State v. Lyons

Judge COZORT

concurring in part and dissenting in part.

I concur with that portion of the majority opinion which finds no error in the trial of the charges of assault with a deadly weapon and conspiracy. I dissent, however, with the portion of the majority opinion which grants a new trial on the charge of secret assault.

I believe the majority errs in holding that a new trial is necessary on the charge of secret assault under the Supreme Court’s ruling in State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). Rather, I find this case is controlled by State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990). In Hartness, our Supreme Court was reviewing the defendant’s conviction of taking indecent liberties with a minor. The defendant contended that the trial court erred by giving an instruction which allowed the jury to split its decision regarding which alleged immoral act by defendant against the minor constituted the offense, thereby rendering the verdict potentially nonunanimous. Id. at 563, 391 S.E.2d at 178. In finding no error in the judge’s instruction, the Supreme Court stated:

This Court in Diaz reversed a conviction for trafficking in marijuana on the grounds that it was obtained upon-a fatally ambiguous disjunctive instruction. The jury had been instructed to return a guilty verdict if it found that defendant “knowingly possessed or knowingly transported marijuana.” Id. at 553, 346 S.E.2d at 494. This Court noted that transportation and possession of marijuana “are separate trafficking offenses for which a defendant may be separately convicted and punished” and that by instructing the jury as he did, the trial judge “submitted two possible crimes to the jury.” Id. at 554, 346 S.E.2d at 494. This Court found the instruction to be fatally ambiguous because it was impossible to determine whether all of the jurors found possession, all found transportation, or some found one and some the other.

The reasoning in Diaz is misapplied in the present context. The risk of a nonunanimous verdict does not arise in cases such as the one at bar because the statute proscribing indecent liberties does not list, as elements of the offense, discrete criminal activities in the disjunctive in the same manner as does the trafficking statute. The trafficking statute at issue in Diaz, N.C.G.S. § 90-95(h)(l) (1985), enumerates the following proscribed activities: sale, manufacturing, delivery, transportation, and possession. Each is a discrete criminal offense. By contrast, N.C.G.S. § 14-202.1 proscribes simply “any immoral, improper, or indecent liberties.” Even if we assume that some jurors found that one type of sexual conduct occurred and others found that another transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of “any immoral, improper, or indecent liberties.” Such a finding would be sufficient to establish the first element of the crime charged.

Id. at 564-65, 391 S.E.2d at 179.

The Court further stated:

As the statute indicates, the crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts. 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.

Id. at 567, 391 S.E.2d at 180.

I find Hartness applicable to the present situation. Defendant commits the crime of secret assault, a single offense, by shooting at either Douglas Jones, Preston Jones, or both. The possibility that jurors may disagree upon which person defendant shot would not affect the unanimity of the jury’s decision that the defendant committed the secret assault. I vote no error.