STATE OF NORTH CAROLINA v. KENNETH WILLIAM BATES
NO. COA04-777-2
Filed: 3 October 2006
1. Criminal Law_unanimous verdicts_indecent liberties--more indictments than verdicts
The fact that the jury may have considered evidence of ten counts of indecent liberties to
arrive at seven guilty verdicts does not violate defendant's right to a unanimous verdict under State
v. Lawrence, 360 N.C. 368.
2. Criminal Law_unanimous verdicts_first-degree sexual offenses_verdicts matched to
specific incidents
Defendant's right to unanimous verdicts as to convictions for first-degree sexual offense was
not violated where it was possible to match the verdict of guilty with specific incidents presented in
evidence and in the trial court's instructions. The factors considered included the evidence, the
indictments, the jury charge, and the verdict sheets.
Upon remand from the North Carolina Supreme Court, appeal by
defendant from judgments entered 31 October 2003 and 4 November
2003 by Judge W. Allen Cobb, Jr. in Wayne County Superior Court.
Heard in the Court of Appeals 21 March 2005.
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 appealed
from judgment imposing two consecutive sentences of not less than192 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. In State v. Bates, 172 N.C. App. 27, 38-40, 616 S.E.2d
280, 288-89 (2005), we vacated the defendant's six convictions of
first-degree sexual offense and seven convictions of indecent
liberties with a minor and granted him a new trial on the grounds
that the trial court had denied him his right to a unanimous jury
verdict guaranteed him by N.C. Const. art. 1, § 24. See also N.C.
Gen. Stat. § 15A-1237(b)(2005).
The State petitioned the Supreme Court for discretionary
review. By order dated 3 July 2006, the Supreme Court remanded the
case to this Court for reconsideration in light of its decision in
State v. Lawrence, 360 N.C. 368, 627 S.E.2d 609 (2006). After
reconsideration, we conclude there was no error in defendant's
trial.
On appeal, defendant argued five assignments of error. As to
the first three assignments of error, we held that there was no
error, and these holdings remain unaffected by Lawrence. As his
fourth assignment of error, defendant argued that the trial court
committed plain error by not distinguishing for the jury the
charges against the defendant. This issue was addressed by the
Supreme Court in Lawrence, and we therefore reconsider this
assignment of error in light of that decision. As to defendant's
fifth assignment of error, we did not address the merits because we
granted defendant a new trial based on the fourth assignment of
error. Defendant argued that the trial court committed plain errorby entering judgments and other dispositions which were
inconsistent with the court's rulings and the jury verdicts. On
remand, we now consider this assignment of error on the merits.
The facts of this case have been discussed at length in our
previous opinion and need not be reproduced in their entirety here.
Bates, 172 N.C. App. at 30-32, 616 S.E.2d at 283-84. Evidence at
trial tended to show that the defendant had engaged in a number of
sexual acts with KG, the ten-year-old friend of his stepdaughter.
These acts occurred when KG would spend the night with the
defendant's stepdaughter about every other weekend from December
2002 to March 2003. Conflicting evidence was presented as to the
number and timing of these acts. The defendant was indicted on
eleven counts of first-degree sexual offense, two counts of
attempted first-degree sexual offense, ten counts of indecent
liberties, and ten counts of lewd and lascivious conduct with a
minor. The 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 the 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 appealed.
[1] As directed by the Supreme Court, we first address whether
the trial court erred by not distinguishing for the jury the
charges against the defendant, thereby denying defendant a
unanimous jury verdict, as guaranteed by N.C. Const. art. 1, § 24
and N.C.G.S. § 15A-1237(b) (2005), in light of the Supreme Court's
decision in
Lawrence, 360 N.C. 368, 627 S.E.2d 609. At issue in
Lawrence was:
whether a jury verdict may be unanimous when a
defendant is tried on five counts of statutory
rape and three counts of indecent liberties
with a minor, when the short-form indictments
for each alleged crime are identically worded
and lack specific details distinguishing one
particular incident of a crime from another.
Id. at 372-73, 627 S.E.2d at 611. The Court held that the jury
verdicts were unanimous, but it analyzed separately the charges of
indecent liberties and the charges of first-degree statutory rape.
Id. at 373-75, 627 S.E.2d at 612-13. Thus, we examine the charges
of indecent liberties and the charges of first-degree sexual
offense separately in the present case.
We first address the issue of jury unanimity with respect to
the charges of indecent liberties. Defendant argues that because
he was convicted of a lesser number of counts of indecent liberties
than the number of incidents presented in evidence, and the
indictment and verdict sheets did not match the counts to the
evidence, it is possible that the jury did not agree about which
acts supported the guilty verdict for each count. Thus, defendant
argues, a risk of a nonunanimous verdict was created, which
violated defendant's right to a unanimous verdict. Afterconsidering the Supreme Court's holding in
Lawrence, we must reject
defendant's argument. The Court in
Lawrence held, “a defendant may
be unanimously convicted of indecent liberties even if: (1) the
jurors considered a higher number of incidents of immoral or
indecent behavior than the number of counts charged, and (2) the
indictments lacked specific details to identify the specific
incidents.”
Id. at 375, 627 S.E.2d at 613. This Court has further
interpreted
Lawrence as follows:
“[T]he risk of a nonunanimous verdict does not
arise,” even if the jury “considered a greater
number of incidents than . . . charged in the
indictments,” because “while one juror might
have found some incidents of misconduct and
another juror might have found different
incidents of misconduct, the jury as a whole
found that improper sexual conduct occurred.”
State v. Brigman, 178 N.C. App. 78, 93, ___ S.E.2d ___, ___ (2006)
(citing
Lawrence, 360 N.C. at 375, 627 S.E.2d at 613) (alteration
in original). Thus, defendant Bates' argument is stripped of its
merit. At defendant's trial, evidence was presented of ten
incidents of indecent liberties, and the jury returned guilty
verdicts on only seven counts. The fact that the jury may have
considered evidence of all ten counts to arrive at its unanimous
verdict that defendant was guilty of seven incidents of indecent
liberties does not, under
Lawrence, violate defendant's right to a
unanimous jury verdict. We, therefore, find no error by the trial
court as to defendant's convictions for indecent liberties.
[2] Next we consider the verdicts on the charges of first-
degree sexual offense. Defendant again argues that because he was
convicted of fewer counts of first-degree sexual offense than thenumber of incidents presented in evidence, the jury may not have
agreed about which evidence supported the guilty verdicts for each
count. Defendant argues he was thereby denied a unanimous jury
verdict. Again, we consider the precedent
Lawrence establishes for
this issue.
Lawrence raised the issue of jury unanimity with
respect to charges of first-degree statutory rape, and we note that
the reasoning that applies to first-degree statutory rape is the
same for the similar offense of first-degree sexual offense. In
Lawrence, “defendant was indicted on five counts of statutory rape;
[the victim] testified to five specific incidents of statutory
rape, and five verdicts of guilty were returned to the charge of
statutory rape.”
Lawrence, 360 N.C. at 376, 627 S.E.2d at 613.
Therefore, the court concluded “defendant was unanimously convicted
by the jury.”
Id. The facts in the case before us are not quite
as conclusive as the facts in
Lawrence.
Defendant Bates was indicted on eleven counts of first-degree
sexual offense; evidence was presented of six
(See footnote 1)
to ten incidents of
first-degree sexual offense,
see Bates, 172 N.C. App. at 36-37, 616
S.E.2d at 287, and the jury returned a verdict of guilty on six
charges. Since
Lawrence, this Court heard a case with facts more
similar to the facts in this case, which we decided in anunpublished opinion.
State v. Spencer, 177 N.C. App. 813, 630
S.E.2d 255 (2006). D
efendant Spencer was charged with two counts
of statutory rape and two counts of indecent liberties and was
convicted of only one count of statutory rape and one count of
indecent liberties.
Id. Defendant Spencer argued that he was
denied a unanimous verdict because the verdict sheets did not
differentiate between the two counts for each offense; however,
this Court found no error.
Id. Citing
Lawrence as controlling
precedent, another panel of this Court held: “Under
Wiggins and
Lawrence IV, there is no unanimity problem if it is possible to
match a jury's verdict of guilty with a specific incident after
reviewing the evidence, indictment, jury charge, and verdict
sheets.”
Id. (citing
Lawrence, 360 N.C. 368, 627 S.E.2d 609;
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)). We adopt the analysis
in
Spencer and follow it in the present case. We therefore
consider four factors to determine whether defendant Bates was
denied a unanimous verdict: (1) the evidence; (2) the indictments;
(3) the jury charge; and (4) the verdict sheets.
Factors (1) and (2): Evidence and Indictments
In
Lawrence, the number of counts equaled the number of
incidents presented in evidence, and the Supreme Court found that
the defendant's right to a unanimous verdict had not been violated.
Lawrence, 360 N.C. at 376, 627 S.E.2d at 613. Similarly, in
Wiggins, the number of incidents presented into evidence equaled
the number of counts charged, and this Court found no unanimityproblem.
Wiggins, 161 N.C. App. at 593, 589 S.E.2d at 409. Where
the number of incidents equal the number of indictments, the risk
of a nonunanimous verdict is substantially lower. By contrast,
defendant Bates was charged with eleven counts of first degree
sexual offense, but evidence was presented of only six to ten
incidents.
See Bates, 172 N.C. App. at 36-37, 616 S.E.2d at 287.
In order to determine how to weigh this factor in this case, we
follow the analysis adopted above and consider the overarching
question: whether “it is possible to match a jury's verdict of
guilty with a specific incident.”
Spencer, 177 N.C. App. 813, 630
S.E.2d 255. Thus, we must ask whether the fact that more counts
were charged than the evidence supported tends to make it
impossible to match the jury's verdict with the evidence. Although
it certainly creates more opportunity for confusion, it does not
necessarily make it impossible to match the jury verdict to the
evidence.
Factor (3): Jury Charge/Instructions
In this case, the court instructed the jury separately as to
the eleven counts of first-degree sexual offense and the ten counts
of indecent liberties with a child. The court further instructed
the jury: “[y]ou may not return a verdict until all 12 jurors agree
unanimously as to each charge. You may not render a verdict by
majority vote.” These instructions were adequate to ensure that
the jury understood that it must agree unanimously as to each
verdict on each charge. Because we find the jury instruction
adequately ensured that the jury would match its unanimous verdictswith the charges against the defendant, this factor favors a
finding that the jury verdicts were unanimous in the present case.
Factor (4): Verdict Sheets
The defendant in this case argues that the verdict sheets
submitted to the jury did not contain sufficient detail to link
them with the indictments. In
Wiggins, this Court noted that where
“the verdict sheets . . . identified the . . . offenses only by the
felony charged . . . and their respective case numbers . . . the
verdict sheets did not lack the required degree of specificity
needed for a unanimous verdict if they could be properly understood
by the jury based on the evidence presented at trial.”
Wiggins,
161 N.C. App. at 592-93, 589 S.E.2d at 409. The
Bates verdict
sheets listed each charge separately with a notation of the felony
charged next to each one. Although the verdict sheets in this case
did not contain the case numbers as in
Wiggins, the presentation of
the charges on the verdict sheets was adequate for the jury to
distinguish the charges based on the evidence presented at trial.
Bearing in mind that the question this Court must address is
whether “it is possible to match a jury's verdict of guilty with a
specific incident,”
Spencer, 177 N.C. App. 813, 630 S.E.2d 255,
this Court notes that there are more characteristics about the
Bates verdict sheets that reduce the risk of a nonunanimous
verdict. On the
Bates verdict sheets, the trial court gave date
ranges for the different counts to differentiate the charges for
the jury. The date ranges did not correspond with any specific
evidence at trial; thus, they failed to fully clarify whichincidents corresponded to which charges. Overall, however, we find
that the use of dates reduced the possibility that different jurors
had different acts in mind, and therefore reduced the risk of
nonunanimity. Similarly, the verdict sheets in
Bates differentiated
between some of the counts by including next to the charge the
words “(by cunnilingus)” or “(inserting finger into victim's
vagina),” reducing the risk that the jurors considered different
incidents in reaching their verdict and increasing the likelihood
of unanimity.
Thus, considering all of the foregoing factors and applying
them to the present case, we hold it is possible to match the
jury's verdict of guilty with specific incidents presented in
evidence and in the trial court's instructions. Therefore,
defendant's right to unanimous verdicts as to his convictions of
six counts of first-degree sexual offense was not violated.
By his fifth and final assignment of error, defendant argues
that the judgments in 03 CRS 53259-52 and 03 CRS 53264-52 are
inconsistent with the jury's verdict sheets. After reviewing the
indictments, the verdict sheets, and the court's judgment, we find
no discrepancies and, thus, no merit in defendant's argument.
No Error.
Judges HUDSON and JACKSON concur.
Footnote: 1