State v. Hartness

• Decision Date: 10 May 1990
• Docket Number: No. 258PA89,258PA89
• Citation: 391 S.E.2d 177,326 N.C. 561
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Claude E. HARTNESS.

Page 177

391 S.E.2d 177

326 N.C. 561

STATE of North Carolina v. Claude E. HARTNESS.

No. 258PA89.

Supreme Court of North Carolina.

May 10, 1990.

Lacy H. Thornburg, Atty. Gen. by Marilyn R. Mudge, Asst. Atty. Gen., Raleigh, for the State-appellant.

Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellee.

MEYER, Justice.

Defendant was indicted for one count of first-degree rape, two counts of first-degree sexual offense, two counts of felony child abuse, three counts of taking indecent liberties with a minor, and one count of incest. He was tried before a jury at the 9 May 1988 Session of Superior Court, Cherokee County, the Honorable Robert M. Burroughs presiding. Defendant was found guilty of two counts of felony child abuse and three counts of taking indecent liberties with a minor. He was sentenced to three consecutive five-year sentences for the indecent liberties convictions and consecutive sentences of two years for the two child abuse convictions. Defendant appealed to the Court of Appeals, which awarded defendant a new trial on the grounds that the trial court had committed reversible error in its instruction on indecent liberties. State v. Hartness, 94 N.C.App. 224, 381 S.E.2d 202. On 28 June 1989, this Court allowed the State's motion for temporary stay and petition for writ of supersedeas and, on 7 September 1989, allowed the State's petition for discretionary review.

For purposes of this appeal, we need only discuss the evidence relevant to the issue of whether the trial court's jury charge on indecent liberties was error. We accordingly limit our discussion to those facts which are relevant to this issue.

The State's evidence tended to show that defendant engaged in various forms of sexual relations with his daughter, who was seven years old at the time of trial, and his stepson, who was nine years old at the time of trial. The boy testified at trial that defendant touched the boy's "hotdog" with both his hands and his mouth. The boy identified his "hotdog" as his penis and additionally testified that defendant induced him to touch defendant's penis with his hands and mouth.

The trial judge relied upon the pattern jury instructions in his charge to the jury on indecent liberties. He instructed the jury as to the first element of the offense as follows:

Now, I charge that for you to find the defendant guilty of taking an indecent liberty with a child the State must prove three things beyond a reasonable doubt.

1. That the defendant wilfully took an indecent liberty with a child for the purpose of arousing or gratifying sexual desire.

An indecent liberty is an immoral, improper or indecent touching or act by the defendant upon the child, or an inducement by the defendant of an immoral or indecent touching by the child.

On appeal to the Court of Appeals, defendant contended that the trial court committed plain error in using the above instruction because it improperly permitted his conviction by less than a unanimous verdict. The relevant constitutional provision is N.C. Const. art. I, § 24, which provides that "[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court." See also N.C.G.S. § 15A-1237(b) (1983). Defendant contends that the trial court's disjunctive phrasing as to the acts allegedly constituting indecent liberties in this case--defendant's touching of his stepson or the stepson's touching of defendant--rendered the verdict potentially nonunanimous. Defendant surmises that the jury could have split in its decision regarding which act constituted the offense, making it impossible for the court to determine whether the jury was unanimous in its verdict.

The Court of Appeals agreed with defendant and awarded him a new trial. In doing so, the court relied upon its recent decision in State v. Britt, 93 N.C.App. 126, 377 S.E.2d 79 (1989), in which an identical instruction was found to be reversible error.

In Britt, the defendant had been convicted of both first-degree sexual offense and indecent liberties and had challenged the trial court's instructions as to both offenses on grounds of lack of unanimity. The Court of Appeals concluded that the instruction on indecent liberties was susceptible to a unanimity challenge because it "point[ed] out three distinct types of acts which would constitute taking indecent liberties," id. at 133, 377 S.E.2d at 83, and reversed the trial court decision since it could not "determine which act or acts the jury found that defendant committed," id.

In arriving at its decision, the Court of Appeals applied reasoning set forth by this Court in a drug trafficking case, State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). Because we do not believe that the Diaz analysis should be extended to cover the pattern instructions typically given in cases involving indecent liberties, we reverse the Court of Appeals on this issue.

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)(1) (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.

In our analysis of the indecent liberties statute, we find its structure and intent to be more similar to the statute relating to first-degree sexual offense, N.C.G.S. § 14-27.4 (1986), than to the trafficking statute discussed in Diaz. The sexual offense statute provides that a person is guilty of the first element of the offense if he engages in a "sexual act" with certain enumerated categories of individuals. N.C.G.S. § 14-27.4(a) (1986). We find our earlier analysis in State v. Foust, 311 N.C. 351, 317 S.E.2d 385 (1984), to be particularly instructive in our interpretation of both the sexual offense and the indecent liberties statutes.

In Foust, the indictment charged defendant with unlawfully engaging in a sexual act with the victim, but the indictment did not specify what act was performed. The State's evidence tended to show that defendant engaged in both fellatio and anal intercourse with the victim. The trial court instructed the jury that the State was required to prove four elements beyond a reasonable doubt, the first being that a sexual act occurred. A sexual act was explained as meaning "oral sex or anal sex." Id. at 359, 317 S.E.2d at 390. This Court found that the trial court clearly informed the jurors that they must agree on all the elements before a verdict of guilty could be reached, and further found that the jury was given instructions on the requirement of unanimity. This Court was therefore satisfied that these instructions, when read as a whole, required a verdict of not guilty if all twelve jurors were not satisfied beyond a reasonable doubt that the defendant engaged in an unlawful sexual act, and noted that nothing in the record indicated any confusion, misunderstanding, or disagreement among the members of the jury which would indicate a lack of unanimity.

The statutes proscribing the indecent liberties and first-degree sexual offense are readily distinguishable from a statute such as the trafficking provision at issue in Diaz. Unfortunately, in Diaz, this Court overruled Foust without applying an appropriate analysis of the distinctions between the two types of statutes. We now conclude that we erred in Diaz when we overruled Foust.

In arriving at our decision, we utilize, in addition to Foust, the cases of Jones v. All American Life Ins. Co., 312 N.C. 725, 325 S.E.2d 237 (1985), and State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985), to illustrate our rationale.

In Jones, a civil action brought by a beneficiary of a life insurance policy to recover the proceeds, the plaintiff contended that submission of a disjunctive issue of whether plaintiff killed or procured the killing of the...