Opinion
No. COA12–579.
2013-02-5
STATE of North Carolina v. Jessie Olin McNEELY, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State. Michael E. Casterline for defendant appellant.
Appeal by defendant from judgments entered 7 November 2011 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 25 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State. Michael E. Casterline for defendant appellant.
McCULLOUGH, Judge.
Jessie Olin McNeely, Jr. (“defendant”), appeals his convictions for two counts of indecent liberties with a child and six counts of first-degree sex offense with a child. For the following reasons, we find the jury verdicts unanimous and that the evidence supports only one conviction for first-degree sex offense based on fellatio.
I. Background
Defendant was indicted by a Forsyth County Grand Jury on two counts of indecent liberties with a child (09 CRS 33833) and six counts of first-degree sex offense with a child (09 CRS 53882 and 10 CRS 24411). The indictments for the six counts of first-degree sex offense were listed on two indictment sheets differentiated only by case number; three counts appeared on each indictment sheet.
Defendant's case came on for jury trial during the 31 October 2011 Criminal Session of Forsyth County Superior Court, the Honorable A. Moses Massey presiding. At the close of evidence, the State and defendant agreed on the jury instructions, the jury charge, and the form of the verdict sheets to be given to the jury.
On 7 November 2011, the jury returned guilty verdicts on both counts of indecent liberties with a child and on all six counts of first-degree sex offense with a child. Thereafter, the trial judge entered judgments and sentenced defendant to consecutive sentences totaling 42 months to 52 months for the convictions of indecent liberties with a child and consecutive sentences totaling 576 months to 710 months for the convictions of first-degree sex offense with a child. Additionally, the court ordered that defendant be subject to lifetime sex offender registration and lifetime satellite-based monitoring. Defendant timely appealed.
II. Analysis
On appeal, defendant contends that the trial court erred by (1) failing to sufficiently distinguish the six counts of first-degree sex offense and (2) failing to dismiss one of the two counts of first-degree sex offense based on fellatio. We address defendant's arguments in order.
Jury Unanimity
Defendant first argues that the trial court erred in failing to sufficiently distinguish the six counts of first-degree sex offense and therefore deprived defendant of his right to unanimous jury verdicts. Defendant's right to unanimous jury verdicts is guaranteed under the North Carolina Constitution and the North Carolina General Statutes. SeeN.C. Const. art. I, § 24 (“No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.”); N.C. Gen.Stat. § 15A–1201 (“In all criminal cases the defendant has the right to be tried by a jury of 12 whose verdict must be unanimous.”); N.C. Gen.Stat. § 15A–1237(b) (“The verdict must be unanimous, and must be returned by the jury in open court.”).
Defendant raises no issues concerning his convictions for indecent liberties with a child in light of our decision in State v. Carter, 198 N.C.App. 297, 679 S.E.2d 457 (2009), disc. review denied,364 N.C. 243, 698 S.E.2d 657 (2010).
“[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.” Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001). However, “[a]s a general rule, defendant's failure to object to alleged errors by the trial court operates to preclude raising the error on appeal.” State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985); see alsoN.C.R.App. P. 10(a)(1). In the present case, defendant failed to object to the jury instructions, the jury charge, and the form of the verdict sheets given to the jury. “While the failure to raise a constitutional issue at trial generally waives that issue for appeal, ... where the [alleged] error violates the right to a unanimous jury verdict under Article I, Section 24, it is preserved for appeal without any action by counsel.” State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009) (citation omitted). “This is so because ‘the right to a unanimous jury verdict is fundamental to our system of justice.’ “ State v. Gillikin, ––– N.C.App. ––––, ––––, 719 S.E.2d 164, 168 (2011) (quoting Wilson, 363 N.C. at 486, 681 S.E .2d at 331).
Pursuant to N.C. Gen.Stat. § 14–27.4(a),
[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; ...
N.C. Gen.Stat. § 14–27.4(a) (2011). Relevant to the present case, “sexual act” is defined to include anal intercourse, fellatio, and cunnilingus. SeeN.C. Gen.Stat. § 14–27.1(4).
In this case, during conference, defendant and the State agreed that the six counts of first-degree sex offense would be divided between two verdict sheets identical in all respects except for the case number. These verdict sheets differentiated the six counts of first-degree sex offense by distinguishing the sexual act constituting each offense as follows:
We the Jury, unanimously find the defendant Jessie Olin McNeely Jr:
Count I
____ Guilty of First Degree Sex Offense with Child by Engaging in Anal Sex
OR
____ Not Guilty
Count II
____ Guilty of First Degree Sex Offense with Child by Engaging in Fellatio
OR
____ Not Guilty
Count III
____ Guilty of First Degree Sex Offense with Child by Engaging in Cunninglingus [sic]
OR
____ Not Guilty
Despite agreeing to the jury instructions, the jury charge, and the form of the verdict sheets, defendant now argues that the evidence demonstrated a pattern of sexual abuse and that because the identical verdict sheets provide for multiple counts of first-degree sex offense by anal sex, fellatio, and cunnilingus without further distinguishing the sexual acts, it is ambiguous whether the jury verdicts were unanimous. We disagree.
Citing State v. Petty, 132 N.C.App. 453, 512 S.E.2d 428 (1999), defendant first contends that the sexual acts constituting first-degree sex offenses must occur in separate transactions in order to serve as the bases of separate crimes. See id. at 463, 512 S.E.2d at 435 (“We note that our Supreme Court's determination that first-degree sexual offense is a single wrong for unanimity purposes requires us to conclude that charging a defendant with a separate count of first-degree sexual offense for each alternative sexual act performed in a single transaction would result in a multiplicious indictment.”). Stated more clearly, defendant argues the six counts of first-degree sex offense cannot stand because the evidence presented lacks sufficient details to distinguish the sexual acts as discrete occurrences.
We first note that this issue does not involve jury unanimity but instead a question of multiplicity of charges. Nevertheless, since our decision in Petty, this Court has reached opposite holdings concerning multiple sexual acts in a single transaction. In State v. Williams, 201 N.C.App. 161, 689 S.E.2d 412 (2009), the defendant argued that “the trial court erred in denying his motion to dismiss at least one of the charges of first degree sexual offense ... and in sentencing him for two counts of first degree sexual offense ...” where the alleged sexual acts occurred during a single incident. Id. at 184, 689 S.E.2d at 425. In arguing his case, the defendant in Williams cited State v. Laney, 178 N.C.App. 337, 631 S.E.2d 522 (2006), where we held that a defendant who put his hands on the victim's breasts and in the victim's pants committed one act of touching and not multiple sexual acts. Id. at 341, 631 S.E.2d at 525. However, distinguishing Laney from cases where multiple sexual acts are committed, we stated:
[I]n State v. James, 182 N.C.App. 698, 643 S.E.2d 34 (2007), this Court, in distinguishing State v. 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.” James, [182] N.C.App. at 705, 643 S.E.2d at 38. Thus, this Court found that a different analytical path should be applied when dealing with “sexual acts” as opposed to touching in the context of charges of indecent liberties. Id. This Court subsequently suggested in State v. Gobal, 186 N.C.App. 308, 651 S.E.2d 279 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008), that this same logic would apply to charges of sexual offense. Gobal, 186 N.C.App. at 322 n. 7, 651 S.E.2d at 288 n. 7 (“If defendant had properly preserved this issue ... we would affirm.... Even when multiple sex acts occur in a ‘single transaction’ or a short span of time, each act is a distinct and separate offense.”).
Williams, 201 N.C.App. at 185, 689 S.E.2d at 425. Thus, in Williams, we found no error on the ground that the defendant was convicted on two counts of first-degree sex offense for sexual acts occurring simultaneously. Id. at 185, 689 S.E.2d at 426.
Similarly, we find defendant's argument meritless in the present case where
[t]he indictments each spelled out a separate and distinct fact needed to be proven by the State in order to gain a conviction, and the ... acts were distinct acts each constituting the crime of [first-degree sex offense]. The distinctive character of the acts is not altered because [the acts] occurred within a short time span.
State v. James, 182 N.C.App. 698, 705, 643 S.E.2d 34, 38 (2007). Hence, we find there to be sufficient evidence of discrete sexual offenses.
Defendant's next contention is that the trial court erred in failing to further distinguish the sexual acts on the verdict sheets and providing the jury with a general instruction on jury unanimity. Consequently, defendant asserts that it is impossible to determine whether the jury verdicts were unanimous. We disagree.
As defendant states in his brief, “[t]his Court has previously held that when the number of uniquely described specific incidents is the same as the number of guilty verdicts returned by the jury, a general instruction to the jury that they must be unanimous in order to return a verdict on any charge is sufficient to protect the defendant's right to unanimity.” See State v. Lawrence, 360 N.C. 368, 627 S.E.2d 609 (2006); State v. Wiggins, 161 N.C.App. 583, 589 S.E.2d 402 (2003).
In State v. Lawrence, although the Court noted that the evidence tended to show thirty-two separate times that defendant had sexual intercourse with the victim, the Court found that the evidence presented at trial tended to show five specific instances of statutory rape. Lawrence, 360 N.C. at 375, 627 S.E.2d at 613. Thus, where the jury returned guilty verdicts on five counts of statutory rape, the verdicts were unanimous. Id. at 376, 627 S.E.2d at 613.
In deciding Lawrence, the Supreme Court relied on our decision in State v. Wiggins, where the victim testified that she had sexual intercourse with the defendant multiple times a week for an extended period of time. Wiggins 161 N.C.App. at 593, 589 S.E.2d at 409. However, the victim specifically recounted in detail two instances of statutory sex offenses and four instances of statutory rape. Id. In deciding the case, we stated “the verdict sheets did not lack the required degree of specificity needed for a unanimous verdict if they could be properly understood by the jury based on the evidence presented at trial....” Id. Thus, we held that “where seven offenses (two statutory sexual offense and five statutory rape) were charged in the indictments, and based on the evidence presented at trial, the jury returned seven guilty verdicts, there was no danger of a lack of unanimity between the jurors with respect to the verdict.” Id.
In the present case, evidence presented at trial demonstrated a pattern of sexual abuse beginning when the victim was eight years old and living in Iredell County and continuing until the victim was nine years old and living in Forsyth County. Yet, when the victim was questioned specifically about sexual acts occurring since moving to Forsyth County, she identified two acts of anal intercourse, two acts of cunnilingus, and one act of fellatio.
In light of Lawrence and Wiggins, this evidence is sufficient to find the verdicts unanimous on each of the six counts of first-degree sex offense. Furthermore, the trial court instructed the jury that their decision must be unanimous, stating “[y]ou must be unanimous in your decision.... It may not, for example, be based on a vote of 10 to 2 nor 8 to 4, nor even 11 to 1, but only on a vote of 12 to zero. You all 12 jurors must agree.”
Defendant attempts to distinguish his case from Lawrence based on six factors noted in Lawrence. Upon review of the factors and the record before us, we find no significant distinguishing factors.
In Lawrence, the Court noted: “(1) defendant never raised an objection at trial regarding unanimity; (2) the jury was instructed on all issues, including unanimity; (3) separate verdict sheets were submitted to the jury for each charge; (4) the jury deliberated and reached a decision on all counts submitted to it in less than one and one-half hours; (5) the record reflected no confusion or questions as to jurors' duty in the trial; and (6) when polled by the court, all jurors individually affirmed that they had found defendant guilty in each individual case file number.” Lawrence, 360 N.C. at 376, 627 S.E.2d at 613.
Sufficiency of the Evidence
Defendant also argues that the trial court erred in failing to dismiss one of the two counts of first-degree sex offense based on fellatio on the basis that there was insufficient evidence to support a finding that more than one act of fellatio occurred in Forsyth County.
“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 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “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).
As previously stated, pursuant to N.C. Gen.Stat. § 14–27.4(a),
A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; ...
N.C. Gen.Stat. § 14–27.4(a). Furthermore, a “sexual act” is defined to include anal intercourse, fellatio, and cunnilingus. SeeN.C. Gen.Stat. § 14–27.1(4).
Here, defendant does not argue that there was insufficient evidence of fellatio. Instead, defendant argues there is insufficient evidence that more than one act of fellatio occurred in Forsyth County. A review of the record indicates that multiple acts of fellatio occurred. However, in response to the State's question, “How many times would you say that you put your mouth on his front part in Winston–Salem?[,]” the victim stated, “Once.”
While admitting that the victim testified that only one act of fellatio occurred in Forsyth County, the State contends that the evidence, viewed in the light most favorable to the State, supports a finding that more than one act of fellatio occurred in Forsyth County. We disagree.
The State points to testimony by the victim and a social worker that indicates fellatio occurred multiple times. However, the testimony the State asserts reveals multiple acts of fellatio does not contradict the victim's statement that fellatio occurred only once in Forsyth County. Thus, we find no substantial evidence that more than one act of fellatio occurred in Forsyth County. Therefore, the trial court erred in not dismissing one of the two counts of first-degree sex offense based on fellatio.
III. Conclusion
For the reasons discussed above, we find that the jury verdicts were unanimous and that the evidence supported only one conviction for first-degree sex offense based on fellatio. Given that the trial court consolidated the judgments for sentencing and it is unclear whether the sentence imposed would differ without considering a second conviction for first-degree sex offense based on fellatio, we reverse the judgment as to defendant's second conviction for first-degree sex offense based on fellatio and remand to the trial court for resentencing.
Reversed in part and remanded. Judges GEER and STEPHENS concur.
Report per Rule 30(e).