IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-82
Filed 6 February 2024
Durham County, Nos. 19 CRS 2363–64, 56406
STATE OF NORTH CAROLINA
v.
JAMES FREDRICK BOWMAN, Defendant.
Appeal by Defendant from judgment entered 25 January 2022 by Judge
Josephine K. Davis in Durham County Superior Court. Heard in the Court of Appeals
17 October 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Jasmine McGhee, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for Defendant-Appellant.
CARPENTER, Judge.
James Fredrick Bowman (“Defendant”) appeals from judgment entered after a
jury found him guilty of two counts of first-degree forcible sexual offense, one count
of first-degree forcible rape, one count of possession of a firearm by a felon, one count
of assault by pointing a gun, one count of assault on a female, and one count of
communicating threats. On appeal, Defendant argues the trial court erred by
instructing the jury on only one count of first-degree forcible sexual offense, thus
jeopardizing his right to a unanimous verdict. Additionally, Defendant argues STATE V. BOWMAN
Opinion of the Court
remand is required to correct clerical errors in the judgment. After careful review,
we agree with Defendant. Therefore, we reverse in part and remand this case for a
new trial concerning the two counts of first-degree forcible sexual offense and for
correction of clerical errors in the judgment.
I. Factual & Procedural Background
At around 5:00 a.m. on 9 September 2019, S.B. (“Victim”) awoke when
Defendant banged on her window, yelling at her to open the door to her home. Once
Victim opened the door, Defendant accused Victim of sleeping with someone else and
punched her in the chest. Defendant appeared to be heavily intoxicated and was
armed with a handgun. Defendant exclaimed, “[s]ince you want to act like a whore,
I’m going to treat you like a whore.” Defendant, while brandishing a gun, then
ordered Victim to strip. Defendant proceeded to assault Victim anally, orally, and
vaginally, while threatening to kill Victim, dismember her body, and bury her in
pieces.
On 21 October 2019, a Durham County grand jury indicted Defendant for the
following seven offenses: one count of first-degree forcible rape, two counts of first-
degree forcible sexual offense, one count of possession of a firearm by a felon, one
count of assault by pointing a gun, one count of assault on a female, and one count of
communicating threats. On 23 March 2021, the case went to trial, which ended in a
hung-jury mistrial. On 17 January 2022, the case went to a second trial in Durham
County Superior Court.
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At the close of all evidence, the trial court held a charge conference and
instructed the jury. Defendant did not object to the jury instructions. The trial court
read the elements for first-degree forcible sexual offense and explained the burden of
proof. The trial court did not read the instructions for each count charged, nor did
the court otherwise notify the jury that Defendant was charged with two separate
counts of first-degree forcible sexual offense.
The trial court did state that “all 12 of you must agree to your verdict. You
cannot reach a verdict by majority vote.” But while the verdict sheets listed two
counts of first-degree forcible sexual offense, the two counts were not separated by
specific instances of sexual act. The two counts were simply separated on the verdict
sheet as “count 2” and “count 3.” This is similar to Defendant’s indictment, which
listed the two first-degree forcible sexual offenses as the second and third counts.
The jury found Defendant guilty on all seven charges, including the two counts
of first-degree forcible sexual offense. Defendant then admitted the existence of an
aggravating factor. The trial court entered judgment on the jury’s verdicts and
imposed a consolidated aggravated-range sentence of 365 to 498 months of active
imprisonment. Defendant gave oral notice of appeal in open court following the entry
of judgment.
II. Jurisdiction
This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2021).
III. Issues
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The issues on appeal are whether: (1) the trial court committed plain error by
instructing the jury on only one count of first-degree forcible sexual offense, thus
jeopardizing Defendant’s right to a unanimous verdict; and (2) remand is required to
correct clerical errors in the judgment.
IV. Analysis
A. Jury Instructions
Defendant first contends the trial court committed plain error by instructing
the jury on only one count of first-degree forcible sexual offense, thus jeopardizing his
right to a unanimous verdict. After careful review, we agree with Defendant.
When the issue is properly preserved at trial, “[t]he question of whether a trial
court erred in instructing the jury is a question of law reviewed de novo.” State v.
McGee, 234 N.C. App. 285, 287, 758 S.E.2d 661, 663 (2014). We review unpreserved
jury-instruction issues, however, for plain error. State v. Collington, 375 N.C. 401,
410, 847 S.E.2d 691, 698 (2020). Here, Defendant did not object to the jury
instructions at trial, so we will review only for plain error. See id. at 410, 847 S.E.2d
at 698.
Under plain-error review, this Court must first determine that an error
occurred at trial. See State v. Towe, 366 N.C. 56, 62, 732 S.E.2d 564, 568 (2012).
Second, the defendant must demonstrate the error was “fundamental,” which means
the error probably caused a guilty verdict and “seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings.” State v. Grice, 367 N.C. 753,
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764, 767 S.E.2d 312, 320–21 (2015) (quoting State v. Lawrence, 365 N.C. 506, 519,
723 S.E.2d 326, 335 (2012)). Notably, the “plain error rule . . . is always to be applied
cautiously and only in the exceptional case . . . .” State v. Odom, 307 N.C. 655, 660,
300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002
(4th Cir. 1982)).
First-degree forcible sexual offense includes “a sexual act with another person
by force and against the will of the other person” by use, or threatened use, of a deadly
weapon. N.C. Gen. Stat. § 14-27.26 (2021). A sexual act includes “[c]unnilingus,
fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.
Sexual act also means the penetration, however slight, by any object into the genital
or anal opening of another person’s body.” Id. § 14-27.20(4).
“It is the duty of the trial court to instruct the jury on the law applicable to the
substantive features of the case arising on the evidence . . . .” State v. Robbins, 309
N.C. 771, 776, 309 S.E.2d 188, 191 (1983). “When reviewing a trial court’s charge to
the jury, the instructions must be considered in their entirety.” State v. Parker, 119
N.C. App. 328, 339, 459 S.E.2d 9, 15 (1995). And in criminal cases, “a defendant must
be convicted, if convicted at all, of the particular offense charged in the warrant or
bill of indictment.” State v. Williams, 318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986).
In State v. Bates, this Court found the trial court’s failure to distinguish
between separate counts of first-degree sexual offense was a plain error because such
a failure jeopardized the defendant’s right to a unanimous verdict. 172 N.C. App. 27,
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38, 616 S.E.2d 280, 288 (2005). The jury convicted the defendant of six counts of first-
degree sexual offense. Id. at 29, 616 S.E.2d at 283. The trial court, however, read
the instruction only once for eleven counts of the same offense. Id. at 38, 616 S.E.2d
at 288. Thus, we held that the defendant’s right to a unanimous jury verdict was
jeopardized. Id. at 38, 616 S.E.2d at 288.
But “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).”
State v. Bates, 179 N.C. App. 628, 629, 634 S.E.2d 919, 920 (2006). On remand, we
reconsidered the case based on four factors: “(1) the evidence; (2) the indictments; (3)
the jury charge; and (4) the verdict sheets.” Id. at 633, 634 S.E.2d at 922. Concerning
the evidence and indictments, we looked to determine whether “it is possible” to
match guilty verdicts with specific incidents. Id. at 633, 634 S.E.2d at 922.
Concerning the jury instructions, we looked to whether the “instructions were
adequate to ensure that the jury understood that it must agree unanimously as to
each verdict on each charge.” Id. at 633, 634 S.E.2d at 922.
And concerning the verdict sheets, we looked to whether “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.” Id. at 634, 634 S.E.2d at 922–23. The
counts in Bates had date ranges and “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
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reaching their verdict and increasing the likelihood of unanimity.” Id. at 634, 634
S.E.2d at 923.
After considering all of the factors, we held that it was “possible to match the
jury’s verdict of guilty with specific incidents presented in evidence and in the trial
court’s instructions.” Id. at 634, 634 S.E.2d at 923. We held that the “defendant’s
right to unanimous verdicts . . . was not violated.” Id. at 634, 634 S.E.2d at 923.
Here, the jury convicted Defendant on two counts of first-degree forcible sexual
offense, and the trial court instructed the jury on first-degree forcible sexual offense
only once. The trial court advised the jury that its verdict must be unanimous as to
each charge, but the verdict sheet did not specify which sexual act was to be
considered for each charge. Unlike in Bates, the jury here could not determine which
sexual act applied to which count. The counts in this verdict sheet lacked
corresponding dates and descriptions of the alleged sexual acts—both of which were
included in the Bates verdict sheet. See id. at 634, 634 S.E.2d at 923.
The Dissent correctly notes that corresponding dates will be unhelpful here
because all of the alleged sexual acts occurred on the same date. And the Dissent
correctly notes that the number of alleged sexual acts exceeds the number of first-
degree forcible sexual-offense charges. Here, Defendant allegedly committed three
sexual acts: At gunpoint, he penetrated Victim’s anus with his fingers and penis;
Defendant also forced Victim to perform oral sex. The State, however, only charged
Defendant with two counts of first-degree forcible sexual offense.
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The jury convicted Defendant on both counts of first-degree forcible sexual
offense, which begs the question: Which two sexual acts did the jury unanimously
agree upon? Both anal acts? One oral act and one anal act? And if the latter, which
anal act? For example, one juror may have been unconvinced about the oral act and
completely convinced of both anal acts. Whereas another juror may have been
unconvinced about one anal act and completely convinced of the other anal act and
the oral act. But because of the ambiguity in the jury instruction and verdict sheets,
we cannot confirm whether this actually occurred. Thus, under the facts of this case,
we cannot conclude there was unanimity of verdict concerning these offenses.
In Bates, the trial court guarded against this possibility by labeling the counts
according to the specific type of alleged sexual act. Id. at 634, 634 S.E.2d at 923
(noting that the trial court “differentiated between some of the counts by including
next to the charge the words ‘(by cunnilingus)’ or ‘(inserting finger into victim’s
vagina)’”). Had the trial court done the same here, we would agree with the Dissent.
But here, the trial court did not differentiate counts by the type of alleged sexual act,
thus jeopardizing Defendant’s right to a unanimous verdict concerning the first-
degree forcible sexual-offense charges. In other words, we agree with Defendant and
disagree with the Dissent because it is impossible to know if the jury convicted
Defendant “of the particular offense[s] charged in the warrant or bill of indictment.”
See Williams, 318 N.C. at 628, 350 S.E.2d at 356 (emphasis added).
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We also disagree with the Dissent’s assertion that Defendant’s right to a
unanimous verdict was not jeopardized because section 14-27.26 lacks a list of
“discrete criminal activities in the disjunctive.” On the contrary, section 14-27.26
prohibits certain sexual acts, N.C. Gen. Stat. § 14-27.26, and “sexual acts” are discrete
criminal activities, see id. § 14-27.20(4). These discrete criminal activities include
“[c]unnilingus, fellatio, analingus, or anal intercourse, but do not include vaginal
intercourse. Sexual act also means the penetration, however slight, by any object
into the genital or anal opening of another person’s body.” Id. § 14-27.20(4).
The Dissent cites State v. Lawrence for support. 360 N.C. 368, 627 S.E.2d 609
(2006). But sexual acts are distinct and distinguishable from the malleable acts
analyzed in Lawrence: “immoral, improper, or indecent liberties.” Id. at 374, 627
S.E.2d at 612. The Lawrence Court correctly described “immoral, improper, or
indecent liberties” as an “ambit.” Id. at 374, 627 S.E.2d at 612. Immoral, improper,
or indecent liberties are not defined by statute: We have defined them “as ‘such
liberties as the common sense of society would regard as indecent and improper.’”
State v. Every, 157 N.C. App. 200, 205, 578 S.E.2d 642, 647 (2003) (quoting State v.
McClees, 108 N.C. App. 648, 653, 424 S.E.2d 687, 690 (1993)).
A sexual act, however, is not an ambit. See N.C. Gen. Stat. § 14-27.20(4). It is
statutorily defined and only includes “[c]unnilingus, fellatio, analingus, or anal
intercourse” and “the penetration . . . by any object into the genital or anal opening
of another person’s body.” Id. Society cannot differ on what a “sexual act” is because
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the General Assembly has defined it. See In re Clayton-Marcus Co., 286 N.C. 215,
219, 210 S.E.2d 199, 203 (1974) (“[When a statute] contains a definition of a word
used therein, that definition controls, however contrary to the ordinary meaning of
the word it may be.”). Therefore, the Dissent’s Lawrence analysis is inapposite.
Accordingly, because it was not “possible to match the jury’s verdict of guilty
with specific incidents presented in evidence” without a special verdict sheet, the trial
court’s single instruction as to first-degree forcible sexual offense was erroneous and
jeopardized Defendant’s right to a unanimous verdict. See Bates, 179 N.C. App. at
634, 634 S.E.2d at 923. Further, this error was “fundamental” because it affected the
integrity of the trial concerning Defendant’s first-degree forcible sexual-offense
charges. See Grice, 367 N.C. at 764, 767 S.E.2d at 320–21. Therefore, the trial court
plainly erred. See id. at 764, 767 S.E.2d at 320–21.1
B. Clerical Errors
Defendant also contends the trial court made several clerical errors in the
judgment, and thus the judgment should be corrected on remand. In the event we
discover a clerical error in the judgment, the State has no objection to remand on this
issue. Again, we agree with Defendant.
1 We note that Defendant’s strategy on appeal is not without risk. The State only charged him with two counts of first-degree forcible sexual offense, but based on the facts, the State could indict Defendant on a third count.
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“When, on appeal, a clerical error is discovered in the trial court’s judgment or
order, it is appropriate to remand the case to the trial court for correction because of
the importance that the record ‘speak the truth.’” State v. Smith, 188 N.C. App. 842,
845, 656 S.E.2d 695, 696–97 (2008) (quoting State v. Linemann, 135 N.C. App. 734,
738, 522 S.E.2d 781, 784 (1999)). A clerical error is “‘[a]n error resulting from a minor
mistake or inadvertence, esp. in writing or copying something on the record, and not
from judicial reasoning or determination.’” State v. Jarman, 140 N.C. App. 198, 202,
535 S.E.2d 875, 878 (2000) (quoting BLACK’S LAW DICTIONARY (7th ed. 1999)).
Defendant first contends the trial court made a clerical error by indicating in
the judgment that Defendant was a Prior Record Level (“PRL”) V with 14 points. The
sentencing worksheet reflects that the trial court marked Defendant as a PRL V with
14 points on the sentencing sheet. The record, however, reflects that Defendant is a
PRL IV with 12 points. The stipulated prior record-level worksheet established
Defendant as a PRL IV with 12 points. During sentencing, both the State and
Defendant advised the trial court that Defendant was a PRL IV. Further, the trial
court sentenced Defendant to between 365 and 498 months of active imprisonment,
which coincides with the sentence applicable to a PRL IV defendant concerning a
Class B1 sex-related felony. See N.C. Gen. Stat. § 15A-1340.17(c)–(f) (2021). For
these reasons, the trial court made a clerical error by listing Defendant as a PRL V
with 14 points. See Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878.
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Defendant next contends the trial court made a clerical error on Defendant’s
sentencing sheet by marking box twelve for findings of aggravating and mitigating
factors. Box twelve states: “The defendant committed the offense while on pretrial
release on another charge.” And the record shows the trial court marked box twelve
on Defendant’s sentencing sheet. Prior to sentencing, however, the State expressed
it was not proceeding with aggravating factor twelve because Defendant was not on
pretrial release. Additionally, the plea arrangement for aggravating factor 12a stated
the State was not proceeding with any other factors. Therefore, the trial court made
a clerical error in marking box twelve on the sentencing sheet. See Jarman, 140 N.C.
App. at 202, 535 S.E.2d at 878.
Lastly, Defendant contends the trial court made a clerical error by failing to
check the box on the aggravating-factors sheet, indicating it “accept[ed] the
defendant’s admission to the aggravating factor(s) noted above and finds the
supporting evidence to be beyond a reasonable doubt.” The record reflects the box
was not marked on the aggravating-factors sheet. At trial, however, the trial court
accepted Defendant’s plea to the aggravating factor and imposed a sentence in the
aggravated range. Therefore, the trial court made a clerical error on the aggravating-
factors sheet by failing to indicate it accepted Defendant’s admission to the
aggravating factor. See Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878.
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Accordingly, because the trial court made several clerical errors in the
judgment, we remand this case to allow the trial court to correct them. See Smith,
188 N.C. App. at 845, 656 S.E.2d at 696–97.
V. Conclusion
We conclude the trial court committed plain error in its instruction as to the
first-degree forcible sexual-offense charges, because in the absence of a special verdict
form, the instructions jeopardized Defendant’s right to a unanimous verdict. See
Grice, 367 N.C. at 764, 767 S.E.2d at 320–21. Therefore, we reverse and remand this
case for a new trial concerning the two counts of first-degree forcible sexual offense.
We also remand for correction of clerical errors in the judgment. See Smith, 188 N.C.
App. at 845, 656 S.E.2d at 696–97.
REVERSED IN PART AND REMANDED.
Judge HAMPSON concurs.
Judge THOMPSON dissents in part by separate opinion.
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THOMPSON, Judge, dissenting.
I respectfully dissent from the portion of the majority opinion that concludes
the trial court committed plain error when it instructed the jury only once on the
offense of first-degree forcible sexual offense, while defendant was indicted on two
counts of that offense and where the jury received two jury verdict sheets, one for
each of the counts, and returned each marked guilty. As explained below, controlling
precedent indicates that the trial court did not err in failing to repeat its accurate
jury instruction regarding this offense a second time in reference to the second count
of the offense.
The record reflects that these two offenses—each included in a single
indictment designated as case file 19 CRS 2364—cite N.C. Gen. Stat. § 14-27.26 and
then allege: “The jurors for the State upon their oath present that on or about [9
September 2019] and in [Durham County] the defendant named above unlawfully,
willfully, and feloniously [did] engage in a sex offense with [the victim], by force and
against the victim’s will.” At trial, the victim testified that defendant sexually
assaulted her at gunpoint, penetrating her with his penis anally, orally, and
vaginally, as well as penetrating her anally with his fingers. The victim’s testimony
of vaginal penetration by defendant’s penis supported the first-degree rape
indictment and related jury instructions, while the assaults by penetration of the
victim’s mouth and anus by defendant’s penis and the penetration of her anus by
defendant’s fingers could support the two first-degree forcible sexual offenses. STATE V. BOWMAN
Thompson, J., dissenting in part.
Regarding the latter offense, without objection from defendant, the trial court
charged the jury:
The defendant has been charged with first degree forcible sexual offense. For you to find the defendant guilty of first degree forcible sexual offense, the State must prove to you four things beyond a reasonable doubt. First, that the defendant engaged in a sexual act with the alleged victim. A sexual act means fellatio, which is any touching by the lips or tongue of one person and the male sex organ of another; anal intercourse, which is any penetration, however slight, of the anus of any person by their male or sexual organ; and, [ ] any penetration, however slight, by an object into the genital or anal opening of a person’s body. And, second, that the defendant used or threatened to use force sufficient to overcome any resistance the alleged victim might make. The force necessary to constitute sexual offense need not be actual physical force. Fear or coercion may take the place of physical force. And, third, that the alleged victim did not consent and it was against the alleged victim’s will. Consent induced by fear is not consent at law. And, fourth, that the defendant employed and/or displayed a dangerous or deadly weapon. A handgun is a dangerous or deadly weapon. A dangerous or deadly weapon is a weapon which is likely to cause death or serious injury. In determining whether the particular object is a dangerous or deadly weapon, you should consider the nature of the object, the manner in which it was used, the size and strength of the defendant as compared to that of the alleged victim.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant engaged in a sexual act which—act with the alleged victim and the defendant did so by force and/or threat of force and that this was sufficient to overcome any resistance which the alleged victim might make, that the alleged victim did not consent and it was against the alleged victim’s will and that the defendant employed and/or displayed a weapon, it
2 STATE V. BOWMAN
would be your duty to return a verdict of guilty of first degree forcible sexual offense. If you do not so find or have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of first degree forcible sexual offense but consider whether or not the defendant is guilty of second degree forcible sexual offense.
Defendant does not contend that this instruction was incorrect in any way; instead,
he represents that the trial court plainly erred in failing to repeat this instruction
before sending the jury to deliberate whether, inter alia, defendant committed two
counts of this particular offense. Ultimately, the jury, having before it evidence that
defendant had been indicted on two counts of first-degree forcible sexual offense,
having heard testimony about three distinct acts which if the testimony were believed
would support the two counts of that offense, and having been correctly charged
regarding the elements of that offense by the trial court, elected in its role as finder
of fact, to return two unanimous verdicts of guilty on the two counts of that offense
as listed on one of the verdict sheets as “COUNT 2” and “COUNT 3” following the
case file number.
The majority opinion relies primarily on this Court’s decision in State v. Bates,
179 N.C. App. 628, 629, 634 S.E.2d 919, 920 (2006), disc. review denied, 361 N.C. 696,
653 S.E.2d 2 (2007) —where the trial court gave a proper instruction for first-degree
sexual offense only once while the defendant was charged with eleven counts of that
offense—which opinion in turn was issued on remand from the North Carolina
Supreme Court after reconsideration in light of State v. Lawrence, 360 N.C. 368, 627
3 STATE V. BOWMAN
S.E.2d 609 (2006). The defendant in Bates “was indicted on eleven counts of first-
degree sexual offense; evidence was presented of six to ten incidents of first-degree
sexual offense, and the jury returned a verdict of guilty on six charges. 179 N.C. App.
at 632, 634 S.E.2d at 921–22 (citation omitted). As noted by the majority decision
here, on review of these offenses, this Court “adopt[ed] the analysis in [an
unpublished post-Lawrence Court of Appeals decision] and . . . . consider[ed] 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.” Id.
at 633, 634 S.E.2d at 922.
The Court first noted that as to factors one and two, “[w]here the number of
incidents equal the number of indictments, the risk of a nonunanimous verdict is
substantially lower,” while where “more counts were charged than the evidence
supported”—as in Bates—there is “more opportunity for confusion.” Id. (emphasis
added). Forcible sexual offense is defined as the commission of “a sexual act 2 with
another person by force and against the will of the other person” by means of one or
more of three listed methods of force—including by the use of a weapon, an element
not contested in defendant’s appeal. N.C. Gen. Stat. § 14-27.26 (2021). Here, the
evidence at trial that could sustain the two counts of forcible sexual offense by
2 A sexual act includes “[c]unnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body.” N.C. Gen. Stat. § 14-27.20(4) (2021).
4 STATE V. BOWMAN
defendant against the victim was (1) anal penetration with defendant’s fingers, (2)
anal penetration with defendant’s penis, and (3) oral penetration with defendant’s
penis. Thus, this case is distinguishable because defendant was charged with two
counts of forcible sexual offense and evidence was presented at trial of three sexual
acts which could constitute forcible sexual offense—thus, one fewer count was
charged than the evidence supported.
Turning to the third factor, the majority decision acknowledges that, as in
Bates, the trial court here instructed the jury correctly as to forcible sexual offense
and instructed the jury as to unanimity, which “adequately ensured that the jury
would match its unanimous verdicts with the charges against the defendant [and]
favors a finding that the jury verdicts were unanimous in the present case.” Id. at
634, 634 S.E.2d at 922.
Finally, the Court in Bates 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.’ ” Id. at 634, 634 S.E.2d at 922 (quoting State v. Wiggins,
161 N.C. App. 583, 592–93, 589 S.E.2d 402, 409 (2003), disc. review denied, 358 N.C.
241, 594 S.E.2d 34 (2004)). The verdict sheets here, unlike those in Bates, include
both the felony charges and their respective case numbers, to wit: the case file number
5 STATE V. BOWMAN
19 CRS 2364 followed by the designations “COUNT 2” and “COUNT 3.” Moreover,
while the majority decision suggests that the “lack[ of] corresponding dates and
descriptions of the alleged sex acts—both of which were included in the Bates verdict
sheet”—were dispositive in the majority’s analysis, a careful reading of Bates reveals
that the verdict sheets therein only “gave date ranges for the different counts [which]
. . . did not correspond with any specific evidence at trial; thus, they failed to fully
clarify which incidents corresponded to which charges.” See id. at 634, 634 S.E.2d at
923 (emphasis added). In contrast, here the inclusion of a date for each of the forcible
sexual offense charges would have provided the jurors no additional clarity since all
of the alleged conduct constituting the offenses was alleged to have occurred on the
same date and in very close temporal proximity, unlike the circumstance in Bates
where the alleged sexual offenses occurred over months.
In sum, on each of the four factors noted in Bates and cited by the majority
decision, there was less likelihood of jury confusion than in Bates, in which case this
Court nonetheless held that “it is possible to match the jury’s verdict of guilty with
specific incidents presented in evidence and in the trial court’s instructions” and
therefore the “defendant’s right to unanimous verdicts as to his convictions of six
counts of first-degree sexual offense was not violated.” Id. at 634, 634 S.E.2d at 923.
Thus, in my view, it is impossible to rely upon Bates and reach the result of the
majority here in finding that the trial court committed error, let alone plain error, in
6 STATE V. BOWMAN
giving the forcible sexual offense instruction only once in the circumstances of this
case. See id. at 634, 634 S.E.2d at 923 (finding no error); see also Lawrence, 360 N.C.
at 376, 627 S.E.2d at 613 (finding no error); see also Wiggins, 161 N.C. App. at 595,
589 S.E.2d at 410 (finding no error).
My position is further buttressed by additional pertinent analyses found in
Bates and the Lawrence line of cases.
In Bates, the Court also addressed unanimity of jury verdicts in connection
with the offense of taking indecent liberties with a child, of which defendant was
indicted on ten counts. Bates, 179 N.C. App. at 630, 634 S.E.2d at 920. There was
evidence at trial of “a number” of such offenses against the child victim over a period
of months, and the jury returned guilty verdicts on seven of the ten charges presented
to it. Id. On appeal, the defendant argued
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.
Bates, 179 N.C. App. at 631, 634 S.E.2d at 921. This Court rejected that argument,
emphasizing that under Lawrence, “ ‘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
7 STATE V. BOWMAN
indictments lacked specific details to identify the specific incidents.’ ” Id. (quoting
Lawrence, 360 N.C. at 375, 627 S.E.2d at 613) (emphasis added).
The Supreme Court in Lawrence, in turn based its holding on State v. Hartness,
stating “that ‘[t]he risk of a nonunanimous verdict does not arise in cases such as the
one at bar because the statute proscribing indecent liberties does not list, as elements
of the offense, discrete criminal activities in the disjunctive.’ ” Lawrence, 360 N.C. at
375, 627 S.E.2d at 613 (quoting State v. Hartness, 326 N.C. 561, 564, 391 S.E.2d 177,
179 (1990). “Unlike a drug trafficking statute, which may list possession and
transportation, entirely distinct criminal offenses, in the disjunctive, the indecent
liberties statute simply forbids ‘any immoral, improper, or indecent liberties.’ ” Id.
(citing N.C. Gen. Stat. § 14-202.1(a)(1) (2005)). The Supreme Court then observed,
“[t]hus, 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.’ ” Id. ((emphasis added) (citations omitted)).
Similarly, and pertinent to the case before us, N.C. Gen. Stat. § 14-27.26 does
not list “discrete criminal activities in the disjunctive,” id., but rather simply defines
forcible sexual offense as commission of “a sexual act with another person by force
and against the will of the other person,” including by the use of a weapon, N.C. Gen.
Stat. § 14-27.26. As in Lawrence, here, whether the jury found that defendant
8 STATE V. BOWMAN
committed two forcible sexual offenses by any combination of the acts evidenced at
trial—anal penetration by defendant’s fingers, anal penetration by defendant’s penis,
or oral penetration by defendant’s penis—the jury “unanimously f[ou]nd that there
occurred sexual [acts] within the ambit of” the forcible sexual offense statute. See
Lawrence, 360 N.C. at 375, 627 S.E.2d at 613 (citation omitted). Thus, under the
reasoning of Hartness, Lawrence, and Bates, defendant has failed to show error in the
jury instructions.
For the reasons explained above, the trial court did not err in instructing the
jury. Accordingly, I respectfully dissent from the majority’s decision to the contrary
on this issue.