State v. Burnette

• Court: Court of Appeals of North Carolina
• Decided: April 1, 2014
• Docket: 13-976
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-976 NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Forsyth County No. 12 CRS 58053, 58353-56

JERRY ELDRED BURNETTE, JR.

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.

Attorney 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 count

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 a unanimous verdict was -2- abridged. We believe there was no prejudicial error in this

case.

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 slept 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 over 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 he 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

1 A pseudonym. -3- R. Stuart Albright presiding. The jury found Defendant guilty

of one count of first-degree sexual offense and ten counts of

indecent liberties and found the existence of an aggravating

factor for each charge, that Defendant had taken advantage of a

position of trust. The trial court entered judgments consistent

with the jury’s verdicts, sentencing Defendant to 300 to 369

months incarceration on the first-degree sexual offense

conviction and 20 to 24 months incarceration on each of the ten

indecent liberties with a child convictions, to be served

consecutively. From these judgments, Defendant appeals.

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. -4- “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). “‘Upon defendant’s motion for dismissal,

the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense. If so, the motion is

properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.

2d 150 (2000). “In making its determination, the trial court

must consider all evidence admitted, whether competent or

incompetent, in the light most favorable to the State, giving

the State the benefit of every reasonable inference and

resolving any contradictions in its favor.” State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 132 L. Ed. 2d 818 (1995).

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; -5-

 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 anus 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 five 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 acts 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 -6- two distinct sexual acts”). Our Court has explained the

distinction between Laney and James as follows:

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, may 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, namely 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 -7- encounters. Based on the evidence that Defendant touched

Caroline’s breasts, vagina and anus “over five times,” we

believe there was evidence from which it could be inferred that

Defendant committed acts of indecent liberties by touching

during at least six different encounters; and, therefore, we do

not believe the trial court erred by denying Defendant’s motion

to dismiss those charges. Further, we believe that rubbing

one’s penis against a victim’s vagina, simulating sexual

intercourse, constitutes a “sexual act” distinct from touching;

and, therefore, a separate conviction for indecent liberties

based on such genital rubbing can be sustained even where a

defendant is also convicted for indecent liberties based on

touching during the same encounter. We believe the evidence

that Defendant rubbed his penis against Caroline’s vagina “over

five times” is sufficient to overcome Defendant’s motion to

dismiss the four counts of taking indecent liberties based on

genital rubbing, notwithstanding that these four acts might have

occurred during some of the same encounters relied upon to

sustain some of his six convictions based on touching.

B. Unanimous Jury Verdict

Defendant argues that his right to a unanimous jury verdict

under our Constitution and General Statutes was violated. See -8- N.C. Const. art. 1, § 24; N.C. Gen. Stat. § 15A-1237(b) (2011).

Specifically, Defendant argues on appeal that his right to a

unanimous jury verdict “was violated because ten separate counts

of indecent liberties were submitted to the jury in a manner

that created a risk some jurors found Defendant guilty of ten

counts based on acts of touching that occurred during just four

separate and distinct encounters with the child.”

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 evidence, 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 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 -9- incidents.” This is because “the indecent liberties statute

simply forbids ‘any immoral, improper, or indecent

liberties[,]’” and, “while one juror might have found some

incidents of misconduct and another juror might have found

different incidents of misconduct, the jury as a whole found

that improper sexual conduct occurred.” Id. at 374, 627 S.E.2d

at 612-13 (citing N.C. Gen. Stat. § 14-202.1(a)(1) (2005))

(emphasis added).

In the present case, there was evidence that Defendant

committed indecent 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 times.”

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 conduct

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 -10- Based on the foregoing, we conclude Defendant had a fair

trial, free from prejudicial error.

NO ERROR.

Judge STROUD and Judge HUNTER, JR. concur.

Report per Rule 30(e).