Issue

Right to unanimous verdict—first-degree forcible sexual offense—disjunctive instruction—evidence of alternative acts to establish an element—no error

Summary

In defendant's prosecution on charges including two counts of first-degree forcible sexual offense, his right to a unanimous jury verdict was not violated where the trial court instructed the jury that it could find defendant guilty of each count upon its determination that the State proved beyond a reasonable doubt that defendant committed a "sexual act"–an element of first-degree forcible sexual offense–against the victim, as established by the commission of any qualifying underlying act which the evidence tended to show: fellatio, anal intercourse, or any penetration of the victim's genital or anal openings. While jury unanimity as to the commission of the element–a "sexual act"–was required, there was no error, let alone plain error, in the disjunctive instruction listing multiple alternative acts, any one of which could establish that element. The Court of Appeals' holding to the contrary was reversed, and the matter was remanded to the lower appellate court for consideration of defendant's other arguments.

Summary from the North Carolina Reports digest (official subject index). Read the opinion →