STATE OF NORTH CAROLINA
v
.
Robeson County
Nos. 03 CRS 52537, 52538
LEROY SMITH
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Sonya M. Calloway, for the State.
Brian Michael Aus, for defendant-appellant.
JACKSON, Judge.
On 11 August 2003, Leroy Smith (“defendant”) was indicted on
one count of taking indecent liberties with a child, specifically
H.J., and one count of first-degree sexual offense against H.J.
Both offenses were alleged to have occurred on 1 December 2002. On
the same day, and in a separate indictment, defendant was indicted
on one count of taking indecent liberties with a child,
specifically E.J., and one count of first-degree sexual offense
against E.J. Again, both offenses were alleged to have occurred on
1 December 2002.
H.J. and E.J., children of defendant, lived with their
maternal grandmother and occasionally stayed with defendant at his
house on the weekends. One Sunday in late November 2002, followinga church service, H.J. told his preacher Jerry Strong (“Strong”),
that his father had been touching him. Strong responded to H.J.
that he should talk to his grandmother when they got home. At
defendant's trial in January 2005, both of the alleged victims
testified, along with a social worker, doctor, detective, and the
children's grandmother and preacher. H.J., who was nine years old
at the time of the trial, following a voir dire, testified that
defendant “touched [him] on [his] peter-bug and [his] butt.” H.J.
testified that his “peter-bug” was used to go to the bathroom with,
and that this was the term defendant used when referring to H.J.'s
penis. He stated that while staying at defendant's house for a
weekend, defendant touched his butt with his hand, and that
defendant stuck his finger inside H.J.'s butt. H.J. did not
remember exactly when it happened to him, but stated that it
happened the weekend that he spent with defendant prior to the
Sunday he told his preacher about the incident, and that the
touching had occurred “more than ten” times. H.J. stated that he
had seen defendant also touch E.J. “in her butt” while they were at
defendant's home. Both H.J. and E.J. testified that defendant
watched “nasty movies” with naked people while the children were
staying with him for the weekend.
E.J., who was ten years old at the time of defendant's trial,
testified that defendant “tried to make [her] have sex with him and
he would touch [her] kitty-cat and [her] butt.” E.J. stated that
the incidents occurred at defendant's house, and that he would
stick his finger in her butt. E.J. testified that the purpose ofher “kitty-cat” was for going to the bathroom, “and that's all.”
She stated that defendant touched her “kitty-cat” with his finger,
and that he also penetrated her with his finger. E.J. testified
that the first time defendant touched her she was six or seven
years old, and the last time it occurred was when she was eight or
nine years old. She stated that she first told her grandmother
that defendant “was touching [her] in the wrong place” when she was
seven years old. Similar to H.J.'s testimony, E.J. testified that
the last time defendant touched her was when she saw defendant
prior to the children telling the preacher about the abuse. E.J.
stated that defendant would occasionally joke around with her and
say that he was going to “feel of [her] noosy.” He also would joke
with H.J. by saying that he was going to “feel of [H.J.'s] pee-
bug.” E.J. testified that defendant touched her every time that
she visited him.
H.J. and E.J.'s grandmother, Annie Laura Jones (“Jones”),
testified that in late November 2002, the children told their
preacher that defendant had been touching them, and then on 15
December 2002, the children told her that defendant had been
touching them, and that it had occurred on more than one occasion.
Jones stated that she contacted social services on 17 December 2002
and told them what the children had said. She testified that the
first time the children told her that defendant was touching them
was in the latter part of November 2002, and that they again told
her he had touched them around the first or second week ofDecember. Jones also testified that she heard defendant pick on
E.J. by saying that he was “going to feel of [her] nussy.”
The detective investigating the alleged abuse testified that
defendant admitted to telling the children that he wanted to feel
their “nussy” and “peter-bug” but that he was kidding when he made
those statements. Dr. Laura Gutman (“Gutman”) conducted medical
examinations of both children, and testified that E.J. told her
that defendant had touched her in her vagina or “cat” with his
finger and that it had happened multiple times. E.J. told Gutman
that defendant regularly watched movies with naked people having
sex while the children visited him. Gutman's examination of E.J.
revealed that E.J.'s hymen was consistent with her having had a
penetrating injury, and that something had been inserted into her
vaginal area, breaking her hymen. She stated that E.J.'s injuries
could not have been self-induced, and that E.J. could not have
broken her own hymen. Gutman's physical examination of H.J. showed
signs consistent with a child who had suffered a penetrative anal
trauma. She stated the physical findings from her examination of
H.J. were consistent with his verbal description of defendant's
actions.
On 25 January 2005, following four days of trial, the jury
returned guilty verdicts against defendant on all four counts.
Defendant's convictions for one count of first-degree sexual
offense against H.J. and one count of taking indecent liberties
with a child, with H.J. being the child, were consolidated for
sentencing, and defendant was sentenced to a prison term of 220 to273 months. Defendant's convictions for one count of first-degree
sexual offense against E.J. and one count of taking indecent
liberties with a child, with E.J. being the child, were also
consolidated for sentencing, and defendant was sentenced to a
prison term of 220 to 273 months, to run consecutively with his
sentence for crimes against H.J. Defendant now appeals from his
convictions.
We begin our analysis by noting that defendant only presents
argument for his assignments of error numbered seven through ten.
As defendant has failed to present any argument for assignments of
error numbered one through six, those assignments of error are
deemed abandoned. N.C. R. App. P. 28(b)(6) (2005).
On appeal, defendant's sole argument is that the trial court
denied defendant his right to a unanimous jury verdict by failing
to instruct the jury that it must unanimously find defendant guilty
of a specific criminal transaction before finding him guilty of
first-degree sexual offense and taking indecent liberties with a
child.
At defendant's trial, the trial court instructed the jury on
single charges of first-degree sexual offense and taking indecent
liberties with a child for both H.J. and E.J. The trial court did
not instruct the jury that it must unanimously find that defendant
committed the complained-of acts on or about a specific date.
Defendant did not object to the trial court's jury instructions or
verdict sheets, nor did he request an instruction regarding a
specific date on which the alleged incidents were to have occurred. In addition, defendant did not argue the issue of lack of unanimity
to the trial court. However, we have held that a defendant's right
to a unanimous verdict is not waived by a failure to object at
trial, thus we may address defendant's argument. State v. Wiggins,
161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003), disc. review
denied, 358 N.C. 241, 594 S.E.2d 34 (2004).
Defendant contends that evidence presented at trial tended to
show more incidents of offenses than the number with which
defendant was charged. Defendant argues that the trial court
failed to provide the jury with any guidance that they all had to
agree upon the same date the alleged offense took place in order to
find defendant guilty, thereby creating a risk of a non-unanimous
verdict. Defendant argues that by failing to provide the jury with
a specific date for the alleged offenses, some of the jurors may
have convicted defendant of crimes other than those alleged in the
indictments.
Criminal defendants are entitled to the right to be convicted
only by a unanimous jury verdict. 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) (2005)
(“The verdict must be unanimous, and must be returned by the jury
in open court.”). When a question of jury unanimity is raised, our
duty is to “'examine the verdict, the charge, the jury
instructions, and the evidence to determine whether any ambiguity
as to unanimity has been removed.'” State v. Bates, __ N.C. App.__, __, 616 S.E.2d 280, 287 (2005) (quoting State v. Petty, 132
N.C. App. 453, 461-62, 512 S.E.2d 428, 434 (1999)).
At defendant's trial, both H.J. and E.J. testified that
defendant had touched them and abused them on multiple occasions.
E.J. testified regarding multiple instances of abuse occurring over
multiple years, and stated that defendant did these things to her
every time that she visited him at his house. She stated that the
abuse happened a lot, and that he always did the same things to
her. H.J. also testified that the touching and abuse occurred
during his weekend visitations with defendant. Both children
testified that the abuse occurred the last weekend they stayed with
defendant, which was in the early part of December 2002. Both
children were able to testify and answer questions about the
specific acts that defendant did to them, however neither child
provided specific dates on which the abuse took place.
In order to sustain a conviction for first degree sexual
offense, the State must prove that defendant engaged in a sexual
act “[w]ith 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.” N.C. Gen. Stat. § 14-27.4(a)(1) (2005).
A defendant may be found guilty of taking indecent liberties with
a child, when the State has proven that a defendant,
being 16 years of age or more and at least
five years older than the child in question,
he either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties
with any child of either sex under theage of 16 years 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 of either sex under the
age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (2005). We hold the testimony
provided by both H.J. and E.J., along with that of their
grandmother, preacher, doctor, social worker and others, was
sufficient to support convictions on each of the charges of first-
degree sexual offense and taking indecent liberties.
Defendant was not subjected to multiple counts on each charge
as alleged in his brief, and in fact he was indicted and tried on
sole charges for each offense as they pertained to each child. The
argument put forth by defendant contends that his multiple charges
and the evidence presented at trial were sufficient to create a
risk of a non-unanimous jury verdict. We disagree. To support his
argument, defendant relies on the cases of State v. Gary Lee
Lawrence, Jr., 165 N.C. App. 548, 599 S.E.2d 87 (2004) (G. Lawrence
I), rev'd in part, __ N.C. __, 627 S.E.2d 615 (2006), and State v.
Markeith Rodgers Lawrence, 170 N.C. App. 200, 612 S.E.2d 678 (2005)
(M. Lawrence I), rev'd in part, __ N.C. __, 627 S.E.2d 609 (2006).
In each of the Lawrence cases, this Court reversed the
convictions when the defendants were charged with multiple counts
of taking indecent liberties with a child or multiple counts of
first-degree sexual offense, all against a single victim. Both G.
Lawrence I and M. Lawrence I involved cases in which the defendants
were charged with multiple counts of each sexual offense, and theevidence presented at trial suggested there were more incidents of
sexual abuse than were actually charged in the indictments. This
Court held that the
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.
M. Lawrence I, 170 N.C. App. at 210, 612 S.E.2d at 685 (emphasis in
original); see G. Lawrence I, 165 N.C. App. at 556, 599 S.E.2d at
94. Not only do we hold defendant's case is distinguishable from
these cases, but our Supreme Court recently has reversed our
decisions in both of the Lawrence cases, and held that the
defendants in the Lawrence cases were not deprived of their right
to a unanimous verdict. See State v. Markeith Rodgers Lawrence, __
N.C. __, 627 S.E.2d 609 (2006) (M. Lawrence II); State v. Gary Lee
Lawrence, Jr., __ N.C. __, 627 S.E.2d 615 (2006) (G. Lawrence II).
Our Supreme Court held that “'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.'”'” M.
Lawrence II, __ N.C. at __, 627 S.E.2d at __ (quoting State v.
Lyons, 330 N.C. 298, 305-06, 412 S.E.2d 308, 313 (1991). The
Supreme Court went on to hold that “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 thanthe number of counts charged, and (2) the indictments lacked
specific details to identify the specific incidents.” Id.
Therefore, we hold the trial court in defendant's case did not
err in failing to instruct the jury regarding a specific date on
which the alleged offenses were to have occurred. We also hold
defendant's case is not one in which the risk of a non-unanimous
jury verdict arose, and defendant was not denied his right to a
unanimous verdict. Defendant's assignment of error therefore is
overruled.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30 (e).
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