State v. Burnette ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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.
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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.
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“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;
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 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
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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
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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
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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
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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
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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).