy's friend Taylor, who testified that defendant did not touch
her on 5 January 2001, the night she slept at defendant's house.
E. Result at Trial
After deliberations, the jury returned verdicts of guilty on
all charges. The trial court then found as an aggravating factor
that defendant took advantage of a position of trust or confidence
to commit these offenses and sentenced defendant to consecutive
sentences from the aggravated range on each offense, for a total of
a minimum of 3360 and a maximum of 4131 months imprisonment, or 280
to just over 344 years. From the judgments entered upon these
convictions, defendant now appeals.
(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; or
(2) With another person by force and against the will of the other person . . .
N.C. Gen. Stat. § 14-27.4(a) (2003). Defendant was indicted on six counts of first-degree sexual offense, with each indictment being identical, save the case number, and all bearing the dates of “May 1, 1999 thru December 6, 2000.”
The jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did engage in a sex offense with [Lucy], by force and against the victim's will. This act was in violation of [N.C. Gen. Stat. § 14-27.4(a)].
Each of the six indictments for first-degree sexual offense utilized the short-form indictment language authorized by N.C. Gen. Stat. § 15-144.2(a) to charge defendant with first degree sexual offense, on the theory that the alleged sexual offenses were committed by force and against the victim's will. None of the six indictments for first degree sexual offense utilized the short-form indictment language authorized by N.C. Gen. Stat. § 15-144.2(b) to charge defendant with first degree sexual offense pursuant to N.C. Gen. Stat. § 14-27.4(a)(1), on the theory that the alleged sexualoffenses were committed against a victim under the age of thirteen years old.
Further, our review of the record indicates that the trial court instructed the jury regarding the first degree sexual offense charges on the theory that Lucy was under the age of thirteen at the time of the alleged offenses, not on the theory that the alleged offenses were forcible. Moreover, the State did not present any evidence that the alleged offenses were forcible.
“'It has long been the law of this State that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment.'” State v. Miller, 137 N.C. App. 450, 458, 528 S.E.2d 626, 631 (2000) (holding that jury instructions allowing a conviction pursuant to N.C. Gen. Stat. § 14-27.7A would be different than the crime charged in the indictment, which was an offense against N.C. Gen. Stat. § 14- 27.4(a)(2)) (quoting State v. Williams, 318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986) (dealing with a variance in the indictment and instructions on first-degree rape the Court noted that “[t]he failure of the trial court to submit the case to the jury pursuant to the crime charged in the indictment amounted to a dismissal of that charge and all lesser included offenses.”). Accordingly, we vacate the judgments entered upon each of defendant's six first- degree sexual offense convictions: 01 CRS 09511 through 01 CRS 09515 and 01 CRS 51630.
Our state Constitution and statutes vest defendants with a right to only be convicted of crimes by a unanimous jury. See N.C. Const. art. I, § 24 (“No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.”); N.C. Gen. Stat. § 15A-1237(b) (2003) (“The verdict must be unanimous, and must be returned by the jury in open court.”). “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) (citing In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368 (1970)). Stated differently, the jury must unanimouslyagree to each element that supports the crime charged. Id.; State v. Baldwin, 330 N.C. 446, 454, 412 S.E.2d 31, 36 (1992) (quoting State v. Denning, 316 N.C. 523, 524, 342 S.E.2d 855, 856 (1986)).
When reviewing the indictments, evidence presented, and jury instructions, a court must be satisfied that a jury was unanimous in its verdict as to each element of the crime; otherwise the risk of a nonunanimous verdict arises and the judgment on the verdict may have to be reversed to protect the defendant's rights. See State v. Foust, 311 N.C. 351, 317 S.E.2d 385 (1984), overruled by State v. Diaz, 317 N.C. 545, 555, 346 S.E.2d 488, 495 (1986), overruling abrogated by State v. Hartness, 326 N.C. 561, 565-66, 391 S.E.2d 177, 180 (1990); State v. Lawrence, 165 N.C. App. 548, 599 S.E.2d 87, temp. stay granted, 359 N.C. 73, 603 S.E.2d 885 (2004), disc. review allowed, 359 N.C. 413, ___ S.E.2d ___ (No. 457PA04, filed 6 April 2005); State v. Wiggins, 161 N.C. App. 583, 589 S.E.2d 402 (2003), disc. review denied, 358 N.C. 241, 594 S.E.2d 34 (2004); State v. Holden, 160 N.C. App. 503, 586 S.E.2d 513 (2003), aff'd without precedential value, 359 N.C. 60, 602 S.E.2d 360 (2004); State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428, disc. review denied, 350 N.C. 598, 537 S.E.2d 490 (1999).
Issues regarding a unanimous verdict have been previously raised in many sexual crimes cases. The vast majority of these cases questioned the constitutionality of using disjunctive jury instructions, (See footnote 4) instructions which conceivably allow the jury toconvict a person of a single first-degree sexual offense or a single indecent liberty with a minor without being unanimous as to which prohibited act satisfied the sexual act element, see N.C. Gen. Stat. §§ 14-27.4(a) and 14-27.1(4), or the immoral, improper, or indecent act element, see Hartness, 326 N.C. at 567, 391 S.E.2d at 180-81, of the respective crimes. See, e.g., State v. Carrigan, 161 N.C. App. 256, 589 S.E.2d 134 (2003); State v. Yearwoood, 147 N.C. App. 662, 556 S.E.2d 672 (2001); State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38 (2001); State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794 (2000); State v. Green, 124 N.C. App. 269, 477 S.E.2d 182 (1996); State v. Hughes, 114 N.C. App. 742, 443 S.E.2d 76 (1994); State v. Speller, 102 N.C. App. 697, 404 S.E.2d 15 (1991). Still others have dealt with the question of whether the evidence might support more separate offenses than the number of verdict sheets submitted to the jury, thus creating a risk of lack of unanimity. See, e.g., Lawrence, 165 N.C. App. at 558-60, 599 S.E.2d at 95-96; Wiggins, 161 N.C. App. at 592-93, 589 S.E.2d at 408-09; Holden, 160 N.C. App. at 506-08, 586 S.E.2d at 516-17.
Here, the question presented is whether a risk of a nonunanimous verdict arises in a multiple count offense case where no instruction is given to the jury that they must agree on each incident represented by each verdict sheet and the State presents evidence of a greater number of incidents than there are counts. After reviewing the indictments, evidence, instructions, and verdict sheets, we hold that it does. See Lawrence, 165 N.C. App. at 556, 599 S.E.2d at 94; Holden, 160 N.C. App. at 506-08, 586 S.E.2d at 516-17; see also Wiggins, 161 N.C. App. at 592-93, 589 S.E.2d at 408-09.
From our Supreme Court opinions in Hartness and McCarty, to this Court's opinions in Petty, Holden, Wiggins, and Lawrence, no Court has determined that permitting alternative sexual acts to serve as the basis for a single criminal offense_the permissible disjunctive instruction_also obviates the requirement that the jury unanimously find distinct and separate sexual incidents supporting however many counts of the same offense are presented to them.
We note that our Supreme Court's determination that first-degree sexual offense is a single wrong for unanimity purposes requires us to conclude that charging a defendant with a separate count of first-degree sexual offense for each alternative sexual act performed in a single transaction would result in a multiplicious indictment. If the defendant engages in alternative sexual acts in separate transactions, however, each separate transaction may properly form the basis for charging the defendant with a separate count of first-degree sexual offense.
Petty, 132 N.C. App. at 463, 512 S.E.2d at 435. Thus, this Court, for issues of unanimity, recognizes that multiple counts of the same offense cannot arise from one criminal transaction, only from “separate transactions,” or incidents. This presents two avenues of concern for our question of whether the jury was unanimous: one, being able to distinguish separate incidents from that of mere alternative acts, see Lawrence, 165 N.C. App. at 556-62, 599 S.E.2d94-97, and two, a determination of whether the number of incidents or transactions of a given offense presented by the evidence matches the number of counts charged. See Wiggins, 161 N.C. App. at 592-93, 589 S.E.2d at 408-09.
By way of example, consider a defendant that is charged with four counts of indecent liberties with a minor. The State presents evidence of several separate occasions of indecent liberties, but on one occasion the defendant fondled the child and also took pornographic pictures of her. See State v. Kistle, 59 N.C. App. 724, 727, 297 S.E.2d 626, 628 (1982) (holding that taking pictures of a child in a sexually provocative pose is the evil the statute sought to protect against). Without some guidance from the trial court in its instructions, we are not convinced that the jury will not decide defendant is guilty of two “counts” of indecent liberties, sexual fondling and pornographic pictures, when only one offense was committed with two alternative acts forming the element of an immoral act. Likewise, if the number of clearly separate incidents of indecent liberties presented by the State is six, but the jury is given four identical verdict sheets with no specification of which sheet relates to which incident, then a unanimity issue arises. Neither of these concerns are presented in a case that involves only one count of first-degree sexual offense or indecent liberties.
Notably then, the unanimity of a verdict is jeopardized in multiple count trials for first-degree sexual offense, indecent liberties, and first-degree rape if more incidents of the offensesare presented than the number charged, and the jury receives no guidance from the trial court or indication from the State as to which offenses are to be considered for which verdict sheets. See Lawrence, 165 N.C. App. at 556-62, 599 S.E.2d at 94-97; Wiggins, 161 N.C. App. at 592-93, 589 S.E.2d at 408-09 (where evidence presents an equal number of incidents as the number of counts then no risk of a nonunanimous verdict is created).
A review of our case law demonstrates potentially how easily a jury unanimity issue can be avoided in multiple count sexual crime cases. After noting that the defendant is charged with multiple counts, simply instructing the jury that for each count of a specific offense they must unanimously find that the State has proven a separate and distinct transaction or occurrence would remove any risk of a nonunanimous verdict. This Court's discussion in Lawrence, 165 N.C. App. at 559-60, 599 S.E.2d at 95-96, also indicates several ways in which a defendant's right to a unanimous jury verdict can be secured. Id. at 559, 599 S.E.2d at 96 (“[W]hen there is evidence of a greater number of separate criminal offenses than the number of counts submitted to the jury, either the State must elect one offense per charge, or the trial court must instruct the jury that they are required to agree unanimously on the offense committed.”) (emphasis in original).
In Petty, the defendant was found guilty of two counts of indecent liberties, one count of attempted first-degree sexual offense, and one count of first-degree sexual offense. However, no unanimity issue was presented by the multiple counts because theState specified the separate and distinct time frame associated with each offense. See Petty, 132 N.C. App. at 458, 512 S.E.2d at 432.
Also facing multiple counts, and absent an instruction on being unanimous as to which incidents supported the verdicts, this Court in Wiggins was able to match the number of incidents of sexual offense and rape found in the evidence with the same number of counts of sexual offense and rape presented to the jury. The number of incidents presented coincided with the number of counts, and when that occurs the risk that the jury was not unanimous does not arise. Wiggins, 161 N.C. App. at 592-93, 589 S.E.2d at 408-09.
Accordingly, with these methods of prevention or correction in mind, we undertake a review of the record in the case sub judice to determine whether a risk of a nonunanimous jury verdict arose.
Foremost, it is evident from the record and transcripts that no method was employed by either the trial court or State to specify which incidents of rape or indecent liberties were the basis of the indictments and verdicts. The indictments were short- form indictments, all bearing the same 18 month time frame, all lacking any language linking them to any one incident. Likewise, the verdict forms were all identical, all without any indication as to which offense, other than the case number, the verdict form related. Finally, the jury instructions do not reveal any guidance offered by the trial court regarding the jury's need to unanimously agree on which three incidents of indecent liberties and which five incidents of rape served the basis of their eight verdicts. In its instructions the trial court only noted that defendant “has been accused of three counts of taking an indecent liberty with a child” and “has also been charged with five counts of first degree rape” before explaining the elements of the respective crimes. Then, in explaining the unanimity requirement, the court simply stated: “I instruct you that a verdict is not a verdict until all twelve jurors agree unanimously as to what your decision shall be. You may not render a verdict by a majority vote.” There was thus no instruction 1) on the need for unanimity on each specific sexual incident, 2) not to return more than one verdict based on generic testimony (See footnote 5) of numerous other incidents, and 3) on the need to notconsider various sex acts occurring in one incident as separate counts of the same criminal offense, but only as an alternate means of establishing the sex act necessary for one count. See Lawrence, 165 N.C. App. at 559-60, 599 S.E.2d at 95-96.
Since there was no instruction by the trial court or election by the State from which we can determine that the jury necessarily unanimously agreed on separate transactions for this multiple count case, we must review the evidence and determine if it aligns with the number of counts. See Wiggins, 161 N.C. App. at 593, 589 S.E.2d at 409.
B. Review of evidence for incidents of indecent liberties
Defendant was charged with three counts of taking indecent liberties with a minor.
A person is guilty of taking indecent liberties with children if . . . he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child . . . 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 . . .
N.C. Gen. Stat. § 14-202.1(a) (2003). While some action on the part of the defendant is necessary, what acts are immoral, improper, or indecent is not statutorily defined. [T]he crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts. The evil the legislature sought to prevent in this context was the defendant's performance of any immoral, improper, or indecent act in the presence of a child “for the purpose of arousing or gratifying sexual desire.” Defendant's purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.
Hartness, 326 N.C. at 567, 391 S.E.2d at 180. Further, indecent liberties do not merge with or are not lesser included offenses of sexual offense or rape; evidence of one incident of rape or sexual offense may support a conviction for indecent liberties as well. State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988) (sexual offense); State v. Manley, 95 N.C. App. 213, 381 S.E.2d 900 (sexual offense), disc. review denied, 325 N.C. 712, 388 S.E.2d 467 (1989); State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989) (rape); State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119 (1988) (rape), cert. denied, 324 N.C. 544, 380 S.E.2d 772 (1989).
Defendant was charged with three counts of indecent liberties, yet the State ended up presenting evidence of more than three incidents of indecent liberties. Indeed, there was: 1) the incident where defendant exposed himself, 2) the incident on the couch in the living room where defendant pushed aside Lucy's nightgown and tried to have sex with her, and 3) the incident in which defendant simulated having sex with Lucy while she was wearing a bathing suit. Prior to deliberations, the State made no election that these three incidents were the basis of defendant's three charges, but on appeal argue as much. We do not disagree that these incidents do support the charges, but cannot also overlook the fact that there was evidence of numerous incidents of rape as well as multiple incidents of sexual offense in the first degree. There was also evidence of at least one additional isolated incident of an immoral act standing by itself: Debbie's testimony that defendant stuck his hand up Lucy's shirt while they were watching a pornographic film. If several jurors in voting guilty to three counts of indecent liberties were relying on one, two, or even more incidents where rape or sexual offense occurred, while others focused on the three incidents the State suggests or some combination altogether different, all of the incidents would have supported a finding of guilty but potentially none of the jurors were unanimous in which incidents supported which verdicts. See Lawrence, 165 N.C. App. at 561-63, 599 S.E.2d at 97-98.
Further, there is no way to tell that the jury did not incorrectly decide that alternative acts during one sexual incident supported multiple counts of the crime charged. The incident of simulated sex on the bed where both girls were wearing their bathing suits contained potentially three immoral acts: defendant's masturbating in front of Lucy, his kissing her under the circumstances, and the simulated sex itself.
With no instruction from the trial court or election by the State, we are not convinced that the risk of a nonunanimous verdict was avoided in this case. According to our appellate decisions, during the eighteen month span that the State presented evidenceon, the jury could have found defendant guilty of more than fifteen counts of indecent liberties with a minor. Since he was charged with only three, we cannot tell from the record or evidence presented which three the jury found him guilty of and therefore must reverse judgments 01 CRS 09508, 01 CRS 09509, and 01 CRS 09510.
C. Review of evidence for first-degree rape
“A person is guilty of rape in the first degree if the person engages in vaginal intercourse . . . [w]ith a victim who is a child under the age of 13 years . . . .” N.C. Gen. Stat. § 14-27.2(a)(1) (2003). It has long been determined that rape is not a continuous offense, and therefore each incident of intercourse is a separate offense. State v. Small, 31 N.C. App. 556, 559, 230 S.E.2d 425, 427 (1976), disc. review denied, 291 N.C. 715, 232 S.E.2d 207 (1977); State v. Owen, 133 N.C. App. 543, 551-52, 516 S.E.2d 159, 165 (1999). To constitute intercourse, there only needs to be “[e]vidence of the slightest penetration of the female sex organ by the male sex organ . . . .” Owen, 133 N.C. at 551-52, 516 S.E.2d at 165 (quoting State v. Midyette, 87 N.C. App. 199, 201, 360 S.E.2d 507, 508 (1987)).
Defendant was charged with five counts of first-degree rape on the basis of the victim's age. On appeal, the State argues that there were five incidents of rape: 1) one of partial penetration on the couch in the living room, and 2) another incident of penetration following that night on the couch in Caleb's room; 3) an additional specific incident of sex on the couch in the livingroom; 4) sex after the incident with the screwdriver; and 5) one incident of sex on the floor in Caleb's room, the incident which Sharlena almost witnessed. Again, we do not disagree with these incidents supporting five counts of rape; but there is still ambiguity in which incidents support which verdicts.
First, the State overlooks the fact that Lucy testified she and defendant had intercourse thirty-two times. Without more, this testimony does not support thirty-two counts but indeed does support one count of rape, under the theory of generic testimony. See supra, n.5. Further, the jury was not told that they could find only one count from this testimony. Some of the jurors may have relied on this testimony in determining the number of incidents of rape, some may not have. Second, despite testimony that the dates in Lucy's written statement were inaccurate, her statement placed the first incident of sex at an earlier date, summer of 1999, rather than the first descriptive incident in December 1999. As such, the jury may have found Lucy's statement supported evidence of a separate count of rape not included in the State's calculations. Third, at trial, while the State offered no indication as to which incidents of rape supported the five counts, it did reference the occasion defendant had intercourse with Lucy on the couch in Caleb's room as “the first time [the two] actually had sex.” If the State represented to the jury that that incident was first, on appeal it is now argued as the second incident the two had intercourse. By any calculation the risk of a nonunanimous verdict arises. Adding the generic testimony of intercourse occurring thirty-two times and the potential reliance on Lucy's statement into the State's contention on appeal provides the jury with the ability to find defendant guilty of seven counts of rape. Following the State's argument at trial may actually give rise to five counts of rape, but only if the generic testimony is included as one and the characterized “partial penetration” on the couch in the living room and statement that sex occurred in summer of 1999 are not. It remains evident, however, that absent any additional instruction, we cannot be assured there was no ambiguity or nonunanimity in the verdict. See Lawrence, 165 N.C. App. at 563, 599 S.E.2d at 98; Wiggins, 161 N.C. App. at 592-93, 589 S.E.2d at 408-09. As such, we reverse defendant's remaining convictions of rape: 01 CRS 09516, 01 CRS 09517, 01 CRS 09518, 01 CRS 09520, and 01 CRS 51631.
Vacated in part; Reversed in part; remanded.
Judge GEER concurs.
Judge Bryant concurs in part and dissents in part.
BRYANT, Judge, concurring in part and dissenting in part.
I concur in the portion of the majority opinion vacating the
judgment entered in the convictions for First Degree Sexual Offense
as I agree the variance between the indictments and the evidence is
fatal.
However, I strongly disagree and therefore dissent from the
majority opinion remanding for a new trial the five counts of first
degree rape and three counts of taking indecent liberties with a
minor. The majority relies almost solely on State v. Gary Lee
Lawrence, Jr., 165 N.C. App. 548, 599 S.E.2d 87 (2004), stay
granted, 359 N.C. 73, 603 S.E.2d 885 (2004) and disc. review
granted, 359 N.C.413, (Apr. 6, 2005) (No. 457PA04) and State v.
Holden, 160 N.C. App. 503, 506-07, 586 S.E.2d 513, 516 (2003),
aff'd without precedential value, 359 N.C. 60, 602 S.E.2d 360
(2004), a major case upon which Lawrence relies. Considering thecurrent posture of those two cases, and for the reasons which
follow, I respectfully dissent.
There is a critical difference between the line of cases represented by Diaz and Hartness.
The [Diaz] line establishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. The [Hartness] line establishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which willsatisfy an element of the offense, the requirement of unanimity is satisfied.
State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991)(emphasis supplied).
In Hartness the Supreme Court made clear that the reasoning of Diaz, a drug trafficking case, did not apply to cases involving indecent liberties. Hartness, 326 N.C. at 564, 391 S.E.2d at 179. Sex offense and indecent liberties cases involve situations in which a single wrong can be established using various alternative acts such that a danger of lack of unanimity does not arise. Indeed, in the instant case the majority opinion acknowledges the long-standing line of cases in which jurors were “conceivably allow[ed][ ] to convict a person of a single first degree sexual offense or a single indecent liberty with a minor without being unanimous as to which prohibited act satisfied the sexual act element . . . or the immoral, improper or indecent act element.”
Furthermore, our Supreme Court has expressly determined that disjunctive jury instructions do not risk nonunanimous verdicts in first- degree sexual offense [and taking indecent liberties] cases. State v. McCarty, 326 N.C. 782, 784, 392 S.E.2d 359, 360 (1990) (upholding jury instructions that defendant could be found guilty of first degree sexual offense “if [the jury] found [the] defendant [had] engaged in either fellatio or vaginal penetration”)
State v. Petty, 132 N.C. App. 453, 462, 512 S.E.2d 428, 434 (1999). See also State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603 (2002); State v. Yearwood, 147 N.C. App. 662, 556 S.E.2d 672 (2001). Many of the above-referenced cases discuss the “gravamen” or “gist” of the statutes involved. The gravamen of the indecent liberties statute (N.C.G.S. § 14-202.1) is to criminalize the performance of a sexual act with a child.
The evil the legislature sought to prevent in this context was the defendant's performance of any immoral, improper, or indecent act in the presence of a child 'for the purpose of arousing or gratifying sexual desire.' Defendant's purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.
Hartness, 326 N.C. at 567, 391 S.E.2d at 180. In other words, the particular act or conduct is not the gravamen of the offense, but only one of several alternative ways to establish a single wrong. The indecent liberties statute proscribes “any immoral, improper or indecent liberties.” Therefore, “even if some jurors found that the defendant engaged in one kind of sexual misconduct, while others found that he engaged in another, 'the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of any immoral, improper, or indecent liberties.'” State v. Lyons at 305-06, 412 S.E.2d at 313.
In the instant case defendant was charged and convicted by a jury of inter alia, three counts of Taking Indecent Liberties with a Minor. At trial the victim testified to three specific acts which constituted Taking Indecent Liberties with a Minor: (1) “the game” where defendant exposed his private parts and victim lifted her shirt; (2) where defendant touched his private part to the victim's private part; and (3) where defendant masturbated in front of victim and her sister. The three acts testified to by thevictim were the three acts the jury relied upon in reaching their guilty verdicts as to Taking Indecent Liberties. While it is not readily apparent from the record, the majority opinion mentions that some jurors may have relied upon a fourth act -- defendant's hand under the victim's shirt -- as a basis for their verdict. Regardless, such reliance does not present a unanimity problem. As our case law clearly holds, where the jury found sexual conduct which constitutes an immoral, improper or indecent act, such is sufficient for a unanimous verdict of the whole jury. Lyons at 305-06, 412 S.E.2d at 313. Therefore, with respect to the convictions of Taking Indecent Liberties, as in Hartness, I would find “[t]he risk of a nonunanimous verdict does not arise in cases such as the one at bar because the statute proscribing indecent liberties does not list, as elements of the offense, discrete criminal activities in the disjunctive. . . .” Hartness, 326 N.C. at 567, 391 S.E.2d at 179.
The majority also states that because there were multiple incidences of rape, the jury could have used such incidences to support a conviction of indecent liberties, and then further states that because there was “no instruction from the trial court or election by the State [they, (the majority) were] not convinced that the risk of a nonunanimous verdict was avoided in this case.” This type of analysis the majority puts forth sua sponte on appeal is troubling because it extends the concept of unanimity far beyond what the law requires and beyond what is reasonable for child sexual abuse cases in North Carolina. No election by the state norfurther instruction by the trial court is required under our law. Therefore, failure to further instruct the jury or to have the state elect which incidences to use to support the charges of Taking Indecent Liberties is not error, and cannot serve as the basis for overturning a unanimous jury verdict.
Moreover, defendant in the instant case raises the unanimity argument out of thin air. There was no objection at trial because nothing objectionable occurred. The evidence was presented. The jury was instructed on all issues, including unanimity (See footnote 7) . There were no questions or other indications from the jury to suggest any confusion as to their duty in the trial. The jury deliberated and reached a decision on all counts submitted to them in less than 1 and 1/2 hours. Upon return of the verdicts, all jurors indicated assent to their verdict. In fact, all jurors were polled individually, the charges read to them using the applicable CRS number, and each juror affirmed their unanimous verdict in open court, as to each charge submitted.
Clearly, the verdicts in this case do not raise a danger of lack of unanimity. Is there any rational basis upon which the jury could have found defendant committed one act of rape but not another? The defendant's defense was simply “I did not do it.” In the instant case, where nothing occurred during the course of trial nor during jury deliberations to raise a concern, where is the showing of error in the court's instructions or a lack of unanimity? The courts properly presume that jurors pay close attention to the instructions of the trial judge in criminal cases and that they “undertake to understand, comprehend, and follow the instructions as given.” State v. Nicholson, 355 N.C. 1, 60, 558 S.E.2d 109, 148, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002) (citation omitted). As our Supreme Court has stated, “these instructions, when read as a whole, required a verdict of not guilty if all twelve jurors were not satisfied beyond a reasonable doubt that the defendant engaged in an unlawful sexual act. . . [and there is] nothing in the record indicat[ing] any confusion, misunderstanding, or disagreement among the members of the jury which would indicate a lack of unanimity.” Hartness, 326 N.C. at 565, 391 S.E.2d at 179.
As a practical matter, albeit subject to concerns of invading the province of the jury, I agree with the majority that in cases involving multiple acts of child sexual assault the better practice might be for the state to draft indictments and use verdict sheets which specify the act that is the basis for the charge. However, and most importantly, under our law, failure to do so is not reversible error.
[Our] statutes do not specify what constitutes a proper verdict sheet, . . . [n]or have our Courts required the verdict forms to match the specificity expected of the indictment.” State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240-241 (2002). A verdict is deemed sufficient if it “can be properly understood by reference to the indictment, evidence and jury instructions.”
State v. Connard, 81 N.C. App. 327, 336, 344 S.E.2d 568, 574 (1986), aff'd, 319 N.C. 392, 354 S.E.2d 238 (1987) (per curiam).
In the instant case defendant has failed to show a lack of unanimity in the jury verdicts. There must be more than a “possibility of a non-unanimous verdict” to overturn a unanimous jury verdict. We cannot decide cases based on speculation of what might have been. Perhaps the greatest danger posed by the majority opinion is that it would allow a convicted defendant to speculate on appeal, as to what a jury might have done during the course of deliberations at trial and with no indication the jury struggled with unanimity issues, grant defendant a new trial based on speculation. The burden is on defendant to show prejudicial error in order to have his conviction reversed and a new trial granted. Here, the evidence of record shows the jury was instructed on the law by the trial court, the jury was presented with a total of 14 separate verdicts sheets as to three specific types of sexual crimes, the jury had no questions or concerns during the course of deliberations, and in a fairly short time the jury convicted defendant in unanimous verdicts.
In my opinion, this defendant received a fair trial, free from prejudicial error as to his convictions of Taking Indecent Liberties with a Minor and First Degree Statutory Rape rendered by a unanimous jury in open court.
Footnote: 1
Footnote: 2
Footnote: 3
Footnote: 4
Footnote: 5
However, there is no apparent statutory or
common law authority that would permit the
return of more than one indictment based on
the same generic testimony. That is, there
are no cases upholding two or more
convictions, all based on generic testimony
that, e.g., “he sexually assaulted me at least
once a week for several months.”
Lawrence, 165 N.C. App. at 557, 599 S.E.2d at 94. Nonetheless,
generic evidence is admissible and can support conviction on asingle count of rape or sexual offense. Wiggins, 161 N.C. App. at
593, 589 S.E.2d at 409.
Footnote: 6
Footnote: 7
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