STATE OF NORTH CAROLINA v. JERRY ELDRED BURNETTE, JR.
NO. COA13-976
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
Forsyth County No. 12 CRS 58053, 58353-56
Appeal by Defendant from judgments entered 8 February 2013 by Judge R. Stuart Albright in Forsyth County Superior Court. Heard in the Court of Appeals 23 January 2014.
Attоrney General Roy A. Cooper, III, by Assistant Attorney General Angenette Stephenson, for the State.
W. Michael Spivey, for Defendant-appellant.
DILLON, Judge.
Jerry Eldred Burnette, Jr., (“Defendant“) appeals from judgments entered 8 February 2013, convicting him of one сount of first-degree sexual offense and ten counts of indecent liberties with a child, arguing that the trial court erred in denying his motion to dismiss for insufficiency of the evidence and that his constitutional right to а unanimous verdict was
I. Background
The evidence of record tends to show the following: In 2011, nine-year old Caroline1, her two brothers, and her mother moved in to live with Defendant in his two-bedroom house. Caroline‘s mother, who worked at night, slept in one bedroom, and Defendant slept in the other bedroom. Caroline and her brothers sleрt in various places in the house; however, Caroline often slept with Defendant in his bed, while Caroline‘s mother was working.
During the course of the next year, Defendant touched Caroline all ovеr her body with his fingers and penis on multiple occasions in his bedroom. Testimony showed that Defendant‘s improper conduct occurred “over five times.” Defendant admitted in a written statement that hе engaged in improper conduct with Caroline “5 times” and that he “[e]jaculated each time.”
On 8 October 2012, Defendant was indicted on various charges arising from Defendant‘s conduct with Caroline. His case came on for trial on 4 February 2013, the Honorable Judge
II. Analysis
Defendant argues that the trial court erred by denying his motion to dismiss at least some of the indecent liberty charges and that his right to a unanimous jury verdict was abridged. Though Defendant couches these arguments as a single argument, we address each one separately.
A. Motion to Dismiss
Defendant contends the trial court erred by denying his motion to dismiss for insufficiency of the evidence to support his ten indecent liberties convictions. Specifically, Defendant contends the State produced insufficient evidence to show ten “distinct[,] separate incidents.” We disagree.
In the present case, Defendant‘s ten indecent liberty convictions were based on the following acts, as reflected on the jury verdict sheets:
- 4 acts of rubbing Caroline‘s vagina with his penis, simulating sexual intercourse;
- 3 acts of touching her breasts with his fingers;
- 2 acts of touching her vagina with his fingers;
1 act of touching her anus with his fingers.
The evidence, taken in the light most favorable to the State, showed that Defendant put his penis in Caroline‘s vagina over five times, that he touched her breasts with his hands over five times, that he touched her vagina with his fingers over five times, and that he touched her аnus with his fingers over five times. We believe that from this evidence it could be inferred that the indecent liberties by Defendant took place during the course of at least six episodes, in that “over fivе times” means at least six times.
We have held that “multiple sexual acts, even in a single encounter, may form the basis for multiple indictments for indecent liberties.” State v. James, 182 N.C. App. 698, 705, 643 S.E.2d 34, 38 (2007). However, we have also held that the touching of multiple areas of a victim‘s body during a single encounter only constitutes a single act of touching and not multiple sexual acts. State v. Laney, 178 N.C. App. 337, 341, 631 S.E.2d 522, 524-25 (2006). However, we reached our conclusion in Laney, in part, because, in that case, the only sexual аcts alleged involved touching the victim‘s body with his hands and was not accompanied by some other type of sexual act. Id. (noting that “[t]he sole act involved was touching – not
In Laney, defendant touched both the victim‘s breasts and put his hands under her waist-band. This Court held that there was one single act of touching and not multiple sexual acts. However, in [James], this Court, in distinguishing [Laney], stated that as opposed to mere touching, “multiple sexual acts, even in a single encounter, may form the basis for multiple indictments for indecent liberties.” Thus, this Court found a different analytical path should be applied when dealing with “sexual acts” as opposed to touching in the context of charges of indecent liberties.
State v. Williams, 201 N.C. App. 161, 185, 689 S.E.2d 412, 425 (2009) (citations omitted). Thus, while multiple touchings occurring during the same encounter will generally only sustain a single conviction for indecent liberties, touchings accompanied by a separate sexual act – such as a defendant rubbing the victim‘s vagina with his penis – during the same encounter, mаy sustain two convictions for indecent liberties.
In this case, Defendant‘s ten indecent liberties convictions were based on six acts of touching and four acts of another sexual act, namеly simulating sexual intercourse by rubbing his penis on Caroline‘s vagina. To sustain Defendant‘s six acts of touching, there must be evidence from which it could be inferred that Defendant touched Caroline during six different
B. Unanimous Jury Verdict
Defendant argues that his right to a unanimоus jury verdict under our Constitution and General Statutes was violated. See
Initially, we note that at trial, Defendant lodged a motion to dismiss at the close of the State‘s evidence and at the close of all evidencе, but without reference to the alleged abridgment of his right to a unanimous jury verdict. We also note, however, that the failure to object to alleged errors by the trial court that violate a defendant‘s right to a unanimous verdict does not waive his right to raise the question on appeal. State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).
In State v. Lawrence, 360 N.C. 368, 375, 627 S.E.2d 609, 613 (2006), our Supreme Court held that “a defendant may be unanimously convicted of indecent liberties evеn 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
In the present case, there was evidence that Defendant committed indecеnt liberties in four different ways: by touching Caroline‘s breasts, by touching her vagina, by touching her anus and by rubbing his penis against her vagina. The evidence also shows that he did each of these acts “over five timеs.” However, Defendant was only convicted of committing each of these acts four or fewer times. In other words, the jury considered a higher number of incidents for each type of conduсt than the number it ultimately convicted him for. Therefore, based on the Supreme Court‘s holding in Lawrence, supra, Defendant‘s right to a unanimous jury verdict has not been abridged.
III. Conclusion
NO ERROR.
Judge STROUD and Judge HUNTER, JR. concur.
Report per Rule 30(e).