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  "name": "STATE OF NORTH CAROLINA v. JOHNNY CLAY BREWER",
  "name_abbreviation": "State v. Brewer",
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    "judges": [
      "Judges WYNN and TIMMONS-GOODSON concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. JOHNNY CLAY BREWER"
    ],
    "opinions": [
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        "text": "MARTIN, Chief Judge.\nDefendant was charged with three counts of first-degree sexual offense, three counts of taking indecent liberties with a child, and three counts of crimes against nature. Upon motion by defendant at the close of the State\u2019s evidence, the trial court dismissed the three counts of crimes against nature and one count of first-degree sexual offense alleged to have occurred oh or about 14 June 2002. The jury found defendant guilty of the five remaining charges. The trial court imposed two consecutive sentences of 384 to 470 months imprisonment.\nThe State presented evidence at trial which tended to show the following: defendant lived with his girlfriend, S.E., in Alamance County near Burlington, North Carolina. M.E., S.E.\u2019s eight-year-old daughter, lived with her father. After not seeing her mother for over six months, M.E. went to visit her at her home with defendant several times in the spring and early summer of 2002. The first few weekends that M.E. visited, she testified that no \u201cbad touching\u201d occurred. On the fourth weekend she visited, M.E. testified that she walked in on her mother and defendant having sex. Although they saw M.E. enter the room, they did not stop having intercourse or cover their bodies. When they stopped, S.E. asked M.E. if she wanted to do it too. M.E. said no, and then defendant performed oral sex on S.E. in front of M.E. They again asked if M.E. wanted to participate, and this time M.E. agreed. Defendant began to perform oral sex on M.E., but he stopped when M.E. said she did not like it. S.E.\u2019s testimony corroborated M.E.\u2019s description of these events. M.E. did not tell her father or anyone else about what happened that weekend.\nBeginning May 31, the last day of school, M.E. went to stay with her mother and defendant for two weeks. At trial, M.E. and S.E. testified to numerous sexual acts that occurred between defendant and M.E. during this two-week visit. M.E. testified that approximately the day after she arrived, defendant put some \u201cslick stuff\u2019 on his penis, and while she lay on her stomach, he put his penis between her legs above her knees. He moved his body up and down for about five minutes. He did not put his penis in her vagina. M.E. testified that this happened two or three times during her two-week visit. M.E. also testified that later the same night, defendant licked her breasts.\nS.E. testified that on the first or second day of the visit, she talked M.E. into letting defendant perform oral sex on her. At the time, S.E., M.E., defendant, and defendant\u2019s six-year-old son, J.D.B., were all in the bedroom naked. After defendant performed oral sex on M.E., he asked J.D.B. if he wanted to try it. According to S.E.\u2019s testimony, J.D.B. put his mouth on M.E.\u2019s vagina.\nS.E. further testified that defendant\u2019s ten-year-old niece, J.B,, came to visit during the middle weekend of M.E.\u2019s two-week visit. That Saturday night, she and M.E. convinced J.B., who was hesitant to participate, to take her clothes off along with them. They went into the bedroom with defendant, and S.E., M.E., and J.B. lay down on the bed with S.E. in the middle. Defendant performed oral sex on all three of them. M.E.\u2019s testimony corroborated this event, but she could not remember exactly when it took place.\nS.E. described an act, which she called \u201cslick-legging,\u201d that defendant had done to M.E. about three times during the two-week visit. This was the same act M.E. described where defendant, using a lubrication, put his penis between M.E.\u2019s legs while she lay on her stomach. S.E. said one of the times defendant performed this act on M.E. was on the Friday of the last week of the two-week visit, which was 14 June 2002. M.E. went back to her father\u2019s house the next day.\nS.E. testified as to other sexual acts which occurred during M.E.\u2019s two-week visit, including: M.E. took a shower with defendant two or three times; defendant asked M.E. to put his penis in her mouth, and M.E. put her mouth on the side of his penis because she was afraid she would choke; they watched pornographic movies; and they all walked around the house naked.\nThe day after M.E. went home, she told her father what had happened. Her father called the sheriff, and the next morning, he took her to Dr. Louis Allen Dean, a family practitioner in Thomasville, North Carolina. Dr. Dean testified that M.E. told him she had slept with her mother and her mother\u2019s boyfriend naked on several occasions. At least once, her mother\u2019s boyfriend had licked her privates and coerced her into performing oral sex on him.\nDefendant was originally arrested on an unrelated charge, and he and S.E. were both subsequently charged in this case. Defendant\u2019s parents posted S.E.\u2019s $50,000 bond, mortgaging their property to do so. According to S.E., they told her to say she had made everything up and helped her come up with details of an alternate story. They threatened to go off her bond and let her return to jail if she did not comply. S.E. met with an attorney defendant\u2019s parents hired for her and told him she had made up the allegations to get custody of her baby with which she was six months pregnant and M.E. The attorney had her write and sign an affidavit to this effect, but S.E. testified that the affidavit was false and was a product of defendant\u2019s parents\u2019 coercion. S.E. ultimately entered into a plea agreement with the State in which she agreed to plead guilty to one count of indecent liberties with a child, register as a sexual offender for ten years, and testify against defendant.\nAt trial, S.E.\u2019s son from a previous marriage, D.C., testified over defendant\u2019s objection that S.E. and defendant engaged in fellatio in front of him and defendant\u2019s nephew, T.B., once when the two boys were visiting defendant\u2019s home. According to D.C., defendant wore a ring with metal studs around his penis. This conduct did not take place while M.E. was visiting but on a different occasion.\nAt the close of the State\u2019s evidence, defendant moved to dismiss all of the charges against him. The trial court allowed his motion with respect to the three counts of crimes against nature and the count of first-degree sexual offense occurring on or about 14 June 2002. Five charges remained after the motion was allowed, including three charges of indecent liberties occurring on or about 31 May, 8 June, and 14 June 2002, and two charges of first-degree sexual offense occurring on or about 31 May and 8 June 2002.\nDefendant presented evidence which tended to show the following: defendant\u2019s nephew, T.B., testified that while he was visiting S.E. and defendant when D.C. was also visiting, he never saw defendant\u2019s penis, a ring with metal spikes, or any sexual activity. J.B. testified that no one had ever touched her private parts while she was visiting defendant, and that she had never seen anyone touch M.E.\u2019s private parts. She also testified that M.E. told her that M.E., S.E., and the new baby were going to move into defendant\u2019s house because defendant was going to jail.\nJ.B.\u2019s sister, N.B., testified that S.E. told her she had set defendant up in order to move into defendant\u2019s house with M.E. and the baby. She said S.E. told her she regretted making everything up, and several times N.B. heard S.E. on the phone with defendant saying she loved him, wanted to marry him, and would recant the allegations. N.B. also testified that J.B. told her nothing inappropriate had happened between her and defendant. J.B.\u2019s mother testified that J.B., upon numerous inquiries, maintained that nothing inappropriate had ever happened to her while visiting defendant.\nOctavis White, the attorney hired by defendant\u2019s parents to represent S.E., and his law partner, George Hunt, testified that S.E. told them she made up false allegations against defendant to get custody of M.E. and her unborn child. David Harris, another attorney, also testified S.E. told him she made up the allegations. Mr. Harris said S.E. told him she showed pornographic movies and discussed sexual acts with M.E. so that M.E. could describe them to investigators.\nDefendant\u2019s neighbor, Jean Wakefield, testified that S.E. also told her she had M.E. watch pornographic movies in order to accuse defendant of sexual abuse. Mrs. Wakefield said that when she would stop by defendant\u2019s home unannounced, everyone there was dressed normally. Defendant\u2019s mother also testified that S.E. told her the allegations were false. She denied conditioning S.E.\u2019s bond on S.E. recanting the allegations.\nThe jury found defendant guilty of three counts of taking indecent liberties with a child occurring on or about 31 May, 8 June, and 14 June 2002, and two counts of first-degree sexual offense occurring on or about 31 May and 8 June 2002. The trial court consolidated the five convictions into two judgments, found that defendant had a prior felony conviction record of VI, and imposed two consecutive sentences of 384 to 470 months imprisonment. Defendant appeals.\nDefendant\u2019s sole argument on appeal is that the trial court\u2019s instructions to the jury were fatally ambiguous and thereby violated defendant\u2019s right to a unanimous jury under the North Carolina Constitution. Under the North Carolina Constitution, \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; N.C. Gen. Stat. \u00a7 15A-1237(b) (2003). Although defendant did not object to the jury instructions on the grounds of unanimity at trial, \u201c[violations of constitutional rights, such as the right to a unanimous verdict.. . are not waived by the failure to object at trial and may be raised for the first time on appeal.\u201d State v. Wiggins, 161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003).\nDefendant argues that although the jury only considered five charges of sexual abuse, the evidence presented showed many more incidents of abuse during M.E.\u2019s two-week visit at defendant\u2019s home. The jury, defendant contends, could have considered any number of these additional incidents in reaching its verdict. Specifically, the bills of information by which defendant was charged alleged that one count of indecent liberties and one count of first-degree sexual offense occurred on or about 31 May 2002, one count of indecent liberties and one count of first-degree sexual offense occurred on or about 8 June 2002, and one count of indecent liberties occurred on or about 14 June 2002.\nWe begin by addressing the charges of first-degree sexual offense. First-degree sexual offense is defined as \u201ca sexual act: (1) [w]ith 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.\u201d N.C. Gen. Stat. \u00a7 14-27.4(a)(l) (2003). A \u201csexual act\u201d includes \u201ccunnilingus . . . [and] the penetration, however slight, by any object into the genital or anal opening of another person\u2019s body.\u201d N.C. Gen. Stat. \u00a7 14-27.1(4) (2003).\nBecause there is no evidence of any act of vaginal penetration of M.E., the two charges of first-degree sexual offense are based on the incidents in which defendant allegedly performed cunnilingus on M.E. The evidence at trial gave rise to only two possible incidents of cunnilingus. Statements made by S.E. and M.E. which may have described additional incidents of cunnilingus were admitted only for corroborative, rather than substantive, purposes.\nThe first incident described at trial occurred the first or second day of M.E.\u2019s two-week visit. The evidence indicated that M.E. arrived for her two-week visit sometime between 30 May and 1 June 2002. S.E. testified that she convinced M.E. to let defendant perform oral sex on her. At the time, S.E., M.E., defendant, and defendant\u2019s son J.D.B. were all in the bed together naked. This testimony corresponds with the bill of information and the verdict sheet submitted to the jury, which each fix the date of the offense as \u201con or about\u201d 31 May 2002.\nThe second incident of cunnilingus described at trial took place during the middle weekend of M.E.\u2019s visit when defendant\u2019s niece J.B. was also visiting. S.E. testified that Saturday night, she, M.E., and J.B. took off their clothes and lay down on the bed while defendant performed oral sex on all of them. M.E. also described this event, although she could not say when it occurred. The date of the middle Saturday of M.E.\u2019s visit was 8 June 2002. The bill of information alleges that this offense took place \u201con or about\u201d 8 June 2002, and the verdict sheet clearly directs the jury to consider defendant\u2019s guilt or innocence of an offense occurring on that date.\nWe have previously held that when a question of jury unanimity is raised, \u201cwe must examine the verdict, the charge, the jury instructions, and the evidence to determine whether any ambiguity as to unanimity has been removed.\u201d State v. Petty, 132 N.C. App. 453, 461-62, 512 S.E.2d 428, 434, disc. review denied, 350 N.C. 598, 537 S.E.2d 490 (1999). Having examined the verdict, the charge, and the evidence, we now turn to the trial court\u2019s jury instructions on first-degree sexual offense, to which defendant assigns error. The trial court instructed the jury twice on the crime of first-degree sexual offense, once for Case No. 02 CRS 55606, in which the offenses were alleged to have occurred on or about 31 May 2002, and once for Case No. 02 CRS 55580, in which the offenses were alleged to have occurred on or about 8 June 2002. In both instructions, the trial court limited the jury\u2019s consideration of first-degree sexual offense to the act of cunnilingus, stating that \u201ca sexual act here 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.\u201d\nThis Court has held that \u201cthe trial court may protect the defendant\u2019s right to a unanimous verdict by instructing the jury that they must be unanimous as to the particular criminal offense that the defendant committed.\u201d State v. Lawrence, 165 N.C. App. 548, 559, 599 S.E.2d 87, 95, temp. stay allowed, 359 N.C. 73, 603 S.E.2d 885 (2004), disc. review allowed, 359 N.C. 413, 612 S.E.2d 634 (2005) (Lawrence I). Here, the trial court instructed the jury that it must \u201cagree unanimously\u201d on the particular offense of cunnilingus. The trial court\u2019s instructions limited the jury\u2019s consideration of the first-degree sexual offenses both to the approximate dates on which they were alleged to have occurred and to the specific act of cunnilingus. These dates and acts correspond with the evidence presented at trial. Defendant\u2019s contention that \u201cthe trial court\u2019s jury instructions did not clearly specify the alleged offenses the jury was to consider\u201d is not supported by the record.\nWe also reject defendant\u2019s contention that there was evidence presented \u201cof a greater number of separate criminal offenses than the defendant is charged with.\u201d See Lawrence I, 165 N.C. App. at 558, 599 S.E.2d at 95. There is no risk of a lack of unanimity where the defendant was charged with and convicted of the same number of offenses, and the evidence supported that number of offenses. State v. Wiggins, 161 N.C. App. 583, 593, 589 S.E.2d 402, 409 (2003). In the present case, defendant was charged with two discrete first-degree sexual offenses, there was evidence of each offense, and defendant was convicted of each. Therefore, defendant\u2019s argument that he was denied the right to unanimous verdicts with respect to the charges of first-degree sexual offense is overruled.\nWe now turn to the charges of indecent liberties. N.C. Gen. Stat. \u00a7 14-202.1 states:\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully 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; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.\n(b) Taking indecent liberties with children is punishable as a Class F felony.\nN.C. Gen. Stat. \u00a7 14-202.1 (2003). We will again examine \u201cthe verdict, the charge, the jury instructions, and the evidence\u201d to determine whether, on the charges of indecent liberties, \u201cany ambiguity as to unanimity has been removed.\u201d. Petty, 132 N.C. App. at 461-62, 512 S.E.2d at 434.\nDefendant was charged with three counts of indecent liberties. The charge, verdict sheets, and jury instructions limited the jury\u2019s consideration of indecent liberties to \u201con or about\u201d specific dates. Case No. 02 CRS 55606 is limited to \u201con or about\u201d 31 May 2002; Case No. 02 CRS 55580 is limited to \u201con or about\u201d 8 June 2002; and Case No. 02 CRS 55579 is limited to \u201con or about\u201d 14 June 2002.\nFirst we address Case No. 02 CRS 55606, which alleges first-degree sexual offense and indecent liberties took place \u201con or about\u201d 31 May 2002. M.E. testified at trial that about the second day of her visit, defendant engaged in an act of \u201cslick-legging\u201d with her, and later that same night licked her breasts. S.E. testified that the first or second day of M.E.\u2019s visit, defendant performed cunnilingus on M.E. Because indecent liberties does not merge with and is not a lesser included offense of first-degree sexual offense, the evidence presented in this case on cunnilingus may also support a conviction for indecent liberties. State v. Lawrence, 170 N.C. App. 200, 612 S.E.2d 678, temp. stay allowed, 359 N.C. 640, \u2014 S.E.2d \u2014, (June 2, 2005) (No. 293A05) (Lawrence II, a case unrelated to Lawrence I). Therefore, any of these three acts could support a conviction of indecent liberties under N.C. Gen. Stat. \u00a7 14-202.1, and defendant correctly alleges that there was evidence presented \u201cof a greater number of separate criminal offenses than the defendant is charged with.\u201d Lawrence I, 165 N.C. App. at 558, 599 S.E.2d at 95.\nHowever, we have already determined that the jury unanimously found defendant committed the act of cunnilingus on or near 31 May 2002. This unanimous finding is also sufficient to support the conviction of indecent liberties under Case No. 02 CRS 55606. Using the same underlying act to support convictions for both first-degree sexual offense and indecent liberties does not violate defendant\u2019s constitutional protection against double jeopardy. State v. Manley, 95 N.C. App. 213, 217, 381 S.E.2d 900, 902, disc. review denied, 325 N.C. 712, 388 S.E.2d 467 (1989). Defendant\u2019s argument with respect to Case No. 02 CRS 55606 is overruled.\nCase No. 02 CRS 55580 alleges a first-degree sexual offense and a charge of indecent liberties \u201con or about\u201d 8 June 2002, the middle Saturday of M.E.\u2019s visit. The only sexual incident associated with that particular date was when defendant performed cunnilingus on M.E., J.B., and S.E. on the bed. Again, the conviction in this case on first-degree sexual offense by cunnilingus indicates the jury unanimously found this incident occurred. Because the same act of cunnilingus is sufficient to support a conviction of indecent liberties in addition to first-degree sexual offense, Manley, 95 N.C. App. at 217, 381 S.E.2d at 902, and because no other evidence specifically relates to 8 June 2002, we believe the jury was unanimous in its finding of indecent liberties in Case No. 02 CRS 55580.\nFinally, in Case No. 02 CRS 55579, the sole count for the jury to consider was indecent liberties alleged to have occurred on or about 14 June 2002, the last Friday of M.E.\u2019s visit. The only evidence at trial specifically relating to that date was S.E.\u2019s description of a \u201cslick-legging\u201d incident. Because the trial court, through the verdict sheets and its instruction, specifically limited the jury\u2019s consideration of this charge to on or near 14 June 2002, the end of M.E.\u2019s stay, we conclude the jury was also unanimous as to the \u201cslick-legging\u201d incident that occurred on or about the last Friday of M.E\u2019s visit.\nThe present case is distinguishable from other cases in which error has been found. In State v. Holden, 160 N.C. App. 503, 586 S.E.2d 513 (2003), aff\u2019d without precedential value, 359 N.C. 60, 602 S.E.2d 360 (2004), defendant was charged with ten counts of statutory rape. The evidence supported five incidents of rape, and the jury convicted defendant of two counts. The trial court \u201cmade no attempt to distinguish among the ten different counts submitted to the jury.\u201d The indictments were \u201csimply short form indictments . . . alleging] defendant committed first degree statutory rape occurring within a time period between 1 November 1999 and 12 May 2000, without specifying any specific date for any offense.\u201d Id. at 507, 586 S.E.2d at 516. It was impossible to determine which two incidents of rape the jury actually agreed took place. Similarly, in Lawrence I and Lawrence II, the trial court made no attempt \u201cto separate the individual criminal offenses, or guide the jury to identify a given verdict sheet with a corresponding instance of alleged sexual abuse.\u201d Lawrence I at 563, 599 S.E.2d at 98; see also Lawrence II, supra (stating that unanimity is jeopardized if \u201cthe jury receives no guidance from the trial court or indication from the State as to which offenses are to be considered for which verdict sheets\u201d).\nIn the present case, there were numerous acts by defendant in addition to cunnilingus and \u201cslick-legging\u201d which could have supported a conviction on indecent liberties, including licking M.E.\u2019s breasts, showering with M.E., and having M.E. touch his penis with her mouth. Had the trial court submitted this case to the jury for consideration without narrowing the time frame any further than the two-week visit, we would agree that it would be impossible to determine which sexual incidents supported the jury\u2019s finding on any given charge of indecent liberties. However, the trial court carefully associated each charge and jury instruction with a specific case number, date, and verdict sheet. The trial court gave three separate instructions on indecent liberties, distinguishing them by date and case number. Here, as in State v. Wiggins, 161 N.C. App. 583, 593, 589 S.E.2d 402, 409 (2003), defendant was charged with and convicted of the same number of offenses, and this Court found no lack of jury unanimity in that case.\nWith respect to the trial court\u2019s instructions to the jury and the question of jury unanimity, we find no error. However, we remand for correction of a clerical error in the judgments, which incorrectly cite N.C. Gen. Stat. \u00a7 14-27.7A as the statute under which defendant was convicted of first-degree sexual offense. Because M.E. was under 13 years of age, the judgment sheets should reflect N.C. Gen. Stat. \u00a7 14-27:4 as the statute violated by defendant. N.C. Gen. Stat. \u00a7 14-27.4(a)(l) (2003).\nNo Error in the trial.\n02 CRS 55580 Remanded for correction of clerical error.\n02 CRS 55606 Remanded for correction of clerical error.\nJudges WYNN and TIMMONS-GOODSON concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Anne M. Middleton, Assistant Attorney General, for the State.",
      "Staples Hughes, Appellate Defender, by Benjamin Dowling-Sendor, Assistant Appellate Defender, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY CLAY BREWER\nNo. COA04-1160\n(Filed 19 July 2005)\n1. Indecent Liberties; Sexual Offenses\u2014 first-degree sexual offense \u2014 right to a unanimous jury \u2014 allegations of greater number of separate criminal offenses than defendant was charged\nThe trial court did not err in a double first-degree sexual offense and triple taking indecent liberties with a child case by its instructions to the jury and did not violate defendant\u2019s right to a unanimous verdict under the North Carolina Constitution even though defendant contends that the instructions did not clearly specify the alleged offenses the jury was to consider and that evidence was presented of a greater number of separate criminal offenses than those for which defendant was charged, because: (1) in regard to the first-degree sexual offense charges, the evidence at trial gave rise to only two possible incidents of cunnilingus on 31 May 2002 and 8 June 2002 and the trial court\u2019s instructions limited the jury\u2019s consideration of the first-degree sexual offenses both to the approximate dates on which they were alleged to have occurred and to the specific acts of cunnilingus; (2) there is no risk of a lack of unanimity where defendant was charged with and convicted of the same number of offenses, and the evidence supported that number of offenses; (3) in regard to the taking indecent liberties with a child charges, the charge, verdict sheets, and jury instructions limited the jury\u2019s consideration to \u201con or about\u201d specific dates; (4) in regard to 02 CRS 55606 and 02 CRS 55580, using the same underlying act of cunnilingus to support convictions for both first-degree sexual offense and indecent liberties does not violate defendant\u2019s constitutional protection against double jeopardy and the jury was unanimous in its findings; (5) in regard to 02 CRS 55579, the jury was unanimous as to the \u201cslick-legging\u201d incident; and (6) the trial court carefully associated each charge and jury instruction with a specific case number, date, and verdict sheet.\n2. Sentencing\u2014 clerical error \u2014 wrong statute cited\nThe judgments in two first-degree sexual offense cases are remanded for correction of a clerical error in incorrectly citing N.C.G.S. \u00a7 14-27.7A as the statute under which defendant was convicted, because the victim was under thirteen years of age and the judgment sheets should reflect N.C.G.S. \u00a7 14-27.4.\nAppeal by defendant from judgment entered 7 November 2003 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 6 June 2005.\nRoy Cooper, Attorney General, by Anne M. Middleton, Assistant Attorney General, for the State.\nStaples Hughes, Appellate Defender, by Benjamin Dowling-Sendor, Assistant Appellate Defender, for defendant."
  },
  "file_name": "0686-01",
  "first_page_order": 716,
  "last_page_order": 726
}
