State v Thomas, (05-480) 11/15/2005

The State's evidence tended to show that defendant is the cousin of S.C.'s mother and spent a single night in the mother's residence “somewhere around the middle of December” 2003. During the visit, defendant, who was at least thirty years of age, licked seven-year-old S.C.'s vagina and displayed his penis to her in her bedroom while her mother was asleep in another room. S.C., who called the urethea or vagina her “middle spot[,]” testified thatshe was awakened by “Walt licking my middle spot” with his tongue. S.C. identified defendant in court as Walt. After S.C. told him to stop three times, defendant “stopped and he went back to bed.” S.C. went to her mother's room and slept in her bed. S.C. later told police that defendant “showed me his ding dong. He got his hand and got his ding dong.” S.C. testified she knew what a “ding dong” was, and knew that males had one and females did not. She also testified that what she told the police about defendant showing her his “ding dong” was “[t]rue.”
On 21 October 2004, a jury found defendant guilty of first- degree sexual offense against a child under thirteen years of age and taking indecent liberties with a child. The trial court consolidated the offenses for judgment and sentenced defendant to an active prison term of 307 to 378 months. Defendant appeals.

    Defendant argues on appeal that the trial court's denial of his request for a special verdict form subjected him to double jeopardy and violated his right of due process, inasmuch as thejury could have found him guilty of both statutory sexual offense and taking indecent liberties based upon the single act of licking S.C.'s vagina.
    While acknowledging the prior decisions of the North Carolina Supreme Court and this Court and which contradict his position, he “asks this Court to hold that the failure of the jury to specifically find beyond a reasonable doubt what sexual act or indecent act was committed is a violation of the due process guarantee contained in the Fourteenth Amendment, U.S. Constitution, and Art. I, [§§] 19, 22, 23 and 24, N.C. Constitution.” Defendant cites the United States Supreme Court's decision in Blakely v. Washington, in support of his due process claim. 542 U.S. 296, ___, 159 L. Ed. 2d 403, 412 (2004) (“'Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)).
    Although couched in terms of due process, defendant's constitutional argument also touches on the issue of juror unanimity. See N.C. Const. art. I, § 24. “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)).
    Here, however, the evidence showed only a single act bydefendant, i.e., cunnilingus, that would constitute a first-degree sexual offense. Inasmuch as defendant was charged with single counts of sexual offense and indecent liberties arising from a single incident, his constitutional right to a unanimous jury was not infringed. State v. Brewer, __ N.C. App. __, __, 615 S.E.2d 360, 364 (2005). Moreover, it is well established that “[u]sing the same underlying act to support convictions for both first-degree sexual offense and indecent liberties does not violate defendant's constitutional protection against double jeopardy.” Id. at __, 615 S.E.2d at 365 (citing State v. Manley, 95 N.C. App. 213, 217, 381 S.E.2d 900, 902, disc. rev. denied, 325 N.C. 712, 388 S.E.2d 467 (1989)). “Because indecent liberties does not merge with and is not a lesser included offense of first-degree sexual offense, the evidence presented in this case on cunnilingus may also support a conviction for indecent liberties.” Id.
    We further find the lack of a special verdict form on the indecent liberties charge did not violate defendant's right to due process. The precise indecent act committed by the defendant in the child's presence is not an essential element of the crime of taking indecent liberties with a child, see N.C. Gen. Stat. § 14- 201.1 (2004). See State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990). As our Supreme Court explained in Hartness:
        [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.

326 N.C. at 567, 391 S.E.2d at 180 (quotation omitted). Here, in finding defendant guilty of a statutory sexual offense, the jury unanimously found that he performed cunnilingus upon S.C. As noted above, this act was sufficient to sustain his conviction for taking indecent liberties with a child. The fact that the jury could also have found defendant guilty of indecent liberties based upon the act of displaying his “ding dong” in S.C.'s presence does not offend the constitution. Id. at 565, 391 S.E.2d at 179 (“Even if we assume that some jurors found that one type of sexual conduct occurred and others found that another transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of 'any immoral, improper, or indecent liberties.'”). Nothing in Blakely alters our conclusion. The assignment of error is overruled.

Defendant next claims the trial court erred in denying his motion to dismiss at the conclusion of the State's evidence. He avers that S.C.'s testimony was insufficient to satisfy the State's burden of proof, in light of the additional evidence that she did not raise her allegations against defendant until her mother discovered her masturbating. Defendant further notes that S.C.'s “testimony . . . was at times unresponsive[,]” and that she answered some of the prosecutor's questions in writing, rather than orally. It is well established that the testimony of a child victim of a sexual offense is sufficient to submit the charge to the jury and sustain a conviction. See State v. Stancil, 146 N.C. App. 234, 245, 552 S.E.2d 212, 218 (2001) (“Our courts have consistently held an alleged victim's testimony is sufficient to establish that the accused committed a completed act of cunnilingus by placing his tongue on her pubic area.”), aff'd, 355 N.C. 266, 559 S.E.2d 788 (2003); see also State v. Watkins, 318 N.C. 498, 501, 349 S.E.2d 564, 565 (1986) (finding seven-year-old child's testimony sufficient evidence of penetration to support a conviction of first-degree sexual offense). It is the jury's role to assess the weight and credibility of a witness's testimony, unless such “testimony is inherently incredible and in conflict with the physical conditions established by the State's own evidence.” State v. Begley, 72 N.C. App. 37, 43, 323 S.E.2d 56, 60 (1984). “Only when the testimony is inherently incredible will this Court find the evidence insufficient to support a jury verdict.” State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619-20 (1988) (citing State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967)). Neither S.C.'s delay in disclosing defendant's actions to her mother nor the circumstances of her disclosure rendered her testimony “incredible.” Id. Such issues, as well as any gaps or inconsistencies in her testimony, were for the jury to consider. See State v. Turner, 305 N.C. 356, 362, 289 S.E.2d 368, 372 (1982). This assignment of error is overruled.