State v. Calderon

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-822

Filed 05 September 2023

Wake County, Nos. 19 CRS 212773, 19 CRS 217371

STATE OF NORTH CAROLINA

v.

PEDRO ISAIAS CALDERON, Defendant.

Appeal by defendant from judgments entered 8 September 2021 by Judge

Keith O. Gregory in Wake County Superior Court. Heard in the Court of Appeals 26

April 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Sarah Grace Zambon, for the State.

Leslie Rawls for Defendant-Appellant.

CARPENTER, Judge.

Pedro Isaias Calderon (“Defendant”) appeals from judgments entered after a

jury convicted him of three counts of indecent liberties with a child. On appeal,

Defendant argues the trial court erred by: (1) denying his motions to dismiss for

insufficient evidence; (2) instructing the jury on three charges of indecent liberties

with a child, which were based on three acts of kissing a minor child (“Jocelyn”)1 on

1 Pseudonyms are used for all relevant persons throughout this opinion to protect the

identity of the minor child.

Opinion of the Court

the same date; and (3) failing to arrest judgment on two of the three charges for

indecent liberties. As to all three issues, Defendant contends the evidence of

Defendant kissing Jocelyn supports only a single, continuous act rather than three

separate and distinct acts. Consequently, Defendant argues the three indecent-

liberties-with-a-child convictions violate his right to be free from double jeopardy. To

the extent Defendant argues the evidence does not support three convictions of

indecent liberties, we agree. We conclude the evidence relating to acts of kissing

supports only two counts of indecent liberties. Accordingly, we remand to the trial

court with instructions to arrest judgment on one of the indecent-liberties convictions

and for resentencing.

I. Factual & Procedural Background

The events giving rise to the charges in this case occurred on 5 July 2019. The

evidence presented at trial tended to show the following: Between June and July

2019, Jocelyn was thirteen years old and lived with her mother, grandmother, and

three younger siblings in a townhome located in Raleigh, North Carolina. Jocelyn’s

grandmother took care of Jocelyn and her siblings, while Jocelyn’s mother worked to

support the family. During June and July, Jocelyn attended church services and

youth church events, which were held about once per month at “Mary’s” home.

“Marvin” and Defendant both rented a room in Mary’s home. Marvin

sometimes worked with Defendant, and the two became friends. Marvin was an “old

friend” of Jocelyn’s grandmother and family and was like “an older brother” to

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Jocelyn. Marvin would take Jocelyn and her sister to the store to “buy stuff for the

house.”

In June 2019, Jocelyn first met Defendant after a church service in Mary’s

home. Defendant approached Jocelyn while she was eating, sat next to her, and

asked her if she “liked [Marvin].” Defendant also asked Jocelyn “if [she] was 18 [years

old],” to which she responded, “no.” Outside Jocelyn’s presence, Defendant told

Marvin that Jocelyn “had a big ass,” and Marvin told Defendant “not to joke around

that way because [Jocelyn] was young.” Nothing else happened that day between

Defendant and Jocelyn.

Jocelyn next saw Defendant about four days later at a church-run youth pool

party at Mary’s house, following a Sunday church service. Defendant had a

conversation with Jocelyn and “asked for [her] Instagram.” He also asked for her

Facebook profile, and they “be[came] friends” on the social media platform.

Defendant and Jocelyn messaged daily through Facebook Messenger for “a week or

two.” Through these messages, Defendant asked Jocelyn if they could go to the

movies together, sent her photos, and told Jocelyn he wanted to touch her.

On the morning of 5 July 2019, Jocelyn saw Defendant in person for a third

time when he came to her home. Prior to Defendant’s arrival, Jocelyn’s grandmother

had left their home in a taxi, taking Jocelyn’s oldest sibling to a dental appointment,

and leaving Jocelyn and her younger siblings asleep in the home. Jocelyn, and her

neighbors who witnessed Defendant in the parking lot of Jocelyn’s home, testified for

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the State and recalled the events that transpired on 5 July 2019. Defendant also took

the stand and testified on his own behalf. Jocelyn’s version of events differed from

those of Defendant and the neighbors.

Jocelyn testified that on the morning of 5 July 2019, she went outside to take

out the trash and saw an old, dark-blue van parked in front of her home. Jocelyn saw

someone in the van and recognized that person as Defendant. According to Jocelyn,

she started to walk back to her home, and Defendant got out of the van, “grabb[ing]”

her. She told Defendant that her “grandmother was going to come back any second .

. . .” Defendant “started kissing [her] neck,” which left bruising, or “hickeys,” on her

neck.

Defendant pulled Jocelyn in the driver’s seat, lifted her shirt, and licked her

breasts. Jocelyn tried to push Defendant off her, but he would not let her go.

Defendant “got on top” of Jocelyn to close the passenger door. He then pulled down

her pants, licked her vagina, and “put his two fingers in.” Defendant moved to the

passenger seat where he asked Jocelyn if she “wanted to get on top of him” or perform

oral sex on him; Jocelyn responded “no” to both questions. Defendant kissed her

again on the neck while inside the van. A taxi pulled up beside Defendant’s van,

carrying Jocelyn’s grandmother and sister. Jocelyn got out of the van and went to

the home of her next-door neighbors, “Natalie” and “Danielle,” who were standing

outside. Jocelyn admitted she had never spoken to these neighbors before this date,

and she did not tell them what happened in the van.

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Natalie witnessed Jocelyn and Defendant together on 5 July 2019 and testified

to the following: Natalie was standing on her porch, about ten steps away from a blue

van, when she noticed Jocelyn was inside the vehicle with an older man. Jocelyn and

the man were “laying in the car, kind of cuddled up,” laughing, and “holding a

conversation.” She witnessed Jocelyn and Defendant kiss twice; “six to seven

minutes” passed between the two kisses. Natalie did not observe: (1) any sexual act

take place, (2) Defendant touching Jocelyn’s chest, (3) Jocelyn sitting on Defendant’s

lap, or (4) Jocelyn attempt to push or kick Defendant. Defendant and Jocelyn

remained in the vehicle for a total of forty-five minutes, until a taxi pulled up carrying

members of Jocelyn’s family. Jocelyn quickly crawled over Defendant’s lap and

stepped outside the van from the front passenger door. Jocelyn approached Natalie,

Danielle, and their young nephew, and began to speak with them, although Jocelyn

had never interacted with them before. Defendant drove away.

Natalie’s sister, Danielle, who was seventeen years old at the time, also

witnessed Jocelyn with Defendant on 5 July 2019. Danielle testified she had not

spoken to Jocelyn before the 5 July incident but was aware of Jocelyn’s approximate

age because Danielle observed Jocelyn “getting off the middle school bus” with

Danielle’s younger brother. Danielle witnessed Defendant kiss Jocelyn “at least once

or twice.” She believed Jocelyn was in the van for ten or fifteen minutes.

Lastly, Defendant recollected the events of 5 July 2019. Defendant testified

Jocelyn sent him a message stating, “[c]ome save your girlfriend,” before he left for

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her townhome on the morning of 5 July 2019. Defendant went to the address Jocelyn

gave him, and he texted her when he arrived. Jocelyn responded, “I’ll be right out.”

Defendant waited outside of the van for about a minute before Jocelyn came out of

the home, “came right straight to [Defendant], threw her arms around [Defendant],

and . . . starting kissing [him].” Jocelyn asked Defendant to “[k]iss [her] on the neck”

while they were in the parking lot outside the van, and he did so. Defendant admitted

to kissing Jocelyn on the lips as well as on the neck, and that the bruising on Jocelyn’s

neck was “probably from [him] kissing her . . . .”

Defendant could see a man looking out the window of Jocelyn’s home, and

Jocelyn stated it was her uncle, whom she did not want Defendant to meet at that

time. Defendant and Jocelyn entered the van through the driver’s side door at

Jocelyn’s request because she did not want her grandmother to see her outside, and

they kissed again once inside. Defendant took a photo of himself with Jocelyn as they

sat in the front seat of the van. Defendant and Jocelyn’s meeting came to an end

when Jocelyn’s grandmother arrived home. Defendant asked if could meet Jocelyn’s

grandmother, to which Joycelyn responded, “[n]ot yet.” Jocelyn got out of the van

and went towards her neighbors who were standing outside.

Defendant further testified he did not: (1) try to pull off Jocelyn’s pants; (2)

perform oral sex on Jocelyn; (3) digitally penetrate Jocelyn’s vagina; (4) lick or touch

Jocelyn’s breasts; or (5) try to have sexual contact with Jocelyn. Defendant believed

Jocelyn was twenty years old because “she looked like she was 20 and she told [him

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that].” He also believed Jocelyn had children because he saw Jocelyn taking care of

children at a prior church service. Defendant admitted asking Marvin at the church

service where Defendant first met Jocelyn, if Jocelyn was married or had children;

Marvin explained the children were Jocelyn’s siblings, and Marvin told Defendant

not to get involved with Jocelyn.

On 5 July 2019, Jocelyn’s grandmother, Jocelyn’s mother, and Marvin

discovered Defendant’s relationship with Jocelyn. Marvin and Jocelyn’s

grandmother arrived at Mary’s home to confront Defendant. Defendant “took off

running” and drove away; he did not return to Mary’s home. Defendant was reported

to the police.

On 29 August 2019, a Wake County grand jury indicted Defendant on three

counts of indecent liberties with a child, in violation of N.C. Gen. Stat. § 14-

202.1(a)(2), and one count of second-degree kidnapping, in violation of N.C. Gen. Stat.

§ 14-39. On 21 October 2019, a Wake County grand jury indicted Defendant on two

additional counts of indecent liberties with a child, in violation of N.C. Gen. Stat. §

14-202.1(a)(2). Both indictments alleged that the offenses charged were committed

on 5 July 2019.

On 17 September 2019, two arrest warrants were issued against Defendant.

The first warrant was based on two counts of statutory sex offense with a child, and

the second warrant was based on two counts of indecent liberties with a child. On 30

September 2020, Defendant was arraigned in open court and pled not guilty to all

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counts.

On 30 August 2021, a jury trial began before the Honorable Keith O. Gregory

in Wake County Superior Court. The trial court instructed the jury on five counts of

indecent liberties with a child, one count of second-degree kidnapping, and two counts

of statutory sex offenses.

The jury found Defendant guilty of three counts of indecent liberties with a

child. The jury’s verdicts specified they found: (1) “that [D]efendant kissed the alleged

victim on the neck, outside of the van,” (2) “that [D]efendant kissed the alleged victim

on the mouth, inside of the van,” and (3) “that [D]efendant kissed the alleged victim

on the mouth for a second time, inside of the van.” The jury found Defendant not

guilty of: (1) one count of second-degree kidnapping, (2) two counts of statutory sex

offense, and (3) two counts of indecent liberties with a child based on the actions of

“pull[ing] up the alleged victim’s bra and lick[ing] and kiss[ing] her breast” and

“ask[ing] the alleged victim to perform oral sex[.]”

The trial court sentenced Defendant to three consecutive active sentences of

imprisonment for a minimum of sixteen months and a maximum of twenty-nine

months each (counts one and two in file number 19 CRS 212773 and count three in

file number 19 CRS 217371). Defendant gave notice of appeal in open court following

the entry of judgment.

II. Jurisdiction

This Court has jurisdiction to address Defendant’s appeal pursuant to N.C.

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Gen. Stat. § 7A-27(b)(1) (2021) and N.C. Gen. Stat. § 15A-1444(a) (2021).

III. Issues

The issues before this Court are whether the trial court erred in: (1) denying

Defendant’s motions to dismiss on the basis the evidence established a single,

continuous act that could not support three separate counts of indecent liberties; (2)

instructing the jury on three indecent liberties charges—all based on the acts of

kissing; and (3) failing to arrest judgment on any of the three counts of indecent

liberties.

IV. Motion to Dismiss

We first consider Defendant’s argument as to his motions to dismiss the

charges. As a preliminary matter, we consider Defendant’s preservation of this issue.

Here, at the close of the State’s evidence, Defendant moved to dismiss based on

insufficient evidence and alleged the charges violated his rights under the Fifth,

Sixth, and Fourteenth Amendments of the United States Constitution and Article I,

Section 19 of the North Carolina Constitution. Defendant renewed his motion to

dismiss at the close of all evidence. We conclude Defendant properly preserved his

argument for appeal. See N.C. R. App. P. 10(a)(1).

A. Standard of Review

“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) (citation omitted).

“Upon defendant’s motion for dismissal, the question for the Court is whether there

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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 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117

(1980)).

“In reviewing challenges to the sufficiency of evidence, we 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, 430 S.E.2d 914, 918 (1993)

(citation omitted).

B. Analysis

Defendant maintains the evidence to support the indecent-liberties charges

establishes “a single, continuous act” because he kissed Jocelyn three times “in a very

brief period,” and his conduct only constituted a single type of act: kissing. The State

counters that it “provided substantial evidence to support three counts of indecent

liberties with a child that are at issue in this appeal.” The State points to Jocelyn’s

testimony that Defendant kissed her neck and left bruising; Natalie’s and Danielle’s

testimonies, which showed Defendant kissed Jocelyn once or twice in the van; and

Defendant’s brief on appeal in which he admits to kissing Jocelyn three times. For

the reasons explained below, we agree with Defendant that the evidence does not

support three separate and distinct acts for purposes of determining counts of

indecent liberties.

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North Carolina General Statute Section 14-202.1 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. Gen. Stat. § 14-202.1(a) (2021). “[T]he State must present substantial evidence

of each of the following elements: (1) the defendant was at least 16 years of age, (2)

he was five years older than his victim, (3) he willfully took or attempted to take an

indecent liberty with the victim, (4) the victim was under 16 years of age at the time

the alleged act or attempted act occurred, and (5) the action by the defendant was for

the purpose of arousing or gratifying sexual desire.” State v. Every, 157 N.C. App.

200, 205, 578 S.E.2d 642, 647 (2003) (citation omitted); see also N.C. Gen. Stat. § 14-

202.1(a).

Here, the uncontested evidence shows Defendant was forty years old, and

Jocelyn was thirteen years old at all relevant times. Thus, Defendant was older than

sixteen years of age and “at least five years older” than Jocelyn, and Jocelyn was

“under the age of [sixteen] years.” See N.C. Gen. Stat. § 14-202.1(a). Defendant does

not dispute that he took indecent liberties with Jocelyn or that the action was “for the

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purpose of arousing or gratifying sexual desire.” See Every, 157 N.C. App. at 205, 578

S.E.2d at 647; see also N.C. Gen. Stat. § 14-202.1(a). Instead, Defendant only contests

the number of indecent-liberties counts with which he was charged and convicted.

With respect to the three indecent-liberties counts at issue on appeal, there was

testimony from Jocelyn, two neighbors of Jocelyn, and Defendant, which tended to

show that Defendant kissed: (1) Jocelyn’s neck, leaving bruising; and (2) Jocelyn on

the mouth twice, while inside the van.

1. No Sexual Acts

As a threshold issue, we must consider whether the kissing in this case was a

“touching” or a “sexual act.” Because Defendant’s conduct falls outside the statutory

definition of “sexual act,” we conclude Defendant’s acts underlying his convictions for

indecent liberties constitute non-sexual acts.

In indecent-liberties cases in North Carolina, our Appellate Courts have

utilized a different analytical approach when considering acts of touching as opposed

to sexual acts. State v. Williams, 201 N.C. App. 161, 185, 689 S.E.2d 412, 425 (2009).

We note a physical touching is not a required element of indecent liberties with a

child under N.C. Gen. Stat. § 14-202.1. State v. Nesbitt, 133 N.C. App. 420, 423, 515

S.E.2d 503, 506 (1999). Furthermore, Section 14-202.1 neither defines nor requires

a “sexual act,” although the North Carolina General Statutes define “sexual act”

under Chapter 14, Article 7B – Rape and other Sex Offenses. See N.C. Gen. Stat. §

14-27.20(4) (2021) (A “sexual act” means “[c]unnilingus, fellatio, analingus, or anal

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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”).

Hence, an act taken “for the purpose of arousing or gratifying sexual desire,”

see N.C. Gen. Stat. § 14-202.1(a)(1), is not necessarily a “sexual act,” as defined by

N.C. Gen. Stat. § 14-27.20(4). See N.C. Gen. Stat. § 14-27.20(4); see also State v.

James, 182 N.C. App. 698, 705, 643 S.E.2d 34, 38 (2007) (acknowledging the

defendant’s act of fondling the victim’s breast was a “touching,” whereas the

defendant’s acts of oral sex and intercourse with the child were “sexual acts”). A

sexual act may concurrently support charges for both a first-degree sexual offense

and an indecent-liberties offense. State v. Manley, 95 N.C. App. 213, 217, 381 S.E.2d

900, 902 (holding “the definitional elements of first-degree sex offense [under Section

14-27.4(a)(1)] and indecent liberties are different,” and therefore, concurrent

convictions do not violate double jeopardy principles), disc. rev. denied, 325 N.C. 712,

388 S.E.2d 467 (1989).

The State relies on numerous cases involving sexual acts in arguing that there

is “overwhelming evidence” in the instant case of three indecent liberties counts

because “the kissing was not continuous and was broken up by talking[ and]

hugging[.]” See, e.g., James, 182 N.C. App. at 704–05, 643 S.E.2d at 38

(characterizing the defendant’s conduct as sexual acts where the defendant

performed oral sex on the victim and forced sexual intercourse upon her); State v.

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Midyette, 87 N.C. App. 199, 202, 360 S.E.2d 507, 509 (1987) (“[T]he evidence showed

[the] defendant penetrated the victim’s vagina with his penis on three distinct

occasions . . . .”); State v. Small, 31 N.C. App. 556, 558, 230 S.E.2d 425, 426 (1976)

(holding the trial court did not err in denying the defendant’s motion for nonsuit on

a charge of rape); State v. Coleman, 200 N.C. App. 696, 706, 684 S.E.2d 513, 520

(2009) (concluding the defendant completed two separate acts: touching the victim’s

breasts and “watching and facilitating” the victim engage in sexual intercourse with

a third person). After careful examination of the cases upon which the State relies,

we find the State’s argument unpersuasive in light of the issues before this Court

involving a “touching” as opposed to a “sexual act.” Although there may be overlap

between indecent liberties cases involving touching and cases concerning sexual acts,

we note the challenged convictions in the instant case exclusively involve touching.

Therefore, our analysis falls in line with our jurisprudence regarding acts of touching

in the context of an indecent-liberties offense. See Williams, 201 N.C. App. at 185,

689 S.E.2d at 425.

2. Separate & Distinct Acts

Having concluded the three kisses were not sexual acts, we now must

determine whether the three acts were separate and distinct occurrences, or one

continuous occurrence, with respect to the charges for indecent liberties under N.C.

Gen. Stat. § 14-202.1. In doing so, this Court must examine the facts underlying each

charge. State v. Rambert, 341 N.C. 173, 176, 459 S.E.2d 510, 512 (1995). It is well

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established that “a defendant may be found guilty of multiple crimes arising from the

same conduct so long as each crime requires proof of an additional or separate fact.”

James, 182 N.C. App. at 704, 643 S.E.2d at 38 (citation omitted); see also State v.

Lawrence, 360 N.C. 368, 374, 627 S.E.2d 609, 612–13 (2006) (affirming three

indecent-liberties convictions where the jury heard testimony regarding at least three

specific acts on three separate occasions, and the jury returned a guilty verdict for

each count of indecent liberties). In interpreting criminal statutes, our Court “must

. . . strictly construe[ the statutes] against the State.” State v. Smith, 323 N.C. 439,

444, 373 S.E.2d 435, 438 (1988) (citations omitted).

Generally, “a single act [of taking indecent liberties] can support only one

conviction.” State v. Jones, 172 N.C. App. 308, 315, 616 S.E.2d 15, 20 (2005).

Nonetheless, this Court has held “multiple sexual acts even in a single encounter,

may form the basis for multiple [counts] of indecent liberties.” James, 182 N.C. App.

at 705, 643 S.E.2d at 38 (emphasis added). Similarly, we have held rape is generally

“not a continuous offense, but each act of intercourse constitutes a distinct and

separate offense.” Small, 31 N.C. App. at 559, 230 S.E.2d at 427. “A continuing

offense . . . is a breach of the criminal law not terminated by a single act or fact, but

which subsists for a definite period and is intended to cover or apply to successive

similar obligations or occurrences.” State v. Johnson, 212 N.C. 566, 570, 230 S.E.

319, 322 (1937) (emphasis added).

In State v. James, the defendant touched the victim’s breasts, performed oral

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sex on the victim, and then had sexual intercourse with her. James, 182 N.C. App.

at 704, 643 S.E.2d at 38. Even though we concluded the act of touching the victim

occurred within the “same transaction” as the two sexual acts upon the victim, we

upheld the defendant’s three convictions of indecent liberties with a child, counting

the touching act and the two sexual acts each as additional or separate facts for

purposes of charging the defendant. Id. at 705, 643 S.E.2d at 38.

This Court has yet to annunciate specific factors the trial court should consider

in determining whether multiple, non-sexual acts constitute separate and distinct

acts for purposes of an indecent-liberties prosecution. Rather, we have focused on the

temporal proximity of the acts and any intervening events. See State v. Laney, 178

N.C. App. 337, 341, 631 S.E.2d 522, 525 (2006). In Laney, the defendant touched the

victim’s breasts while she slept in her bed. Id. at 338, 631 S.E.2d at 523. After the

victim pushed the defendant’s hand away, the defendant touched the victim under

the waistband of her pants. Id. at 338, 631 S.E.2d at 523. On appeal, this Court

analyzed the trial court’s denial of the defendant’s motion to dismiss. Id. at 339–41,

631 S.E.2d at 523–25. We held that two acts of touching, where “there was no gap in

time between two incidents of touching,” constituted a single act that could only

support one conviction. Id. at 341, 631 S.E.2d at 525 (emphasis added). In vacating

one judgment for an indecent liberties conviction, we reasoned that “[t]he sole act

[supporting the conviction] was touching—not two distinct sexual acts.” Id. at 341,

631 S.E.2d at 525 (emphasis added).

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Our Supreme Court considered the question of what constitutes a continuous

transaction, as opposed to three separate and distinct acts, in the context of analyzing

three counts of discharging a firearm, which we believe is relevant to our analysis in

the case sub judice. Rambert, 341 N.C. at 176–77, 459 S.E.2d at 513. The Court

examined the defendant’s firing of three shots from a non-automatic weapon and

explained: (1) the defendant “employ[ed] his thought processes each time he fired the

weapon,” (2) each firing of the gun was “distinct in time,” and (3) each bullet hit the

vehicle in a “different place.” Id. at 177, 459 S.E.2d at 513 (emphasis added). Based

on these facts, the Court “conclude[d] that [the] defendant’s conviction and sentencing

on three counts of discharging a firearm into [an] occupied property did not violate

double jeopardy principles.” Id. at 177, 459 S.E.2d at 513.

Similarly, the Kansas Supreme Court has set out “four guiding factors” in

determining whether convictions arise from the same conduct, which we believe

consolidate the relevant factors set forth by the Rambert Court with the factors this

Court has previously used in indecent liberties cases where no sexual act is at issue:

(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 conduct.

State v. Sellers, 292 Kan. 346, 357, 253 P.3d 20, 28 (2011) (citation omitted). We

believe the “fresh impulse” factor closely aligns with the Rambert factor concerning a

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defendant’s employing his thought process and making a conscious decision to act.

See Rambert, 341 N.C. at 177, 459 S.E.2d at 513. Likewise, the temporal and location

factors mirror the Rambert factors applied to the discharging-of-a-firearm offense.

Finally, our line of indecent liberties cases involving touching has previously

considered gaps in time and the presence of intervening events, or lack thereof. See

Laney, 178 N.C. App. at 341, 631 S.E.2d at 525 (concluding “there was no gap in time

between two incidents of touching”); see also State v. Ramos, No. COA05-1109, 2006

N.C. App. LEXIS 671, *9 (N.C. Ct. App. 2006) (unpublished) (concluding “arrest of

judgment was not warranted as the evidence shows an intervening event”—the child

sleeping—“between the initial acts of kissing and the subsequent acts of kissing and

touching of the child’s breast”); State v. Crosby, No. COA16-172, 2016 N.C. App.

LEXIS 1182, *10 (N.C. Ct. App. 2016) (unpublished) (distinguishing the facts from

Laney on the grounds the State’s evidence tended to show “at least three separate

and distinct indecent liberties taken by [the] defendant, separated by gaps of time”).

We therefore adopt these four factors annunciated in Sellers with respect to our

analytical framework for indecent liberties offenses involving multiple, non-sexual

acts.

In Sellers, the defendant touched the victim on the breast while lying next to

her in her bed. Sellers, 292 Kan. at 358, 253 P.3d at 29. The defendant got up from

the bed and left the room to check on a barking dog. Id. at 358, 253 P.3d at 29. About

thirty to ninety seconds later, the defendant returned to the bed and touched the

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victim’s vagina with his fingers. Id. at 358, 253 P.3d at 29. The Sellers court reasoned

that the defendant “had to make a second conscious decision to touch [the victim]”;

thus, both counts of indecent liberties were supported by separate and distinct acts

by the defendant. Id. at 360, 253 P.3d at 29–30.

Here, viewing the evidence in the light most favorable to the State, Defendant

kissed Jocelyn on her neck, leaving bruising, when they were outside of the van.

Shortly thereafter, Defendant and Jocelyn climbed into the van, where they remained

for up to forty-five minutes. In the van, they talked, cuddled, and kissed twice on the

mouth—the two kisses occurring within a timeframe of fifteen minutes or less. Based

on this evidence, the acts of Defendant kissing Jocelyn on the neck and kissing

Jocelyn on the mouth occurred in two separate locations. See Sellers, 292 Kan. at

357, 253 P.3d at 28. After Defendant got into the van, Defendant had an opportunity

to consider his conduct—and leave the scene—yet chose to kiss Jocelyn again. Like

the defendant in Sellers, Defendant made a conscious decision—after an intervening

event, i.e., relocating inside the private area of the van—to take indecent liberties

again. See id. at 357, 253 P.3d at 28. Thus, there is substantial evidence to support

one count of indecent liberties based on kissing outside the van and one count of

indecent liberties based on kissing inside the van. See Fritsch, 351 N.C. at 378, 526

S.E.2d at 455.

Nevertheless, because the two kisses that occurred inside the van took place

in fifteen minutes or less and were not separated by any intervening act, we conclude

- 19 -

these actions by Defendant constituted a single, “continuing offense.” See Johnson,

212 N.C. at 570, 230 S.E. at 322; Sellers, 292 Kan. at 357, 253 P.3d at 28. Accordingly,

there was not substantial evidence of two counts of indecent liberties with a child

occurring inside the van. See Fritsch, 351 N.C. at 378, 526 S.E.2d at 455. Therefore,

we conclude the trial court erred by denying Defendant’s motions to dismiss as to one

charge. See id. at 378, 526 S.E.2d at 455. We remand to the trial court with

instructions to arrest judgment upon one of Defendant’s convictions for indecent

liberties with a child under file number 19 CRS 212773 and for a new sentencing

hearing. See State v. Posner, 277 N.C. App. 117, 123, 857 S.E.2d 870, 873 (2021)

(remanding to the superior court for arrest of judgment and resentencing where the

defendant’s two larceny convictions were based on the same transaction); see also

State v. Fields, 374 N.C. 629, 636, 843 S.E.2d 186, 191 (2020) (quoting State v.

Pakulski, 326 N.C. 434, 439–40, 390 S.E.2d 129, 131–32 (1990) (“While we agree in

certain cases an arrest of judgment does indeed have the effect of vacating the verdict,

we find that in other situations an arrest of judgment serves only to withhold

judgment on a valid verdict which remains intact.”)).

V. Conclusion

We conclude the trial court erred by denying Defendant’s motion to dismiss

because there was not substantial evidence of three counts of indecent liberties with

a child; rather, the evidence supported only two counts. We therefore remand the

matter to the trial court with instructions to arrest judgment upon one of Defendant’s

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convictions for indecent liberties and conduct a new sentencing hearing.

NO ERROR IN PART; REMANDED FOR ARRESTING JUDGMENT AND

RESENTENCING.

Judge HAMPSON concurs.

Judge STADING concurs in part and dissents in part by separate opinion.

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No. COA22-691 – State v. Calderon

STADING, Judge, concurring in part and dissenting in part.

Being bound by the decisions of this Court in State v. Laney, 178 N.C. App.

337, 631 S.E.2d 522 (2006), State v. James, 182 N.C. App. 698, 643 S.E.2d 34 (2007),

and State v. Williams, 201 N.C. App. 161, 689 S.E. 412 (2009), I accept as presently

authoritative the majority’s position that there is a different analytical path applied

to “sexual acts” and “touching” in the context of charges of indecent liberties. This

being so, I concur in the majority’s conclusion that the adopted test is imperative to

distinguish between multiple acts of touching. However, I would note that panels of

this Court and future litigants could benefit from the guidance of our Supreme Court

concerning whether the judicially-constructed distinction between “sexual acts” and

“touching,” not found in the statute, is appropriate. I respectfully dissent from the

ultimate holding of the majority opinion and would find that there are three separate

and distinct acts when applying the adopted test.

“Where a panel of the Court of Appeals has decided the same issue, albeit in a

different case, a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.” In re Appeal from Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citations omitted). Therefore, we are

required to remain on the trail first blazed in State v. Laney, in which a panel of our

Court decided that a “defendant’s acts of touching the victim’s breasts and putting

Justice Stading, concurring in part

his hand inside the waistband of her pants were part of one transaction” and “[t]he

sole act involved was touching—not two distinct sexual acts.” 178 N.C. App. at 341,

631 S.E.2d at 525. The Court also noted that “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.” Id. While the Court’s consideration of “no gap

in time” between the two incidents merits weight, the emphasis on “touching” may

have been improvident. Id.

A year later, in State v. James, this trajectory continued when a panel of our

Court wrestled with “a fact pattern similar to” State v. Laney. James, 182 N.C. App.

at 704, 643 S.E.2d at 38. Although, the facts of State v. James were different in that

“[h]ere, there was both touching and two distinct sexual acts in a single encounter.”

Id. at 705, 643 S.E.2d at 38. The Court upheld the defendant’s conviction of three

counts of indecent liberties and distinguished the case in “that the Laney Court

emphasized the sole act alleged was touching, and ‘not two distinct sexual acts’” and

“[t]his language indicates that multiple sexual acts, even in a single encounter, may

form the basis for multiple indictments for indecent liberties.” Id. (quoting Laney,

178 N.C. App. at 341, 631 S.E.2d at 524). While the panel of this Court in State v.

James was required to reconcile Laney with their decision, it continued the legacy of

delineation between “touching” and “sexual acts.” Id.

Shortly thereafter, in State v. Williams, another panel of our Court was faced

with deciding whether the result of State v. Laney permitted a defendant’s “conviction

2

of, and punishment for, two counts of [a] first degree sexual offense . . . during a single

incident” or “violate[d] his double jeopardy rights.” Williams, 201 N.C. App. at 184,

689 S.E.2d at 425. There, this Court quoted the language of State v. James

differentiating “mere touching” and “sexual acts.” Id. at 185, 689 S.E.2d at 425

(quoting James, 178 N.C. App at 705, 643 S.E.2d at 38). Further continuing down

the path of its quoted predecessor panels, the opinion ordained “that a different

analytical path should be applied when dealing with ‘sexual acts’ as opposed to

touching in the context of indecent liberties.” Id.

Going forward under the existing paradigm presents a concerning requirement

for the appellate courts to distinguish between “touching” and “sexual acts” when

applying the indecent liberties statute. As the facts present in this case—a 40-year-

old man kissing a 13-year-old-child in this context—is the exact type of perverse,

criminal behavior anticipated by the statute. As recognized by the panel in State v.

James:

The evil the legislature sought to prevent in this context 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.” Defendant’s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.

182 N.C. App. at 704, 643 S.E.2d at 38 (quoting State v. Hartness, 326 N.C. 561, 567,

391 S.E.2d 177, 180 (1990)). Here, after determining that the acts are covered by the

statute, the only remaining question should be whether the acts are distinct for

3

purposes of double jeopardy. However, existing jurisprudence from the Court of

Appeals forces current and future panels to draw lines between the types of acts to

reach a result. And, absent the analysis required by our Court’s precedent, such

distinction between “touching” and “sexual acts” is not necessary—if acts occur within

a single encounter, then such acts form the basis for a separate conviction if: (1) “the

indictments each spell[ ] out a separate and distinct fact . . . to be proven by the

State[,]” or (2) the same act ends and begins as determined by the test adopted in this

opinion. James, 182 N.C. App. at 705, 643 S.E.2d at 38. Therefore, to prevent

confusion for future courts and litigants, clarification from above would be beneficial.

Nonetheless, at the present time, we must analyze the case sub judice in

accordance with existing precedent. To reach its conclusion, the majority

prudentially applies an analytical framework adopted from State v. Sellers, 292 Kan.

346, 357, 253 P.3d 20, 28 (2011). In doing so, the majority weighs the four guiding

factors and reaches the conclusion that defendant committed two separate and

distinct acts of indecent liberties with a minor. While I agree that the test adopted

by the majority is appropriate for determining when the same act ends and begins, I

would find that defendant committed three separate and distinct acts.

In the matter before us, in a light most favorable to the State, defendant kissed

Jocelyn on her neck outside of the van once and then inside of the van “twice, and it

was not back to back.” See State v. Irwin, 304 N.C. 93, 98, 282 S.E.2d 439, 443 (1981)

(citations omitted). There was a “break in between” the kisses in the van of “six to

4

seven minutes.” In applying the guiding factors from Sellers to the particular facts

presented by this case, I would conclude that the separation of six to seven minutes

is distinct in time, permitting defendant to employ his thought process and make a

conscious decision to engage in the same act a second time. See State v. Sellers, 292

Kan. at 357, 253 P.3d at 28; State v. Rambert, 341 N.C. 173, 176, 459 S.E.2d 510, 512

(1995). This conclusion squares with the demands of double jeopardy as well as the

result of State v. Laney, in which “there was no gap in time between two incidents of

touching. . . .” 178 N.C. App. at 341, 631 S.E.2d at 525. Accordingly, I would find

that the trial court did not err by denying defendant’s motion to dismiss, by

instructing the jury on three charges of indecent liberties with a child, nor by

declining to arrest judgment upon one of the three convictions for indecent liberties.

5