State v. Burnette, 13-976

Defendant Jerry Eldred Burnette, Jr. lived with the victim (a nine‑year‑old pseudonym "Caroline"), her mother, and siblings; the child often slept in Defendant’s bed while her mother worked nights.
Over the course of approximately a year, Defendant engaged in repeated sexual conduct with Caroline, admitting in a written statement to improper conduct "5 times" and that he ejaculated each time.
Indictments charged one count of first‑degree sexual offense and ten counts of indecent liberties with a child; trial resulted in convictions on all counts and findings that Defendant occupied a position of trust as an aggravating factor.
The jury convicted on one first‑degree sexual offense (300–369 months) and ten indecent‑liberties counts (each 20–24 months, consecutive); Defendant appealed from the judgments.
On appeal, Defendant challenged (1) the denial of his motions to dismiss the ten indecent‑liberties counts for insufficiency of evidence that they were ten distinct incidents, and (2) that his right to a unanimous jury verdict was abridged.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for ten separate indecent‑liberties counts	State: evidence showed multiple acts of genital rubbing and touching, supporting multiple convictions	Burnette: evidence only established "over five times" and did not identify ten distinct incidents	Court: Denial of motion to dismiss affirmed; "over five times" supports inference of at least six encounters and separate sexual acts (genital rubbing) can support separate counts
Unanimous jury verdict requirement	State: jurors could unanimously conclude improper conduct occurred in the indicted categories even if they relied on different incidents	Burnette: risk jurors convicted on ten counts though only four distinct encounters occurred	Court: No violation; Lawrence permits unanimity where jurors found improper conduct though they may have relied on different specific incidents

State v. Lawrence, 360 N.C. 368 (2006) (unanimity not violated where jurors may have relied on different incidents so long as they unanimously find prohibited conduct occurred)
State v. James, 182 N.C. App. 698 (2007) (multiple sexual acts in a single encounter can support multiple indecent‑liberties indictments)
State v. Laney, 178 N.C. App. 337 (2006) (multiple touchings of body areas in one encounter may constitute a single act of touching for indecent‑liberties purposes)
State v. Williams, 201 N.C. App. 161 (2009) (distinguishes Laney and James; separate analysis for mere touching vs. distinct sexual acts)
State v. Fritsch, 351 N.C. 373 (1999) (standard for appellate review of denial of motion to dismiss: substantial evidence of each element and defendant as perpetrator)