An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                                -2-
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.
                                      -3-
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.
                                                  -4-
       “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;
                                      -5-

             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
                                          -6-
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
                                            -7-
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
                                        -8-
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
                                                 -9-
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
                              -10-
    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).
