State v. Hartness, 326 N.C. 561

Summary

The Supreme Court of North Carolina reversed the Court of Appeals and reinstated the defendant's convictions and sentences for taking indecent liberties with a minor. The court held that the pattern jury instruction permitting the jury to find an indecent liberty based on either the defendant touching the child or inducing the child to touch him did not create a fatal unanimity ambiguity. The court also held that prior drug convictions were properly considered aggravating factors at sentencing.

Holdings

1. The instruction was not fatally ambiguous and did not violate the North Carolina Constitution's unanimous-verdict requirement because taking indecent liberties is a single offense that may be proved by alternative acts; the jury need only unanimously find that the defendant committed an immoral, improper, or indecent act for the purpose of arousing or gratifying sexual desire.
2. The trial court properly used Hartness's prior drug convictions as aggravating factors because the governing statute did not distinguish among types of prior crimes, provided the prior crimes were punishable by more than sixty days' confinement.

Questions Presented

1. Whether the disjunctive jury instruction defining an indecent liberty permitted a constitutionally nonunanimous verdict.
2. Whether the trial court properly used prior drug convictions as aggravating factors in sentencing Hartness for the indecent-liberties convictions.

Disposition

reversed_and_remanded