A recent court of appeals case, State v. Calderon, ___ N.C. App. ___ (2023), sets forth a new test for determining whether multiple acts of touching a child during a single encounter can support multiple counts of indecent liberties.
The crime. The crime of taking indecent liberties with children is a Class F felony defined by G.S. 14-202.1. It occurs when a person who is at least 16 years old and who is at least five years older than the child in question does one of the following:
- Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child under the age of 16 for purposes of arousing or gratifying sexual desire; or
- Willfully commits or attempts to commit any lewd or lascivious act upon or with the body of any child under the age of 16.
A number of different kinds of acts, including touching and other sexual acts performed on a child, may be deemed indecent liberties or lewd or lascivious acts. But there is no requirement that the defendant touch the child at all. Rather, the statute bars the performance of any immoral, improper, or indecent act “in the presence of a child” that is done for the purpose of arousing or gratifying sexual desire. State v. Hartness, 326 N.C. 561, 567 (1990); see also State v. Strickland, 77 N.C. App. 454 (1985) (finding sufficient evidence of indecent liberties based on defendant masturbating within view of two seven-year-old boys, whom he invited to join him and to imitate his activity). The defendant’s purpose for committing the act is said to be the gravamen of the offense. Hartness, 326 N.C. at 567.
A single act supports only one conviction. A single act by the defendant may constitute both an indecent liberty and a lewd or lascivious act. See e.g., State v. Jones, 172 N.C. App. 308 (2005) (noting that defendant was charged with violating both prongs of G.S. 14-202.1 based on a single instance of sexual intercourse with his girlfriend’s twelve-year-old daughter). When that occurs, the defendant may not be convicted under both prongs of the indecent liberties statute based upon a single act. Id. at 135 (holding that “[a]lthough the statute sets out alternative acts that might establish an element of the offense, a single act can support only one conviction” for indecent liberties). Instead, only one conviction under G.S. 14-202.1 may stand. Id. at 315-316.
Acts committed on different occasions support multiple convictions. A defendant who commits indecent liberties and/or lewd or lascivious acts on different occasions may be convicted of multiple counts under G.S. 14-202.1. See State v. Lawrence, 360 N.C. 368, 374-75 (2006). This is so even if crimes are charged by short-form indictments that do not differentiate among the offenses. See id. at 375 (upholding defendants’ convictions for three counts of indecent liberties based on indictments that lacked specific details to identify the specific incidents and that were identical, with each using the same range of dates as the date of offense). There must, of course, be sufficient evidence at trial to establish separate incidents supporting each count. Id. at 374 (reciting testimony regarding three specific encounters that constituted indecent liberties).
Multiple acts of touching committed as part of one transaction do not support multiple convictions. As has been previously noted, many different types of actions by a defendant may constitute indecent liberties. In some circumstances, a defendant may commit more than one such act during a single encounter. In State v. Laney, 178 N.C. App. 337 (2006), the court of appeals held that multiple instances of touching a child during a single encounter could support only one conviction of indecent liberties. See id. at 341 (holding that defendant’s acts of touching the victim’s breasts and, after the victim pushed his hand away, putting his hand inside the waistband of her pants were part of one transaction not separated by a gap in time, and thus supported only one conviction; further noting that the “sole act involved was touching—not two distinct sexual acts.”).
Multiple sexual acts or a sexual act in addition to touching during a single encounter can support multiple convictions. Following Laney, the court of appeals in State v. James, 182 N.C. App. 698 (2007), considered whether the defendant could be convicted of separate counts of indecent liberties for touching and sucking the victim’s breasts, performing oral sex on her, and committing sexual intercourse with her, all during a single episode. The defendant argued that because the convictions arose from the same sexual assault, the multiple convictions violated his right to be free from double jeopardy. The court of appeals disagreed, relying on the language in Laney suggesting that multiple sexual acts were subject to a different rule than multiple acts of touching that occurred in a single encounter. The court reasoned that the three acts separated alleged in the indictment “were distinct acts each constituting the crime of indecent liberties,” and that the “distinctive character of the acts is not altered because all three occurred within a short time span.” Id. at 705. Thus, the court held that the defendant was properly found guilty of three counts of indecent liberties.
The court subsequently extended the James framework for analysis to convictions of sexual offense based upon multiple sexual acts in a single encounter, determining that such acts supported multiple convictions. See State v. Williams, 201 N.C. App. 161, 185 (2009) (holding that double jeopardy did not bar two convictions of first degree sexual offense based on the defendant inserting his hands into the victim’s vagina and rectum at the same time; reasoning that noncontemporaneous penetration is not a requirement to charge a defendant with two separate counts of sexual offense or indecent liberties. See also State v. Gobal, 186 N.C. App. 308, 322 n. 7 (2007), aff’d per curiam, 362 N.C. 342 (2008) (“If defendant had properly preserved this issue … we would affirm…. Even when multiple sex acts occur in a ‘single transaction’ or a short span of time, each act is a distinct and separate offense.”).
That brings us to State v. Calderon. The defendant in Calderon was convicted of three counts of indecent liberties with a child, which were based on three acts of kissing the victim during a single encounter. The defendant drove his van to the victim’s home, where he saw her outside. He kissed the victim on the neck with sufficient force to leave bruising while the two were outside of the van. They then climbed into the van where the defendant kissed the victim twice on the mouth. Six to seven minutes passed between those kisses. On appeal, the defendant argued that because he kissed the victim three times in a very brief period, the kissing was a single, continuous act that supported only one conviction for indecent liberties. A majority of the court of appeals concluded that the evidence supported only two convictions for indecent liberties – not three – and remanded the case for resentencing.
A new test. The court of appeals deemed it necessary in light of James and Williams to determine as a threshold issue whether the kissing was a touching or a sexual act, deciding it was the former. Since the act was non-sexual, the Court then proceeded to consider whether the acts were separate and distinct so as to support multiple convictions, noting that the appellate courts had yet to annunciate specific factors governing this determination.
Laney focused on the temporal proximity of the acts. The North Carolina Supreme Court in State v. Rambert, 341 N.C. 173 (1995), in contrast, determined that a defendant could be convicted of three counts of discharging a firearm into occupied property for the firing of three shots from a pistol based on the defendant’s use of his thought process each time he fired, the firings being distinct in time, and each bullet hitting the vehicle in a different place. The Calderon Court observed that the Supreme Court of Kansas had adopted four guiding factors for determining whether convictions arise from the same conduct and those factors incorporated the Laney and Rambert considerations:
- Did the acts occur at the same time?
- Did the acts occur at the same place?
- Is there a causal relationship between the acts and was there an intervening event?
- Is there a fresh impulse motivating the conduct?
Adopting those factors as the analytical framework for indecent liberties offenses involving multiple, non-sexual acts, the Calderon Court determined there was substantial evidence to support one conviction of indecent liberties for the kissing outside of the van and one count of indecent liberties for the kissing inside the van. The Court reasoned that the two events were in separate locations, and the defendant made a conscious decision after relocating to the inside of the van to again take indecent liberties. Because the two kisses inside the van took place within 15 minutes and were not separated by an intervening act, the court determined that the trial court erred by denying the defendant’s motion to dismiss the third charge.
The dissent. Judge Stading concurred in part and dissented in part. He concurred in the four-part test adopted by the majority. Nevertheless, he opined that the court of appeals and litigants would benefit from guidance from the state supreme court “concerning whether the judicially constructed distinction between ‘sexual acts’ and ‘touching,’ not found in the statute, is appropriate.” Slip op. at 1 (Stading, J., concurring in part, dissenting in part). In Judge Stading’s view, absent precedent requiring the court to distinguish between touching and sexual acts, no such distinction would be necessary since acts in a single encounter may support a separate conviction if the indictment spells out a separate and distinct fact to be proven by the state or the acts are distinct under the four-part test.
Judge Stading dissented from the majority’s determination that the evidence supported only two counts of indecent liberties as he would have held that there were three separate and distinct acts under the four-part test.
What is next? The State has an appeal of right pursuant to G.S. 7A-30(2), should it choose to exercise that right. The Supreme Court could, in exercising that review, dispense with the touching versus sexual act distinction adopted by the court of appeals. Given, however, that the rule is bright-line and prosecution-favorable, the State may elect not to tee up the issue.
I am not sure why a different analysis should apply to touching versus sexual acts. That distinction was first suggested in dicta in Laney and the very next year was adopted as the holding in James. As a practical matter, I suspect that sexual acts would very often qualify as distinct acts under the Calderon test, the Rambert test, or the distinct interruption test for ongoing assaults under State v. Dew, 379 N.C. 64 (2011), as they frequently involve a different thought process or distinct interruption. Yet, as the law currently stands, none of those tests need be applied to indecent liberty charges based on multiple sexual acts.