State v. Bates

634 S.E.2d 919, 179 N.C. App. 628, 2006 N.C. App. LEXIS 2013
CourtCourt of Appeals of North Carolina
DecidedOctober 3, 2006
DocketNo. COA04-777-2.
StatusPublished
Cited by4 cases

This text of 634 S.E.2d 919 (State v. Bates) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bates, 634 S.E.2d 919, 179 N.C. App. 628, 2006 N.C. App. LEXIS 2013 (N.C. Ct. App. 2006).

Opinion

*920MARTIN, 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 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. 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 error by 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.

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 *921details 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. After considering 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 non-unanimous verdict does not arise," even if the jury "considered a greater number of incidents than . . .

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Cite This Page — Counsel Stack

Bluebook (online)
634 S.E.2d 919, 179 N.C. App. 628, 2006 N.C. App. LEXIS 2013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bates-ncctapp-2006.