{
  "id": 11238541,
  "name": "STATE OF NORTH CAROLINA v. DEWEY LEROY PETTY",
  "name_abbreviation": "State v. Petty",
  "decision_date": "1999-03-02",
  "docket_number": "No. COA98-493",
  "first_page": "453",
  "last_page": "465",
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    {
      "type": "official",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "cite": "86 N.C. App. 88",
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      "year": 1995,
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    {
      "cite": "515 U.S. 1135",
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      "year": 1996,
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    {
      "cite": "516 U.S. 1148",
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      "cite": "291 N.C. 715",
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      "cite": "230 S.E.2d 425",
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      "cite": "31 N.C. App. 556",
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        8550967
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      "cite": "356 S.E.2d 361",
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    {
      "cite": "319 N.C. 656",
      "category": "reporters:state",
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        4741061
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      "cite": "206 S.E.2d 364",
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        {
          "page": "366",
          "parenthetical": "\"It was improper to have two bills of indictment and two offenses growing out of. . . one episode.\""
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    {
      "cite": "22 N.C. App. 229",
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      "cite": "373 S.E.2d 435",
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        {
          "page": "438",
          "parenthetical": "holding that the State may charge a defendant with only one count of disseminating obscenity for each separate transaction even though several obscene magazines were disseminated during each transaction"
        }
      ],
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    {
      "cite": "323 N.C. 439",
      "category": "reporters:state",
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      "case_ids": [
        2564408
      ],
      "year": 1988,
      "pin_cites": [
        {
          "page": "444",
          "parenthetical": "holding that the State may charge a defendant with only one count of disseminating obscenity for each separate transaction even though several obscene magazines were disseminated during each transaction"
        }
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      "cite": "392 S.E.2d 359",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1990,
      "pin_cites": [
        {
          "page": "360",
          "parenthetical": "upholding jury instruction that the defendant could be found guilty of first-degree sexual offense \"if [the jury] found [the] defendant [had] engaged in either fellatio or vaginal penetration\""
        }
      ],
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    {
      "cite": "326 N.C. 782",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        5305596
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      "pin_cites": [
        {
          "page": "784",
          "parenthetical": "upholding jury instruction that the defendant could be found guilty of first-degree sexual offense \"if [the jury] found [the] defendant [had] engaged in either fellatio or vaginal penetration\""
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      "cite": "317 S.E.2d 385",
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      "year": 1984,
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    {
      "cite": "311 N.C. 351",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4686925
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    {
      "cite": "326 S.E.2d 24",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "pin_cites": [
        {
          "parenthetical": "noting that the gravamen of section 90-95(a)(l), which criminalizes possession of narcotics with the intent to sell or deliver, is possession with the intent to transfer and the method of transfer is immaterial"
        }
      ],
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    },
    {
      "cite": "313 N.C. 122",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4725335
      ],
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      "pin_cites": [
        {
          "parenthetical": "noting that the gravamen of section 90-95(a)(l), which criminalizes possession of narcotics with the intent to sell or deliver, is possession with the intent to transfer and the method of transfer is immaterial"
        }
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    {
      "cite": "412 S.E.2d 308",
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      "weight": 2,
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        {
          "page": "312"
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          "page": "314"
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    {
      "cite": "330 N.C. 298",
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        2508946
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      "cite": "532 A.2d 1357",
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        2071715
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        {
          "page": "1364",
          "parenthetical": "\"In short, the law requires unanimity only in the verdict, not in the rationale upon which the verdict is based.\""
        },
        {
          "page": "1366",
          "parenthetical": "noting that courts should consider the requisite \"mental state, attendant circumstances,. .. result, [and prohibited] conduct\" in determining whether a statute criminalizes a single wrong or multiple distinct wrongs"
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      "cite": "470 S.E.2d 16",
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      "reporter": "S.E.2d",
      "year": 1996,
      "pin_cites": [
        {
          "parenthetical": "single offense of driving while impaired could be shown either by finding the defendant drove while under the influence of an impairing substance or by finding the defendant's blood alcohol concentration was 0.08 or more; therefore disjunctive jury instructions did not risk nonunanimity"
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    {
      "cite": "343 N.C. 202",
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      "case_ids": [
        798768
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    {
      "cite": "391 S.E.2d 177",
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      "weight": 4,
      "year": 1990,
      "pin_cites": [
        {
          "page": "180"
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        {
          "page": "180",
          "parenthetical": "noting that the defendant's purpose for taking an indecent liberty is the gravamen of the offense; therefore the particular act performed is immaterial"
        },
        {
          "page": "179",
          "parenthetical": "holding that disjunctive instructions did not result in a fatally ambiguous verdict in an indecent liberties case, and noting that the indecent liberties statute is \"more similar to the statute relating to first-degree sexual offense . . . than to the trafficking statute discussed in Diaz\""
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      "cite": "326 N.C. 561",
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        5306007
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          "page": "567"
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          "page": "565"
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          "page": "494"
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      "cite": "317 N.C. 545",
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        4774041
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        {
          "page": "447"
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        {
          "page": "447"
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    {
      "cite": "310 N.C. 410",
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        2403141
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          "page": "416"
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      "cite": "399 S.E.2d 305",
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          "page": "306",
          "parenthetical": "noting that children \"cannot be expected to be exact regarding times and dates, [and] a child's uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence\""
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      ],
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    {
      "cite": "328 N.C. 72",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2543912
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        {
          "page": "75",
          "parenthetical": "noting that children \"cannot be expected to be exact regarding times and dates, [and] a child's uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence\""
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      "cite": "349 S.E.2d 566",
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          "parenthetical": "noting that the prior statement of the witness \"need not merely relate to [the] specific facts brought out in the witness's [trial] testimony\""
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          "page": "574",
          "parenthetical": "noting that evidence of additional instances of sexual contact was admissible as corroborative evidence where victim had testified to a course of continuing sexual abuse"
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      "cite": "318 N.C. 457",
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        4732391
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          "page": "469",
          "parenthetical": "noting that the prior statement of the witness \"need not merely relate to [the] specific facts brought out in the witness's [trial] testimony\""
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          "page": "470"
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        {
          "page": "632"
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          "page": "632"
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          "page": "632",
          "parenthetical": "holding that the witness's prior statement that the victim was \"lying flat on his back when he was shot\" impermissibly contradicted the witness's trial testimony that the victim was \"on top of' another individual at that time"
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    "judges": [
      "Judges JOHN and HUNTER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DEWEY LEROY PETTY"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDewey Leroy Petty (Defendant) appeals from his convictions for first-degree sexual offense and taking indecent liberties with a child.\nJ.F., the prosecuting witness, testified that Defendant, a friend of her father, began sexually molesting her following her tenth birthday. Defendant began giving J.F.\u2019s father rides home from work, and J.F. saw Defendant \u201c[a]lmost every day.\u201d J.F. testified that she often went to \u201cthe stores\u201d with Defendant, and specifically named \u201cWinn-Dixie, Food Lion, Crown, Eckerd, [and] Family Dollar.\u201d Sometimes Defendant would take her brothers and sisters as well, but \u201c [sometimes\u201d Defendant would take only J.F. She testified that it was \u201c[s]cary\u201d when she went to the stores by herself with Defendant, \u201c[b]ecause every time we\u2019re alone, he would massage my private parts.\u201d J.F. testified that Defendant had often given her money, ice cream, and presents, and had given her a hundred dollars for her tenth birthday. Around the time of J.F.\u2019s tenth birthday, Defendant took her to a carnival. On this occasion, Defendant \u201ctried to hurt my \u2014 play with my body parts.\u201d J.F. testified that it was \u201ca hot night,\u201d and that Defendant pulled down her skirt to \u201cplay with [her] private parts again.\u201d J.F. testified that Defendant touched her \u201c[u]nderneath\u201d her underwear and \u201c[i]nside\u201d her \u201cprivate area.\u201d Defendant told J.F. \u201cif [she] didn\u2019t let him do it that he was going to .not be [her] dad\u2019s friend anymore.\u201d J.F. testified that on one occasion when it was \u201ccold\u201d outside, Defendant had kissed her on the lips with his mouth open, and that Defendant had kissed her \u201cprivate parts\u201d a few weeks after the carnival. This latter instance occurred in Defendant\u2019s car \u201cbehind Winn-Dixie.\u201d J.F. started screaming, but Defendant told her not to scream. J.F. pulled her pants down when Defendant told her to because \u201che was a grown-up and he was my father\u2019s friend.\u201d J.F. testified that Defendant never took any pictures of her, but had shown her a picture of a naked girl and had asked to take a picture of J.F.\u2019s \u201cprivate part.\u201d Eventually, J.F. told her mother about these incidents, and her parents immediately notified the police.\nElaine Whitman (Whitman) testified as an expert in the field of child sexual abuse. When Whitman began to testify as to statements made to her by J.F.\u2019s mother, Defendant objected and the trial court gave the following instruction:\nMembers of the jury, this is being offered for the purpose of corroborating the testimony of the later [witness], and it is for you to determine whether it does so, in fact, corroborate that testimony.\nIt\u2019s not offered for the truth or the falsity of the statement [but] as to whether that statement was made on that occasion.\nWhitman began to testify as to what J.F. had told her, and Defendant\u2019s counsel stated:. \u201cWe object as far as substantive evidence that it should only be considered for corroboration or impeachment.\u201d The trial court informed the jury: \u201cAgain, it\u2019s not been offered for the truth or falsity of the statements made, it\u2019s for you to sit and determine that.\u201d Whitman then testified that J.F. had told her that Defendant \u201chad tried to kiss her in her vaginal area, but she moved away quickly and he kissed the car seat.\u201d As Whitman continued, Defendant\u2019s counsel stated: \u201cWe just asked for an objection with the same instructions as far as anything \u2014 \u201d and the trial court again reiterated to the jury that this testimony was \u201cbeing offered for the purpose of corroborating the testimony of an earlier witness.\u201d Whitman continued to testify as to her interview with J.F., and subsequently was asked by the prosecutor whether J.F. had told her that Defendant had taken her picture. Defendant objected, but did not state the grounds for this objection. The objection was overruled, and Whitman testified that J.F. had told her that Defendant had tried to take a picture of her with \u201cher pants below her knees,\u201d but she had pulled her pants up before he could.\nAngela Jolene Stanley, M.D. (Dr. Stanley), who examined J.F., was questioned by the prosecutor as to her conversation with J.F.\u2019s mother. Defendant objected \u201cto substantive evidence.\u201d The trial court instructed the jury:\nAgain, members of the jury, this is being offered for the purpose of corroborating [an] earlier or a later witness, and it will be for you to say and determine whether it does in fact corroborate that witness\u2019s testimony. It is not being offered for the truth or falsity of the statement but the fact that the statement was made.\nDr. Stanley was then allowed to testify as to what J.F.\u2019s mother told her J.F. had said. Defendant repeatedly made general objections, which were overruled. Defendant did not object on hearsay grounds, nor did Defendant seek a ruling from the trial court as to whether this evidence was corroborative.\nOfficer Wayne Redford (Officer Redford) testified that during his interview of J.F., she told him that on one occasion she pulled away from Defendant and he \u201cgrabbed her and pulled her back over under him and made her pull her panties down again\u201d and continued to fondle her. Defendant moved to strike this testimony, and the trial court denied this motion.\nAt the close of the evidence, Defendant\u2019s counsel made the following statements during his closing argument to the jury:\nA lot that we\u2019ve talked about is burden of proof, proof beyond a reasonable doubt, and if you would, if you\u2019d imagine a scale, let\u2019s say from zero to ten, zero would be innocence and ten would be guilty, and if you went to that scale, you went up to maybe 5.1 or 5.2 on a scale of ten, that certainly wouldn\u2019t be proof beyond a reasonable doubt. We\u2019d say you have to get maybe to 9.7 or 9.8 on that scale, and [the trial court] will talk about that.\nI think [the trial court will] tell you that proof beyond a reasonable doubt is proof that fully satisfies and entirely convinces. Basically, you have to be sure.\nDuring the State\u2019s closing argument, the prosecutor stated:\nOne of the things that the judge will talk to you about and [Defendant\u2019s counsel] talked to you about and I argue and contend to you, that this case isn\u2019t about boulders or scales from one to ten.\nYou\u2019re not going to hear the judge tell you anything about number one to ten.\nBut if you think of it in those terms, I would argue to you that about all the State has to do is show you a real strong seven. We\u2019re not talking about 90.8 or 90.9, and we\u2019re not talking about scales at all.\nDefendant did not object to these statements. The trial court subsequently charged the jury as to reasonable doubt as follows:\n' The State must prove to you that [Defendant is guilty beyond a reasonable doubt.\nA reasonable doubt is a doubt based on reason and common sense arising out of some or all the evidence that has been presented or the lack or insufficiency of the evidence, as the case may be.\nProof beyond a reasonable doubt is proof that, if you will, sits nice or entirely convinces you of [Defendant's guilt.\nThe trial court instructed the jury that for the charge of first-degree sexual offense which allegedly occurred in November of 1994, \u201cthe State must satisfy you beyond a reasonable doubt that there was penetration, however slight, with an object into the genital opening of a person\u2019s body.\u201d For the first-degree sexual offense which allegedly occurred in January of 1995, \u201cthe State would have to show you beyond a reasonable doubt that [Defendant] engaged in a sexual act which was cunnilingus, with \u2014 or any penetration, however slight, by an object into the genital area of a person\u2019s body.\u201d After instructing the jury as to the remaining elements of the charged offenses, the trial court instructed the jury that \u201ca verdict is not a verdict until all 12 jurors are unanimous as to what your decisions are. You may not render a verdict by a majority opinion.\u201d\nAfter the jury began its deliberation, they asked the trial court to clarify the elements of each offense. In its clarification, the trial court instructed the jury concerning the first element of first-degree sexual offense as follows:\n[T]hat [Defendant engaged in a sexual act with the victim. A sexual act means cunnilingus, which is any touching, however slight, by the lips or the tongue of one person to any part of the female sex organ of another, or any penetration, however slight, by an object into the genital opening of a person\u2019s body.\nThe jury found Defendant guilty of taking indecent liberties with J.F. in November of 1994 and in January of 1995. The jury also found Defendant guilty of attempted first-degree sexual offense in November of 1994 and of first-degree sexual offense in January of 1995.\nThe issues are whether: (I) noncorroborative testimony was improperly admitted; (II) the disjunctive jury instructions on first-degree sexual offense created a risk of a nonunanimous verdict; and (III) the prosecutor\u2019s closing argument impermissibly lowered the burden of proof such that the trial court should have intervened ex mero mo tu.\nI\nCorroborative evidence is evidence that tends \u201cto strengthen, confirm, or make more certain the testimony of another witness.\u201d State v. Adams, 331 N.C. 317, 328-29, 416 S.E.2d 380, 386 (1992). \u201cPrior consistent statements of a witness are admissible as corroborative evidence, even when the witness has not been impeached.\u201d State v. Burton, 322 N.C. 447, 449-50, 368 S.E.2d 630, 632 (1988); see 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7\u00a7 164-65 (5th ed. 1998) (noting that North Carolina allows wide latitude in the admission of prior consistent statements to corroborate a witness). Corroborative evidence may include \u201cnew or additional information\u201d if the new information tends to strengthen or add credibility to the testimony it corroborates. Burton, 322 N.C. at 450, 368 S.E.2d at 632; State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573-74 (1986) (noting that the prior statement of the witness \u201cneed not merely relate to [the] specific facts brought out in the witness\u2019s [trial] testimony\u201d). The witness\u2019s prior statements that contradict her trial testimony, however, may not be admitted \u201cunder the guise\u201d of corroborating testimony. Burton, 322 N.C. at 450, 368 S.E.2d at 632 (holding that the witness\u2019s prior statement that the victim was \u201clying flat on his back when he was shot\u201d impermissibly contradicted the witness\u2019s trial testimony that the victim was \u201con top of\u2019 another individual at that time).\nIn this case, Defendant contends Whitman\u2019s testimony impermis-sibly contradicted J.F.\u2019s testimony in several particulars. Whitman testified that J.F. had told her that one instance of sexual contact occurred behind Kroger, whereas J.F. testified to an event that occurred behind Winn Dixie. Whitman also testified that J.F. had told her the touching started after her ninth birthday and occurred about twice a week. Although J.F. testified that the touching started following her tenth birthday, and only testified to two specific instances in detail, she testified that she saw Defendant almost every day, that she and Defendant sometimes went to various stores alone, and that \u201cevery time we\u2019re alone, he would massage my private parts.\u201d J.F. further testified that Defendant made improper advances when the weather was \u201chot\u201d and when it was \u201ccold.\u201d J.F.\u2019s testimony indicated a course of continuing sexual abuse; therefore, any new or additional instances of abuse in Whitman\u2019s testimony tended to strengthen J.F.\u2019s trial testimony. See Ramey, 318 N.C. at 470, 349 S.E.2d at 574 (noting that evidence of additional instances of sexual contact was admissible as corroborative evidence where victim had testified to a course of continuing sexual abuse); cf. State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991) (noting that children \u201ccannot be expected to be exact regarding times and dates, [and] a child\u2019s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence\u201d).\nAlthough Defendant directs this Court to further testimony by Whitman which he contends was contradictory rather than corroborative, Defendant did not object to this testimony on the ground that it was outside the scope of corroborative testimony. Instead, Defendant merely requested the trial court to instruct the jury that the evidence was offered only for corroborative purposes. Accordingly, Defendant failed to preserve these alleged errors for appellate review. See N.C.R. App. P. 10(b)(1) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d (emphasis added)). We note that had Defendant raised the question of whether the evidence offered was admissible as corroborative evidence, the trial court could have conducted a voir dire hearing outside the presence of the jury to make such a determination. See State v. Stills, 310 N.C. 410, 416, 312 S.E.2d 443, 447 (1984).\nDefendant also contends portions of Dr. Stanley\u2019s testimony were inadmissible as multiple hearsay. Although we disapprove of the admission of \u201chearsay statements three or four times removed from the original declarant under the guise of corroborating the corroborative witnesses,\u201d see Stills, 310 N.C. at 416, 312 S.E.2d at 447, a defendant must object on that ground, giving the trial court the opportunity to correct any perceived error, in order to preserve the question for appellate review, N.C.R. App. P. 10(b)(1). Defendant failed to make an objection on hearsay grounds to the trial court and therefore has failed to preserve this question for our review.\nDefendant further contends the testimony of Officer Redmond placed an additional instance of sexual contact before the jury. As noted above, however, J.F. testified to a continuing course of sexual abuse; therefore, the additional instance contained in Officer Redmond\u2019s testimony was properly admitted as corroborative evidence.\nII\nOur state constitution provides that \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d N.C. Const, art. 1, \u00a7 24; see also N.C.G.S. \u00a7 15A-1237(b) (1997) (requiring unanimous jury verdicts). If the trial court instructs a jury that it may find the defendant guilty of the crime charged on either of two alternative grounds, some jurors may find the defendant guilty of the crime charged on one ground, while other jurors may find the defendant guilty on another ground. Where each alternative ground constitutes a separate and distinct offense, the risk of a nonunanimous verdict arises. State v. Diaz, 317 N.C. 545, 553, 346 S.E.2d 488, 494 (1986) (jury instructions that the defendant could be found guilty of trafficking if he either possessed or transported marijuana resulted in a verdict which risked nonunanimity because \u201ctransportation . . . and possession of. . . marijuana are separate trafficking offenses for which a defendant may be separately convicted and punished\u201d). There is no risk of a nonunanimous verdict, however, where the statute under which the defendant is charged criminalizes \u201ca single wrong\u201d that \u201cmay be proved by evidence of the commission of any one of a number of acts . . . ; [because in such a case] the particular act performed is immaterial.\u201d State v. Hartness, 326 N.C. 561, 566-67, 391 S.E.2d 177, 180 (1990) (single crime of taking indecent liberties with a child could be proven by showing various types of sexual conduct had occurred, and therefore no risk of nonunanimity arose from jury instructions that the defendant could be found guilty of the crime if he either indecently touched the child or if he induced the child to indecently touch him); see State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996) (single offense of driving while impaired could be shown either by finding the defendant drove while under the influence of an impairing substance or by finding the defendant\u2019s blood alcohol concentration was 0.08 or more; therefore disjunctive jury instructions did not risk nonunanimity); cf. Rice v. State, 532 A.2d 1357, 1364 (Md. 1987) (\u201cIn short, the law requires unanimity only in the verdict, not in the rationale upon which the verdict is based.\u201d).\nThere is a critical difference between the lines of cases represented by Diaz and Hartness. The [Diaz] line establishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. The [Hartness] line establishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.\nState v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991).\nOur courts consider the \u201cgravamen\u201d or \u201cgist\u201d of the statute to determine whether it criminalizes a single wrong or multiple discrete and separate wrongs. Hartness, 326 N.C. at 567, 391 S.E.2d at 180 (noting that the defendant\u2019s purpose for taking an indecent liberty is the gravamen of the offense; therefore the particular act performed is immaterial); State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985) (noting that the gravamen of section 90-95(a)(l), which criminalizes possession of narcotics with the intent to sell or deliver, is possession with the intent to transfer and the method of transfer is immaterial); cf. Rice, 532 A.2d at 1366 (noting that courts should consider the requisite \u201cmental state, attendant circumstances,. .. result, [and prohibited] conduct\u201d in determining whether a statute criminalizes a single wrong or multiple distinct wrongs).\nFinally, if we determine that the statute criminalizes two or more discrete and separate wrongs, we must examine the verdict, the charge, the jury instructions, and the evidence to determine whether any ambiguity as to unanimity has been removed. Lyons, 300 N.C. at 307, 412 S.E.2d at 314; State v. Foust, 311 N.C. 351, 317 S.E.2d 385 (1984).\nThe statute at issue in this case provides:\n(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:\n(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim ....\nN.C.G.S. \u00a7 14-27.4(a) (Supp. 1997). A \u201csexual act,\u201d as used in section 14-27.4, includes: \u201ccunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person\u2019s body . . . .\u201d N.C.G.S. \u00a7 14-27.1(4) (1993). Section 14-27.4\u2019s gravamen, or gist, is to criminalize the performance of a sexual act with a child. The statutory definition of \u201csexual act\u201d does not create disparate offenses, rather it enumerates the methods by which the single wrong of engaging in a sexual act with a child may be shown. Furthermore, our Supreme Court has expressly determined that disjunctive jury instructions do not risk nonunani-mous verdicts in first-degree sexual offense cases. State v. McCarty, 326 N.C. 782, 784, 392 S.E.2d 359, 360 (1990) (upholding jury instruction that the defendant could be found guilty of first-degree sexual offense \u201cif [the jury] found [the] defendant [had] engaged in either fellatio or vaginal penetration\u201d); Hartness, 326 N.C. at 565, 391 S.E.2d at 179 (holding that disjunctive instructions did not result in a fatally ambiguous verdict in an indecent liberties case, and noting that the indecent liberties statute is \u201cmore similar to the statute relating to first-degree sexual offense . . . than to the trafficking statute discussed in Diaz\u201d).\nIn this case, the trial court instructed the jury that it could find Defendant guilty of a first-degree sexual offense if, in addition to the other elements of first-degree sexual offense, it found that Defendant had \u201cengaged in a sexual act which was cunnilingus, with \u2014 or any penetration, however slight, by an object into the genital area of a person\u2019s body.\u201d This charge was not error, because the single wrong of engaging in a sexual act with a minor may be established by a finding of various alternatives, including cunnilingus and penetration. Cunnilingus and penetration are not disparate crimes, but are merely alternative ways of showing the commission of a sexual act. The trial court\u2019s disjunctive instruction therefore did not risk a nonunanimous verdict. As in Hartness, \u201c[e]ven if we assume that some jurors found that [cunnilingus] occurred and others found that [penetration] transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct\u201d constituting the single crime of engaging in a sexual act with a child. See Hartness, 326 N.C. at 565, 391 S.E.2d at 179.\nWe note that our Supreme Court\u2019s determination that first-degree sexual offense is a single wrong for unanimity purposes requires us to conclude that charging a defendant with a separate count of first-degree sexual offense for each alternative sexual act performed in a single transaction would result in a multiplicious indictment. If the defendant engages in alternative sexual acts in separate transactions, however, each separate transaction may properly form the basis for charging the defendant with a separate count of first-degree sexual offense. Compare State v. Smith, 323 N.C. 439, 444, 373 S.E.2d 435, 438 (1988) (holding that the State may charge a defendant with only one count of disseminating obscenity for each separate transaction even though several obscene magazines were disseminated during each transaction) and State v. Dilldine, 22 N.C. App. 229, 231, 206 S.E.2d 364, 366 (1974) (\u201cIt was improper to have two bills of indictment and two offenses growing out of. . . one episode.\u201d) with State v. Dudley, 319 N.C. 656, 356 S.E.2d 361 (1987) (noting that each act of sexual intercourse is generally a distinct and separate offense and where the defendant raped the first victim, then attempted to rape the second victim, then raped the first victim again, it was proper to charge the defendant with two counts of rape of the first victim) and State v. Small, 31 N.C. App. 556, 558, 230 S.E.2d 425, 427 (1976) (noting that the defendant was properly charged with two counts of rape where he dragged the victim into some bushes and raped her, then the victim attempted to lure him to a friend\u2019s apartment so she could get help, then the defendant again dragged her into some bushes and raped her a second time), disc. review denied, 291 N.C. 715, 232 S.E.2d 207 (1977).\nIll\nFinally, Defendant contends the prosecutor \u201cimpermissibly lowered the burden of proof\u2019 during her closing argument to the jury, and despite Defendant\u2019s failure to object, the trial court should have corrected the prosecutor\u2019s argument ex mero mo tu.\nThe prosecutor\u2019s closing argument statements concerning \u201cscales from one to ten\u201d followed Defendant\u2019s counsel\u2019s closing argument statements that if zero was innocent and ten was guilty, then the jury would \u201chave to get maybe to 9.7 or 9.8 on that scale.\u201d In addition, the prosecutor explicitly informed the jury that \u201cthis case isn\u2019t about. . . scales from one to ten. . . . [Wje\u2019re not taking about scales at all.\u201d Viewing the closing arguments of both defense counsel and the prosecutor in context, see State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996), the trial court\u2019s failure to intervene ex mero mo tu was not an abuse of discretion. Furthermore, any prejudice which may have resulted from the prosecutor\u2019s argument was remedied by the trial court\u2019s instruction on reasonable doubt. See State v. Rose, 339 N.C. 172, 197, 451 S.E.2d 211, 225 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995) (noting that any possible error was remedied by the trial court\u2019s instruction that \u201c[a] reasonable doubt is a doubt based on reason and common sense, arising out of some or all of the evidence that has been presented, or lack or insufficiency of the evidence as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant\u2019s guilt\u201d). The trial court herein stated:\nA reasonable doubt is a doubt based on reason and common sense arising out of some or all the evidence that has been presented or the lack or insufficiency of the evidence, as the case may be.\nProof beyond a reasonable doubt is proof that, if you will, sits nice or entirely convinces you of [Defendant's guilt.\nThis is substantially the same instruction on reasonable doubt approved by our Supreme Court in Rose. Although the trial court\u2019s use of the phrase \u201csits nice\u201d was improper, taken in the context of the trial court\u2019s overall instruction, this phrase did not prejudice Defendant.\nNo error.\nJudges JOHN and HUNTER concur.\n. We note that prior to the Supreme Court\u2019s decision in McCarty, this Court reversed a conviction for first-degree sexual offense where jury instructions had been given in the disjunctive. State v. Callahan, 86 N.C. App. 88, 356 S.E.2d 403 (1987). Callahan was implicitly overruled by our Supreme Court\u2019s contrary holding in McCarty. In any event, it is well settled that this Court is bound by the holdings of our Supreme Court. Mahoney v. Ronnie\u2019s Road Service, 122 N.C. App. 150, 153, 468 S.E.2d 279, 281 (1996), aff'd per curiam, 345 N.C. 631, 481 S.E.2d 85 (1997).\n. An indictment is multiplicious if it charges a single offense in several counts. See N.C.G.S. \u00a7 15A-924(a)(2) (1997) (\u201cA criminal pleading must contain... [a] separate count addressed to each offense charged ....\u201d); N.C.G.S. \u00a7 15A-926(a) (1997) (\u201cTwo or more offenses may be joined in one pleading . . . when the offenses . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.\u201d). \u201cThe principle danger in multiplicity is that the defendant will receive multiple sentences for a single offense .... Multiplicity does not require dismissal of the indictment, [but] the defendant will be entitled to relief from an improperly imposed multiple sentence . ...\u201d 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure \u00a7 19.2, at 457-58 (1984).",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney ' General Jane Rankin Thompson, for the State.",
      "Wyatt, Early, Harris & Wheeler, L.L.P., by Stanley F. Hammer, for defendant-appellant (Robert H. Edmunds, Jr., filed the record and appellant\u2019s brief)."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DEWEY LEROY PETTY\nNo. COA98-493\n(Filed 2 March 1999)\n1. Evidence\u2014 corroborative \u2014 contradictory\nThe trial court did not err in a prosecution for indecent liberties and sexual offenses by admitting evidence which defendant argued contradicted rather than corroborated statements made by the victim but the victim\u2019s testimony indicated a course of continuing sexual abuse and any new or additional instances of abuse tended to strengthen her trial testimony.\n2. Sexual Offenses \u2014 instructions\u2014nonunanimous\nThere was no error in a prosecution for indecent liberties and sexual offenses against a child where the court instructed the jury that it could find defendant guilty of a first-degree sexual offense if it found that defendant had engaged in either of two acts. The single wrong of engaging in a sexual act with a minor may be established by a finding of various alternatives, which are merely alternative ways of showing the commission of a sexual act. Even if some jurors found that one act occurred and others found that the other act transpired, the jury as a whole would unanimously find that there occurred sexual conduct constituting the single crime of engaging in a sexual act with a child. However, it was noted that charging a defendant with a separate count of first-degree sexual offense for each alternative sexual act performed in a single transaction would result in a multiplicious indictment.\n3. Criminal Law \u2014 prosecutor\u2019s closing argument \u2014 reasonable doubt\nThe trial court did not err in a prosecution for first-degree sexual offense and taking indecent liberties with a minor by not intervening ex mero motu in the prosecutor\u2019s argument concerning reasonable doubt where defendant had argued that the jury would have to get to 9.7 or 9.8 on a scale of one to ten and the prosecutor argued for a seven and explicitly informed the jury that the case was not about scales at all. Moreover, any prejudice was remedied by the trial court\u2019s instruction on reasonable doubt, which was substantially the same as an instruction approved by the Supreme Court with the addition of the phrase \u201csits nice.\u201d That phrase was improper but not prejudicial.\nAppeal by defendant from judgments filed 5 December 1995 by Judge C. Preston Cornelius in Guilford County Superior Court. Heard in the Court of Appeals 12 January 1999.\nAttorney General Michael F. Easley, by Assistant Attorney ' General Jane Rankin Thompson, for the State.\nWyatt, Early, Harris & Wheeler, L.L.P., by Stanley F. Hammer, for defendant-appellant (Robert H. Edmunds, Jr., filed the record and appellant\u2019s brief)."
  },
  "file_name": "0453-01",
  "first_page_order": 487,
  "last_page_order": 499
}
