State v. Calderon

Opinions

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 238A23

Filed 12 December 2025

STATE OF NORTH CAROLINA

v.

PEDRO ISAIAS CALDERON

Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided

panel of the Court of Appeals, 290 N.C. App. 344 (2023), reversing in part a judgment

entered on 8 September 2021 by Judge Keith O. Gregory in Superior Court, Wake

County, and remanding the case to arrest judgment and for resentencing. On 28 June

2024, the Supreme Court allowed both parties’ petitions for discretionary review as

to additional issues. Heard in the Supreme Court on 11 February 2025.

Jeff Jackson, Attorney General, by Nicholas S. Brod, Solicitor General, for the State-appellant.

Glenn Gerding, Appellate Defender, by John F. Carella, Assistant Appellate Defender, for defendant-appellee.

RIGGS, Justice.

On 8 September 2021, a jury convicted Pedro Isaias Calderon of three counts

of taking indecent liberties with a child for kissing a thirteen-year-old girl, Jocelyn,1

on the neck outside his van, on the mouth inside his van, and on the mouth for a

1 Pseudonyms are used for the minor victim and other involved parties to protect their

identities. See N.C. R. App. P. 42(b).

Opinion of the Court

second time inside his van. Mr. Calderon was forty years old at the time of the alleged

improper conduct. On appeal, the Court of Appeals held that the trial court erred by

denying Mr. Calderon’s motion to dismiss because the State presented sufficient

evidence for two, but not three, counts of taking indecent liberties with a child. State

v. Calderon, 290 N.C. App. 344, 356 (2023). The Court of Appeals remanded to the

trial court to arrest judgment on one of Mr. Calderon’s indecent liberties convictions

and for resentencing. Id. at 357. The dissent would have held that there was

sufficient evidence to convict Mr. Calderon of three separate counts of taking indecent

liberties, so the trial court did not err by denying Mr. Calderon’s motion to dismiss.

Id. at 359 (Stading, J., concurring in part and dissenting in part).

The State entered a notice of appeal based on the dissent and both parties filed

petitions for discretionary review as to additional issues. The State sought review of

whether the Court of Appeals’ threshold distinction between “touching” and “sexual

acts” was correct or necessary. Mr. Calderon sought review alleging the trial court

made three errors: denying Mr. Calderon’s motion to dismiss two counts of indecent

liberties, given that he allegedly committed a single continuing offense; instructing

the jury on three counts of indecent liberties; and violating Mr. Calderon’s double

jeopardy rights by failing to arrest judgment on two of the three counts of indecent

liberties. This Court granted both petitions.

We hold that (1) the Court of Appeals erred in applying a threshold distinction

between touching and sexual acts, (2) the Court of Appeals erred by applying a four-

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factor test for multiple indecent liberties offenses instead of the “distinct

interruption” test established in State v. Dew, 379 N.C. 64 (2021), and (3) Mr.

Calderon was properly convicted of three counts of indecent liberties, so the trial court

did not err in denying his motion to dismiss.

I. Factual and Procedural Background

Mr. Calderon met Jocelyn in June 2019 after a church service at the home

where he was renting a room. Marvin, Mr. Calderon’s friend who also lived in the

home, testified that Mr. Calderon noticed Jocelyn and told him she “had a big ass.”

Marvin told Mr. Calderon “not to joke around that way because she was young.” Mr.

Calderon asked Marvin if Jocelyn was married, and if the children she was taking

care of during the church service were her children. Marvin told him that the children

were her siblings, told him that she was not married, and warned him not to get

involved with Jocelyn. Mr. Calderon spoke with Jocelyn briefly that day.

Just a few days later, Mr. Calderon spoke with Jocelyn again at a pool party

for the children who attended the church, where he asked for her social media

information. Jocelyn gave him her Facebook information, and the two became

Facebook friends. Mr. Calderon and Jocelyn messaged on Facebook “[p]robably every

day” for one to two weeks. Mr. Calderon asked Jocelyn to go to the movies with him,

sent her pictures, told her about his day, and told her that he wanted to touch her.

Then, on 5 July 2019, Mr. Calderon and Jocelyn met again in front of Jocelyn’s

home. Jocelyn’s grandmother and younger sister took a taxi to a dentist appointment

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that morning, leaving Jocelyn at home with her uncle and younger siblings. After

that point, testimony from Jocelyn, two neighbors who witnessed the encounter, and

Mr. Calderon diverged.

Jocelyn testified that, after cooking breakfast for her siblings, she took the

trash outside and saw Mr. Calderon’s van in the parking spot in front of her house.

When she saw Mr. Calderon, she started to go back into her house, but Mr. Calderon

grabbed her. Jocelyn alleged that, while standing outside the van, Mr. Calderon

kissed her two or three times on the neck, leaving hickeys. He lifted her into the

driver’s seat of the van, lifted her shirt and bra, and kissed her breasts. Next, Mr.

Calderon entered the van, climbing over Jocelyn to get into the passenger’s seat.

Jocelyn testified that he moved into the footwell under the driver’s seat, pulled down

her pants, and licked her vagina. Jocelyn testified that Mr. Calderon then digitally

penetrated her for a minute or two, pulled her pants up, and moved back into the

passenger’s seat. Jocelyn also testified that he asked her to perform oral sex on him,

which she refused, and that he kissed her on the neck inside the van.

At that point, a taxi with Jocelyn’s grandmother and younger sister arrived

back home, and Jocelyn left the van. She walked to her neighbors, who were standing

outside, and briefly spoke with them but did not tell them what happened in the van.

Jocelyn “hoped [her] grandmother didn’t notice” because she was worried she would

get in trouble.

Two of Jocelyn’s neighbors also testified at trial. Natalie and Danielle, two

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sisters, testified that they lived in a townhouse two doors down from Jocelyn’s home.

They had never spoken to Jocelyn before, but had seen her in their neighborhood and

knew she was a child because she took the middle school bus with their younger

brother. On 5 July 2019, Natalie and Danielle were sitting on their porch and playing

with Danielle’s son when they saw Jocelyn and Mr. Calderon in the van. Natalie and

Danielle were approximately ten to twelve feet away from the van, which was facing

the townhomes in the parking lot in front of Jocelyn’s house.

Natalie and Danielle testified that Mr. Calderon and Jocelyn appeared to be

“hugging on each other” as if they were “in a relationship” and “laying in the car, kind

of cuddled up.” The neighbors testified that they saw Mr. Calderon and Jocelyn kiss

twice in the van. The kisses were “not back to back,” with about six to seven minutes

between the kisses. They observed the kisses, but saw “nothing sexual,” saying

Jocelyn and Mr. Calderon appeared to be laughing and holding a conversation.

The neighbors’ stories varied on how long they observed the van, with Danielle

testifying it was ten to fifteen minutes and Natalie testifying it was about forty-five

minutes. When a taxi carrying her family arrived back at the house, Jocelyn left the

van, approached the neighbors, and told Danielle that her son was cute. Danielle

described Jocelyn as “playing it off” because they had never had a conversation before,

but “she made it seem like to her parents that we were outside the whole time, like

she was there . . . talking with us, but she wasn’t.” Mr. Calderon left the passenger’s

seat, got into the driver’s seat, and left the parking lot.

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Mr. Calderon also testified. He claimed that on 5 July 2019, Jocelyn gave him

her address and sent him a Facebook message that said, “Come save your girlfriend.”

He drove to her house and texted her that he was outside. According to him, Jocelyn

then said, “I’ll be right out,” and Mr. Calderon got out of his van to greet her. When

Jocelyn came out of the house, Mr. Calderon testified that she came up to him, “threw

her arms around” him, and started kissing him. They kissed “a couple times” and

Jocelyn asked him to kiss her on the neck. Mr. Calderon admitted to kissing Jocelyn

on the neck and leaving hickeys. Mr. Calderon claimed he asked to meet Jocelyn’s

uncle, who was watching them through a window, but Jocelyn declined because she

did not want him to meet her family.

After kissing Jocelyn on the neck, Mr. Calderon testified that he got into the

van first, and Jocelyn followed him. He testified that they spent ten to fifteen minutes

“joking around, talking, laughing.” Mr. Calderon denied engaging in any sexual acts

with Jocelyn and claimed that they only “kissed and talked.” When the taxi arrived

with Jocelyn’s grandmother, Mr. Calderon claims Jocelyn opened the door and left.

When she was speaking with the neighbors, Mr. Calderon claimed Jocelyn motioned

for him to leave, which he did.

On 29 August 2019, a grand jury indicted Mr. Calderon on three counts of

taking indecent liberties with a child under N.C.G.S. § 14-202.1(a)(2) and one count

of second-degree kidnapping under N.C.G.S. § 14-39. On 17 September 2019, two

arrest warrants were issued against Mr. Calderon for two counts of statutory sex

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offense with a child and two counts of indecent liberties with a child. On 21 October

2019, a grand jury indicted Mr. Calderon on two additional charges of taking indecent

liberties with a child under N.C.G.S. § 14-202.1(a)(2). Mr. Calderon was ultimately

charged with five counts of taking indecent liberties with a child, two counts of

statutory sex offenses with a child under fifteen, and one count of second-degree

kidnapping. Mr. Calderon pleaded not guilty to all counts. His trial began on 30

August 2021 in Wake County Superior Court.

On 7 September 2021, Mr. Calderon filed a motion to dismiss all charges on

the grounds that the evidence was insufficient to support submission of the charges

to the jury and because “there is a variance between the crime alleged in the

indictment and any crime for which the State’s evidence may have been sufficient to

warrant submission to the jury.” The trial court denied his motion.

The same day, at the charge conference, the State identified the facts

supporting each of the five indecent liberties charges. Three of the charges related to

Mr. Calderon kissing Jocelyn: (1) kissing her on the neck outside the van, (2) kissing

her on the mouth inside the van, and (3) kissing her on the mouth inside the van for

a second time. Mr. Calderon objected to these charges, arguing that, based on State

v. Laney, 178 N.C. App. 337 (2006), the kisses were not sufficiently distinct acts to

support two charges or convictions. The trial court overruled both objections and

instructed the jury on all three counts based on the three kisses.

The jury found Mr. Calderon guilty of three counts of taking indecent liberties

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with a child based on Mr. Calderon: (1) kissing Jocelyn on the neck outside the van,

(2) kissing Jocelyn on the mouth inside the van, and (3) kissing Jocelyn on the mouth

for a second time inside the van. The jury found Mr. Calderon not guilty of two counts

of taking indecent liberties with a child based on Mr. Calderon allegedly (1) pulling

up Jocelyn’s bra and licking and kissing her breasts and (2) asking Jocelyn to perform

oral sex on him. The jury also found Mr. Calderon not guilty of second-degree

kidnapping and two counts of statutory sex offense. The trial court sentenced Mr.

Calderon to sixteen to twenty-nine months of active imprisonment for each of the

three indecent liberties convictions, to be served consecutively. Mr. Calderon gave

notice of appeal in open court.

In a split decision, the Court of Appeals reversed the judgment in part and

remanded with instructions to arrest judgment on one of Mr. Calderon’s indecent

liberties convictions and to conduct a new sentencing hearing. Calderon, 290 N.C.

App. at 356–57. The majority first analyzed, as a threshold issue, whether the kisses

were a “touching” or a “sexual act.” Id. at 351–52. It concluded that the kisses were

non-sexual acts. Id. at 352. Then, in deciding whether the kisses were separate and

distinct acts or a single continuous occurrence, the Court of Appeals applied a test

established in State v. Sellers, 253 P.3d 20 (Kan. 2011), a Kansas case. Calderon, 290

N.C. App. at 354–55. The majority held that the kisses outside the van were

sufficiently distinct from the kisses inside the van and could be charged separately,

id. at 356, but that the two kisses inside the van were not sufficiently distinct under

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the Sellers test, so the trial court erred by denying Mr. Calderon’s motion to dismiss

as to one of the indecent liberties charges. Id.

The dissent agreed that, bound by prior decisions by the Court of Appeals,

“there is a different analytical path” for sexual acts and touching. Id. at 357 (Stading,

J., dissenting) (asking for clarification from this Court whether the distinction, “not

found in the statute, is appropriate”). However, the dissent argued that Mr. Calderon

had committed three separate and distinct acts under the Sellers test, so he was

properly convicted of three separate counts of indecent liberties. Id. The dissent

reasoned that, in the light most favorable to the State, the defendant kissed Jocelyn

outside the van, then twice inside the van “not back to back.” Id. at 359. The six-to-

seven-minute break between the kisses in the van was sufficient to make the two

kisses “distinct in time, permitting defendant to employ his thought process and

make a conscious decision to engage in the same act a second time.” Id. As such, the

dissent would have found that the trial court did not err by denying Mr. Calderon’s

motion to dismiss, instructing the jury on three counts of indecent liberties, and

declining to arrest judgment on one of the three indecent liberties convictions. Id.

The State moved for a temporary stay and petitioned this Court for a writ of

supersedeas on 19 September 2023. We allowed the temporary stay on 20 September

2023 and the writ of supersedeas on 28 September 2023. The State filed its notice of

appeal based on Judge Stading’s dissent on 27 September 2023. The State also filed

a petition for discretionary review as to additional issues on 10 October 2023, which

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we allowed on 28 June 2024. Mr. Calderon filed a petition for discretionary review

under N.C.G.S. § 7A-31 on 10 October 2023, which we allowed on 28 June 2024.

II. Analysis

A. Standard of Review

This Court reviews de novo the denial of a motion to dismiss for insufficient

evidence. State v. Tucker, 380 N.C. 234, 236 (2022) (citing State v. Crockett, 368 N.C.

717, 720 (2016)). In reviewing the denial, this Court “must view the evidence in the

light most favorable to the State, giving the State the benefit of all reasonable

inferences.” State v. Barnes, 334 N.C. 67, 75 (1993) (citing State v. Benson, 331 N.C.

537, 544 (1992)).

This Court also reviews de novo a trial court’s decisions about jury instructions,

State v. Osorio, 196 N.C. App. 458, 466 (2009); see State v. Copley, 386 N.C. 111, 119

(2024) (examining de novo “whether a jury instruction correctly explains the law”

(quoting State v. Greenfield, 275 N.C. 434, 449 (2020))), and likewise reviews de novo

alleged double jeopardy violations, State v. Courtney, 372 N.C. 458, 462 (2019).

B. The Court of Appeals erred in distinguishing between touching and sexual acts as a threshold analysis under N.C.G.S. § 14-202.1(a).

The indecent liberties statute does not distinguish between touching and

sexual acts, so the Court of Appeals erred by applying a threshold requirement

distinguishing between touching and sexual acts. The Court of Appeals said that

“[a]s a threshold issue, we must consider whether the kissing in this case was a

‘touching’ or a ‘sexual act.’ . . . In indecent-liberties cases in North Carolina, our

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Appellate Courts have utilized a different analytical approach when considering acts

of touching as opposed to sexual acts.” Calderon, 290 N.C. App. at 351–52 (citations

omitted). The Court of Appeals erroneously treated this distinction as a threshold

question it must resolve before determining whether multiple inappropriate contacts

were separate and distinct. Id. at 351–53. Instead, the same test applies to both

touchings and sexual acts, and a threshold determination is not necessary.

The Court of Appeals relied on prior indecent liberties cases that applied a

“different analytical approach” for sexual acts and touching. Id. at 352 (citing State

v. Williams, 201 N.C. App. 161, 185 (2009)). In Laney, the Court of Appeals reasoned

that, when the defendant touched the victim’s breasts, then put his hand under her

waistband, the two contacts “were part of one transaction . . . . The sole act involved

was touching—not two distinct sexual acts. Furthermore, there was no gap in time

between two incidents of touching, and the two acts combined were for the purpose of

arousing or gratifying defendant’s sexual desire.” State v. Laney, 178 N.C. App. 337,

341 (2006) (distinguishing Laney from State v. Lawrence, 360 N.C. 368 (2006), where

the defendant committed indecent liberties “during three separate and distinct

encounters”). The Court of Appeals in Calderon improperly focused on Laney’s

distinction between touching and sexual acts, instead of its reliance on the continuous

nature of the contact.

In State v. James, 182 N.C. App. 698 (2007), the Court of Appeals distinguished

Laney because the defendant had committed both an improper touching and sexual

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acts. James, 182 N.C. App. at 704–05. The Court of Appeals “note[d], however, that

the Laney Court emphasized the sole act alleged was touching, and ‘not two distinct

sexual acts.’ This language indicates that multiple sexual acts, even in a single

encounter, may form the basis for multiple indictments for indecent liberties.” James,

182 N.C. App. at 705. James reiterated Laney’s disparate treatment of touching and

sexual acts for multiple indecent liberties charges.

In James and Laney, the Court of Appeals established that “different analytical

path[s] should be applied when dealing with ‘sexual acts’ as opposed to touching in

the context of charges of indecent liberties.” Williams, 201 N.C. App. at 185 (citing

James, 182 N.C. App. at 705). If the indecent liberties involved touching, multiple

contacts would support only a single indictment, while if the indecent liberties

involved sexual acts, multiple contacts could support multiple indictments.

Therefore, the Court of Appeals analyzed as a threshold requirement whether a

contact was a touching or a sexual act.

However, the indecent liberties statute does not support such a threshold

requirement or different analytical paths. When interpreting statutes, “legislative

intent is the guiding star.” Fearrington v. City of Greenville, 386 N.C. 38, 52 (2024)

(quoting Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C. 155, 161 (1962)). This

intent is first determined by the plain language, “as the ‘actual words of the

legislature are the clearest manifestation of its intent.’ ” Id. (quoting N.C. Dep’t of

Corr. v. N.C. Med. Bd., 363 N.C. 189, 201 (2009)). North Carolina’s indecent liberties

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statute provides:

A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.

N.C.G.S. § 14-202.1(a) (2023). The text of the statute does not distinguish between

touching and sexual acts; in fact, neither are mentioned. As such, courts should not

impose an atextual threshold requirement distinguishing between touching and

sexual acts before analyzing whether multiple indecent liberties charges are proper.

The lack of a threshold requirement is further supported by this Court’s prior

holdings that a defendant need not touch the victim to be convicted under the

indecent liberties statute. State v. Etheridge, 319 N.C. 34, 49 (1987) (“We note first

that it is not necessary that defendant touch his victim to commit an immoral,

improper, or indecent liberty within the meaning of the statute.”); State v. Hartness,

326 N.C. 561, 567 (1990) (“Nor is there any requirement that the State prove that a

touching occurred.”). Instead, “a variety of acts may be considered indecent” even if

the perpetrator does not actually touch or commit a sexual act with the victim, as

long as the liberty was taken “for the purpose of arousing or gratifying sexual desire.”

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Etheridge, 319 N.C. at 49–50; see also Hartness, 326 N.C. at 567. This is consistent

with the purpose of the indecent liberties statute, where “[t]he evil the legislature

sought to prevent . . . was the defendant’s performance of any immoral, improper, or

indecent act in the presence of a child ‘for the purpose of arousing or gratifying sexual

desire.’ ” Hartness, 326 N.C. at 567. As such, “Defendant’s purpose for committing

such an act is the gravamen of this offense; the particular act performed is

immaterial.” Id. Neither a touching nor “a showing of intent to commit an unnatural

sexual act” is required to convict a defendant under N.C.G.S. § 14-202.1(a). Id.

Neither a touching nor a sexual act is listed in the text of the indecent liberties

statute; neither is required to convict a defendant. As such, we reject the Court of

Appeals’ analysis requiring a threshold inquiry of whether an alleged indecent liberty

is a “touching” or a “sexual act.”

C. The Court of Appeals erred by utilizing a multiplicity test under Sellers instead of applying Dew’s “distinct interruption” test.

The Court of Appeals below drew on a Kansas case, State v. Sellers, 253 P.3d

20 (Kan. 2011), to determine whether Mr. Calderon’s three convictions for indecent

liberties were proper. Believing Sellers to be consistent with this Court’s ruling in

State v. Rambert, 341 N.C. 173 (1995), the Court of Appeals established a four-factor

test “for indecent liberties offenses involving multiple, non-sexual acts”:

(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the

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conduct.

Calderon, 290 N.C. App. at 354–55 (quoting Sellers, 253 P.3d at 28). However, the

Court of Appeals did not need to apply a test specifically for “non-sexual acts,” given

that no distinction between touching and sexual acts is necessary. Moreover, when

a defendant is charged with multiple counts of indecent liberties, our lower courts

should instead apply this Court’s “distinct interruptions” test articulated in State v.

Dew, 379 N.C. 64 (2021).

In Dew, the defendant alleged the trial court erred in denying his motion to

dismiss several assault charges because the State presented insufficient evidence of

multiple assaults. Id. at 68. The defendant subjected his girlfriend to “a continuous,

nonstop beating” for two hours in her family’s trailer. Id. at 65. When it ended, the

defendant’s girlfriend removed the sheets from their bed, cleaned the mattress cover,

and put their bags into the car. Id. at 66, 73–74. The defendant put his daughter

into the car, made his girlfriend get into the car, and began to drive home. Id. at 74.

At that point, he began beating his girlfriend again. Id. The defendant was charged

with five counts of assault. Id. at 67. The jury found the defendant guilty of three

counts of assault: two from his conduct inside the trailer and one from the beating in

the car. Id. at 68, 74. The defendant appealed, alleging “there was insufficient

evidence of multiple assaults such that the trial court erred by denying [his] motion

to dismiss all but one assault charge . . . .” Id. at 68.

The Court held that, taking the evidence in the light most favorable to the State,

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“there could be sufficient evidence of a distinct interruption between assault(s) in the

trailer and the assault(s) in the car to submit the issue to the jury.” Id. at 73.

However, the Court also held that there was insufficient evidence to support two

separate assault charges related to the beating in the trailer because “it was an

ongoing, continuous attack.” Id. at 74.

In analyzing whether the trial court properly denied the defendant’s motion to

dismiss, this Court articulated our “distinct interruption” test: “the State may charge

a defendant with multiple counts of assault only when there is substantial evidence

that a distinct interruption occurred between assaults.” Id. at 72. The Court

articulated a non-exhaustive list of examples that qualify as distinct interruptions,

including “an intervening event, a lapse of time in which a reasonable person could

calm down, an interruption in the momentum of the attack, a change in location, or

some other clear break delineating the end of one assault and the beginning of

another.” Id. The Court also articulated factors which, without more, do not

constitute distinct interruptions, including the victim suffering multiple injuries or

the defendant using different methods of attack. Id. at 74.

Our lower state courts should use the Dew “distinct interruptions” test to

determine whether a defendant has properly been charged with multiple counts of

indecent liberties. However, as we did in Dew, we decline to extend Rambert to

indecent liberties cases. In Rambert, the defendant was convicted of three counts of

discharging a firearm into occupied property when he fired a gun three separate

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times. State v. Rambert, 341 N.C. at 176–77. The Court held that his convictions did

not violate double jeopardy because “[e]ach shot . . . required that defendant employ

his thought processes each time he fired the weapon. Each act was distinct in time,

and each bullet hit the vehicle in a different place.” Id. From Rambert, it does not

violate double jeopardy to charge a defendant with multiple counts of discharging a

firearm into occupied property when the defendant fired a gun multiple times in a

single incident. Id.

In Dew, the Court declined to extend Rambert to assault cases because the act of

discharging a firearm differed from physical assaults. Dew, 379 N.C. at 72. We

likewise decline to extend Rambert here because the commission of indecent liberties

is more akin to assault than the discharging of a firearm. When discharging a

firearm, “each distinctly fired shot is a separate discharge of a firearm” and can

support separate charges. Id. However, for both assault and indecent liberties, each

individual contact does not necessarily constitute a separate charge. In a fight,

multiple punches could constitute a single assault charge or, if the State presents

evidence of a distinct interruption, multiple punches could constitute multiple assault

charges. Id. Similarly, in the context of indecent liberties, multiple inappropriate

acts could constitute a single charge or multiple charges, depending on the facts of

the case. Just as every punch in an assault is not necessarily a separate assault

charge, so, too, do we recognize that each inappropriate act is not necessarily a

separate indecent liberties charge. Therefore, the proper test to determine whether

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a defendant has been properly charged with multiple counts of indecent liberties is

the one we explained in Dew: whether a distinct interruption occurred, giving the

perpetrator the opportunity to reconsider his or her conduct.

D. Mr. Calderon was properly convicted of three counts of indecent liberties.

Applying Dew’s “distinct interruption” test, the trial court did not err in

denying Mr. Calderon’s motion to dismiss, and the Court of Appeals erred in

remanding to the trial court with instructions to arrest judgment on one of his

indecent liberties convictions. Viewing the evidence in the light most favorable to the

State, and drawing all inferences in its favor, a distinct interruption occurred between

each of the three kisses at issue.

In Dew, our Court was presented with facts where, at one point in the charged

assault, the State did not present evidence of a distinct interruption during a

“continuous, non-stop beating” in the same location for two hours. Dew, 379 N.C. at

65. However, we did find sufficient evidence for another, separate charge of assault

because the process of cleaning and packing after the initial beating in the trailer was

“an intervening event interrupting the momentum of the attack,” and the beating in

the trailer was “distinct in time and location” from the second beating in the car. Id.

at 74. This distinct interruption was “a lapse of time in which a reasonable person

could calm down,” giving the defendant sufficient time to consider his actions and

recognize the consequences. Id. at 72.

In Laney, the defendant touched the victim’s breast, then touched under her

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waistband. Laney, 178 N.C. App. at 338. The Court of Appeals held that the two

touches “were part of one transaction” and that “there was no gap in time between

[the] two incidents.” Id. at 341. Accordingly, the Court of Appeals held that the trial

court erred in denying the defendant’s motion to dismiss because “a single act can

support only one conviction.” Id. (quoting State v. Jones, 172 N.C. App. 308, 315

(2005)).

Mr. Calderon was convicted of three counts of taking indecent liberties with a

child for three kisses: (1) on Jocelyn’s neck outside the van, (2) on the mouth inside

the van, and (3) on the mouth inside the van six to seven minutes after the first kiss

in the van. The Court of Appeals incorrectly concluded that the two kisses inside the

van were a continuous act and thus should not have been charged separately.

Calderon, 290 N.C. at 356. However, the six-to-seven-minute break between the

kisses, in which Mr. Calderon was “joking around, talking, laughing” and cuddling

with Jocelyn was a sufficiently distinct interruption to support separate charges. The

two kisses in the van were more similar to Dew’s two separate assaults, first in the

trailer and then in the car, than the “continuous, non-stop” initial assault in the

trailer in Dew or the “one transaction” in Laney. The kisses were “not back to back.”

Instead, about six to seven minutes elapsed between each kiss, during which Mr.

Calderon had the opportunity to reconsider and choose not to reoffend. Because this

is a fact-specific inquiry, we decline to draw a brightline rule in deciding when an

interruption creates enough time for a perpetrator to reconsider, thus creating a

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distinct interruption. On these facts, six to seven minutes sufficed to create an

adequate disruption to support two separate charges. The three kisses were

sufficiently distinct to support three convictions.

As such, the trial court did not err in denying Mr. Calderon’s motion to dismiss

the charges. Because the three separate kisses could support three separate charges,

Mr. Calderon’s double jeopardy rights were not violated because he committed, and

was properly convicted of, three distinct acts of taking indecent liberties with a child.

The trial court did not violate Mr. Calderon’s double jeopardy rights or err in

instructing the jury on three counts of taking indecent liberties with a child.

III. Conclusion

The trial court properly found that Mr. Calderon committed three separate

indecent liberties when he kissed Jocelyn three times, and there was no error in Mr.

Calderon’s conviction. Thus, we reverse the Court of Appeals’ decision.

REVERSED.

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