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2. Jury--failure to dismiss juror who knew witness--abuse of discretion standard
The trial court did not err in a multiple first-degree statutory sexual offense, double attempted first-degree statutory sexual offense, and multiple taking indecent liberties with a minor case by failing to dismiss one of the jurors when she disclosed during trial that she knew one of the witnesses for the State, because: (1) defendant failed to challenge the juror upon her disclosure at trial; and (2) the determination of whether to dismiss a juror for cause rests in the sound discretion of the trial court, and defendant failed to show any abuse of discretion or prejudice due to the continued service of this juror when the juror stated she believed that she could continue to be fair and impartial to both parties.
3. Indecent Liberties; Sexual Offenses--motion to dismiss--sufficiency of evidence--
generic testimony of child sex abuse victim
The trial court did not err in a multiple first-degree statutory sexual offense, double attempted first-degree statutory sexual offense, and multiple taking indecent liberties with a minor case by denying defendant's motion to dismiss all or some of the charges against him at the close of the State's evidence and at the close of all evidence even though defendant contends the evidence was sufficient to support only those charges where the minor child was able to describe defendant's actions in some detail, because: (1) our Court of Appeals has previously upheld the denial of a motion to dismiss where the evidence consisted of similarly generic testimony of a child sex abuse victim; and (2) defendant gave a statement in which he admitted to touching the minor child's vagina three times, licking it three times, and having the minor child squeeze his penis three times.
4. Constitutional Law--denial of unanimous verdict--sexual offenses
Defendant was denied his right to a unanimous verdict with respect to convictions on six counts of first-degree sexual offense where defendant was charged with eleven counts of that offense; evidence of between four and ten possible instances of first-degree sexual offense was presented at trial; the State did not effectively associate each particular offense or incident with a particular indictment or verdict sheet; the trial court did not explain the need for unanimity on each specific sexual incident; and neither the indictments, jury instructions nor verdict sheets associated a given indictment or verdict sheet with any particular incident.
5. Constitutional Law--denial of unanimous verdict--indecent liberties
Defendant was denied his right to a unanimous verdict with respect to convictions on seven counts of indecent liberties with a minor where defendant was charged with ten counts of taking indecent liberties with a minor; more incidents of indecent liberties were presented at trial than the number charged; evidence presented on charges of first-degree sexual offense could also support convictions for indecent liberties; the trial court gave the pattern jury instruction for indecent liberties with no explanation as to which acts by defendant could support a conviction for indecent liberties; and the jury received no guidance from the trial court and no indication from the State as to which offenses were to be considered for which verdict sheets.
6. Indecent Liberties--multiplicitous indictments--absence of prejudice
Indictments charging defendant with indecent liberties and the alternate crime of lewd and lascivious conduct for each violation of N.C.G.S. § 14-202.1 were multiplicitous, but defendant was not prejudiced because judgment was arrested on each count of defendant's convictions for lewd and lascivious conduct.
7. Constitutional Law--unanimous verdict not denied--attempted sexual offenses
Defendant was not denied his right to a unanimous verdict with respect to convictions on two counts of attempted first-degree sexual offense where defendant was charged with only two counts of this offense and only two instances of this offense were presented to the jury by testimony of the child victim.
Roy Cooper, Attorney General, by Anita LeVeaux, Assistant
Attorney General, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was found guilty by a jury of six counts of first- degree statutory sexual offense, two counts of attempted first- degree statutory sexual offense, seven counts of taking indecent liberties with a minor, and six counts of lewd and lascivious conduct with a minor. Judgment was arrested as to the six counts of lewd and lascivious conduct with a minor. Defendant appeals from judgment imposing two consecutive sentences of not less than 192 months and not more than 240 months of imprisonment and a third consecutive sentence of not less than 125 months and not more than 159 months of imprisonment.
The evidence at defendant's trial tended to show that KG, a ten-year-old child, lived in Fremont, North Carolina in the same neighborhood as defendant, his wife, and her three children from previous marriages. KM, the youngest of defendant's stepchildren, was eight years old at the time of the alleged events, and she was good friends with KG. KG testified that she spent one night every other weekend at defendant's house between December, 2002 and March, 2003. In March, KG told another friend on the school bus that defendant had touched her inappropriately, and the friendinformed a teacher at KG's school. The teacher contacted the school social worker, who notified the Wayne County Department of Social Services (DSS).
Roseanne Diorio, a social worker with DSS, interviewed defendant at his house with his wife present. Defendant said that KG followed him around, wrote him love letters, and always wanted to sit in his lap. He said she did not have a father figure in her life, and he believed she wanted him to play that role. He said KG had made such accusations before, but when he and his wife talked to her about it, she admitted she had lied. He denied all allegations of inappropriate activity. Ms. Diorio also interviewed defendant's wife and her two oldest children, each of whom stated that KG constantly followed defendant around and wrote him love letters. They said KG also wrote love letters to defendant's stepson.
At trial, KG testified that the second time she visited KM's home, defendant called her into the living room, put his hand down the front of her shirt, and touched her chest through her clothes. The following weekend, when she visited defendant's home again, she testified that [h]e done the same thing. He went down my shirt again. That same weekend, KG said she and KM were playing in KM's room when defendant walked in and told KM to go talk to her mother. After KM left the room, KG said defendant was about to pull my pants down, but he heard KM coming back so he stopped. KG said defendant's hands almost went inside her pants. Later, she testified that on that occasion he did actually touch her private with his hand.
On another weekend, defendant told KG to go into the bathroom. Once there, KG testified defendant was pull[ing] my pants down and trying to lick it, but he heard [KM] coming so he didn't get a chance to lick it. Later she testified defendant did actually lick it while they were in the bathroom. She also testified that one night, she and KM were sleeping on the living room floor. KM was asleep, but KG woke up and heard defendant walking into the living room. He came over to her and pulled her pants down to her knees. Then, according to KG, he touched me in the inside. KG testified that defendant had touched her vagina with his hand [l]ike four times and with his mouth [a]bout maybe two times.
KG also testified that she touched defendant's penis on two occasions. Once, KG said she was sitting on the couch when defendant sat down next to me and . . . took my hand and put it down his pants, touching his private. Another time in KM's bedroom, defendant just took my hand and put it down his pants andhe told me to squeeze. In all, KG said she had seen defendant's penis [a]bout six times. When asked if she could say when any of the acts described occurred, KG could only say they happened during the time she was spending the night with KM between December and March.
Detective Tammy Odom of the Wayne County Sheriff's Department investigated the allegations against defendant. During an interview with KG, Detective Odom wrote out a statement for KG in which KG said that on one occasion, defendant reached up and put his hand down my shirt and inside my bra. He started feeling of my chest. KG stated that on another occasion, defendant stuck his hand down my pants and rubbed my private part. He did this for about a minute. After that he pulled his private part out. He grabbed my hand and put it on his private part. He told me to squeeze it. She also stated that the following morning defendant pulled my sweat pants down and my panties. He was bending down to lick my privates when [KM] walked in. In all, KG said in her statement, defendant touched my private part about six times and he has licked my private part about six times. He has made me touch and squeeze his private part about four times. . . [and he] touched my chest one time . . . . Detective Odom also interviewed defendant regarding the allegations. Defendant gave a statement, written by Detective Odom and signed and initialed by defendant, in which he said, in pertinent part,
While [KG] was spending the night on three different times I pulled the head of my penis out and [KG] squeezed it. On three different times I touched [KG] on her vagina, on the inside of her clothes, with my fingers. One of these times I stuck my fingers inside of her vagina because she told me to. I tried to stop once and she wouldn't let me. This happened one time in the living room, one time in [KM]'s room, and one time in the children's bathroom. I have licked [KG]'s vagina three times. This has happened once in the living room, one time in [KM]'s room, and one time in the children's bathroom.
Defendant was subsequently arrested.
While defendant was in jail, Roseanne Diorio interviewed him a second time regarding the allegations. Defendant claimed that Detective Odom tricked him into confessing and had mixed his words up. He stated, however, that KG had once tried to stick her hands down his pants to touch his penis. On another occasion, he said, KG called him into the bathroom and when he got in there she had her pants and underwear pulled down to her knees. When Ms. Diorio asked if he had ever performed oral sex on KG, he stated that it had only happened once and he was really sorry about it. Defendant was charged, in true bills of indictment, with eleven counts of first-degree sexual offense, two counts of attempted first-degree sexual offense, ten counts of taking indecent liberties with a minor, and ten counts of lewd and lascivious conduct with a minor. A jury found him guilty of six counts of first-degree sexual offense, two counts of attempted first-degree sexual offense, seven counts of taking indecent liberties with a minor, and six counts of lewd and lascivious conduct. Judgment was arrested on the six counts of lewd and lascivious conduct. The remaining convictions were consolidated into three judgments for which defendant received two consecutive sentences of not less than 192 months and not more than 240 months of imprisonment and a third consecutive sentence of not less than 125 months and not more than 159 months of imprisonment. Defendant appeals.
03 CRS 53256 First-Degree Sexual Offense New Trial
03 CRS 53257 First-Degree Sexual Offense New Trial
03 CRS 53258 First-Degree Sexual Offense New Trial
03 CRS 53258 First-Degree Sexual Offense New Trial
03 CRS 53259 First-Degree Sexual Offense New Trial
03 CRS 53260 First-Degree Sexual Offense New Trial
03 CRS 53262 Indecent Liberties New Trial
03 CRS 53263 Indecent Liberties New Trial
03 CRS 53264 Indecent Liberties New Trial
03 CRS 53257 Indecent Liberties New Trial
03 CRS 53258 Indecent Liberties New Trial
03 CRS 53259 Indecent Liberties New Trial03 CRS 53260 Indecent Liberties New Trial
03 CRS 53263 Attempted First-Degree Sexual Offense
Remanded for Resentencing
03 CRS 53264 Attempted First-Degree Sexual Offense
Remanded for Resentencing
Judges HUDSON and JACKSON concur.
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