State v. Calderon, COA22-822, ___ N.C. App. ___ (Sept. 5, 2023)

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.