An unpublished opinion of the North Carolina Court of Appeals does not constitute 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