In this Wake County case, defendant appealed his three indecent liberties with a child convictions, arguing his actions represented only one continuous act rather than three separate incidents. The Court of Appeals majority held that the evidence only supported two convictions, not three, and remanded the case so that the trial court could arrest judgment on one of the convictions and resentence defendant accordingly. 

In 2019, defendant met the thirteen-year-old victim after a church service at the home where he rented a room in Raleigh. After a second conversation with the victim at a pool party, defendant became friends with her on social media platforms. On July 5, 2019, defendant showed up at the house where the victim lived while her grandmother was away. Testimony about the events after this varied, as the victim testified that defendant forcibly pulled her into his van and made sexual contact with her, while neighbors observed the two inside defendant’s van kissing without any apparent coercion. Defendant testified that the victim messaged him asking him to come over and that she came willingly into his van where they kissed but did not engage in other sexual conduct. After a trial, defendant was convicted of three counts for (1) kissing the victim outside his van, (2) kissing the victim on the mouth inside his van, and (3) a second count of kissing the victim on the mouth inside his van. Defendant was found not guilty of other charges related to sexual conduct with the victim. 

Taking up defendant’s appeal, the majority agreed that the evidence did not support three distinct charges of indecent liberties. The court first determined that defendant’s actions represented “touching” not “sexual acts” for purposes of the indecent liberties charges. After establishing the acts were touching, the court considered relevant caselaw on continuous transactions as opposed to separate and distinct acts. Because no North Carolina case was directly on point, the court turned to a Kansas Supreme Court decision, State v. Sellers, 292 Kan. 346 (2011), to adopt a four-factor analysis applicable to “indecent liberties offenses involving multiple, non-sexual acts.” Slip Op. at 18. The four factors are: 

(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.

Id. at 17, quoting Sellers. 

Applying the factors to the current case, the court concluded that the acts of kissing outside the van and inside the van were distinct, as they were in different locations and there was an intervening event of getting into defendant’s van before engaging in a second episode of kissing. The same framework led the court to conclude the kissing inside the van was one continuous transaction as the kisses took place close in time and were not separated by any intervening act. This supported arresting judgment on the third conviction, and resentencing defendant accordingly. 

Judge Stading concurred in part and dissented in part by separate opinion, concurring with the majority’s adoption of the test from Sellers but dissenting from the conclusion that it called for dismissal of one of the three convictions. 

The defendant, a 69 year-old male, wrote a letter to an 11 year-old girl and asked her grandmother to deliver the letter. The grandmother read the letter, in which the defendant asked the girl to have sex with him to make him “feel young again,” and called the police. The defendant was charged and convicted of engaging in indecent liberties with a minor under G.S. 14-202.1(a)(1). A person is guilty of this offense if he “[w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]”

On appeal, the defendant argued that it was error to deny his motion to dismiss at trial because there was insufficient evidence to show that he was ever “with” the minor as contemplated by the statute, or that he took any steps beyond mere preparation sufficient to constitute an “attempt” under the statute. The Court of Appeals rejected both arguments, citing to similar facts and holdings in State v. McClary, 198 N.C. App. 169 (2009). The statute does not require actual physical touching to constitute a taking or attempted taking of indecent liberties, and the delivery of the letter in this case was sufficient evidence of an attempt. Additionally, the letter itself provided adequate circumstantial evidence of the defendant’s unlawful purpose.

The trial court did not err by denying the defendant’s motion to dismiss 33 counts of statutory rape, two counts of statutory sex offense, and 17 counts of indecent liberties as to victim F.H. At trial, the victim testified to sexual contact during her relationship with the defendant; she stated that she and the defendant had vaginal intercourse at least once a week beginning the day they met, and that she performed oral sex before, during, and after each occurrence of sexual intercourse. Two additional witnesses testified to observing the defendant and the victim have sexual intercourse during this time, one of whom also testified to observing oral sex. The defendant asserted that because the State failed to provide a specific number of times that the two had sexual intercourse and oral sex and how many times the defendant touched the victim in an immoral way, the total number of counts is not supported and his motion to dismiss should have been granted. The court disagreed, concluding that although the victim did not explicitly state the specific number of times that the two had sexual relations, a reasonable jury could find the evidence sufficient to support an inference for the number of counts at issue. Specifically, the victim testified that she and the defendant had sexual intercourse at least once a week for span of seventy-one weeks.

The trial court did not err by denying the defendant’s motion to dismiss a charge of taking indecent liberties with a child. The victim testified that the defendant repeatedly raped her while she was a child living in his house and DNA evidence confirmed that he was the father of her child. The defendant argued that there was insufficient evidence of a purpose to arouse or gratify sexual desire; specifically he argued that evidence of vaginal penetration is insufficient by itself to prove that the rape occurred for the purpose of arousing or gratifying sexual desire. The court rejected the argument that the State must always prove something more than vaginal penetration in order to satisfy this element of indecent liberties. The trial court correctly allowed the jury to determine whether the evidence of the defendant’s repeated sexual assaults of the victim were for the purpose of arousing or gratifying sexual desire.

With respect to an indecent liberties charge, the State presented sufficient evidence that the defendant committed the relevant act for the purpose of arousing or gratifying sexual desire. The court noted the defendant’s purpose “may be inferred from the evidence of the defendant’s actions.” Here, the victim stated that the defendant kissed her on the mouth, told her not to tell anyone about what happened, and continued to kiss her even after she asked him to stop. The victim told the police that the defendant made sexual advances while he was drunk, kissed her, fondled her under her clothing, and touched her breasts and vagina. This evidence, along with other instances of the defendant’s alleged sexual misconduct giving rise to first-degree rape charges, is sufficient evidence to infer the defendant’s purpose.

In an indecent liberties case, the evidence was sufficient to establish that the defendant engaged in conduct for the purpose of arousing or gratifying sexual desire. While at a store, the defendant crouched down to look at the victim’s legs, “fell into” the victim, wrapping his hands around her, and kneeled down, 6-8 inches away from her legs. Other evidence showed that he had asked another person if he could hug her legs and that he admitted to being obsessed with women’s legs.

The court rejected the juvenile’s argument that the evidence was insufficient to establish indecent liberties in that it failed to show that he acted with a purpose to arouse or gratify his sexual desires. The facts showed that: the juvenile was thirteen and the victim was ten years younger; the juvenile told the victim that the juvenile’s private parts “taste like candy,” and had the victim lick his penis; approximately eleven months prior, the juvenile admitted to having performed fellatio on a four-year-old male relative. The court concluded that the juvenile’s age and maturity, the age disparity between him and the victim, coupled with the inducement he employed to convince the victim to perform the act and the suggestion of his prior sexual activity before this event, was sufficient evidence of maturity and intent to show the required element of “for the purpose of arousing or gratifying sexual desire.”

The court held that the (1) defendant, who had a custodial relationship with the child, committed an indecent liberty when he watched the child engage in sexual activity with another person and facilitated that activity; and (2) defendant’s two acts−touching the child’s breasts and watching and facilitating her sexual encounter with another person−supported two convictions.