State v. Johnson, ___ N.C. App. ___, 801 S.E.2d 123 (May. 2, 2017)

In this case where the defendant was charged with three counts of first-degree sex offense with a child and three counts of sex offense by a substitute parent, the trial court’s jury instructions did not allow for a non-unanimous verdict. The indictments charged that the offenses all occurred within the same date range and did not provide details distinguishing the incidents. The evidence at trial showed multiple sexual interactions between the defendant and the victim. In its instructions to the jury, the trial court differentiated between the offenses based on where they were alleged to have occurred: inside the house, outside the house but on the property, and at the end of a dirt road near the house. The court rejected the defendant’s argument that the trial court failed to sufficiently identify the incidents, thereby depriving him of his right to a unanimous jury verdict. Specifically, he asserted that the evidence presented at trial showed multiple, distinct incidents of sexual assault occurring inside the house and multiple, distinct instances of sexual assault occurring outside the house but on the property. The court rejected the defendant’s arguments, noting that prior case law has held no violation of the unanimity rule occurs in sexual assault cases even if the jurors considered a greater number of incidents than the number of counts charged and if the indictments lacked specific details to identify the specific incidents. It concluded: “Jury unanimity was shown as there was evidence of fellatio inside the house both at the computer table and in the bathroom, or that there was evidence of fellatio outside the house but on the property both inside a car and in the driveway.”

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