State v. Hartness

In State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), the Supreme Court clarified its decision in Diaz. Defendant Hartness was convicted of three counts of taking indecent liberties with a minor. The trial court instructed the jury in that case that an indecent liberty was "an immoral, improper, or indecent touching or act by the defendant upon the child, or an inducement by the defendant of an immoral or indecent touching by the child." Id. at 563, 391 S.E.2d at 178. Defendant assigned error to the instruction, contending that it led to his conviction by a nonunanimous verdict. Id. The Supreme Court distinguished Diaz and stated that the risk of a nonunanimous verdict does not arise in cases such as the one at bar because the statute proscribing indecent liberties does not list, as elements of the offense, discrete criminal activities in the disjunctive in the same manner as does the trafficking statute [in Diaz]. . . . Even if we assume that some jurors found that one type of sexual conduct occurred and others found that another transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of "any immoral, improper, or indecent liberties." Such a finding would be sufficient to establish the first element of the crime charged. Hartness, 326 N.C. at 564-65, 391 S.E.2d at 179.