Three Kisses; How Many Crimes?

Defendant (age 40) was accused of having sex with a 13-year-old girl, but was acquitted of that; he was, however, convicted of three counts of "indecent liberties with children" for kissing the girl three times, under a statute that provides in relevant part,

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 …[w]illfully 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 ….

He was therefore sentenced "to three consecutive active sentences of imprisonment for [16 to 29] months each." Here's the North Carolina Court of Appeals court's analysis, from State v. Calderon (decided Sept. 5, in an opinion by Judge Jeffery Carpenter joined by Judge Toby Hampson):

Defendant does not dispute that he took indecent liberties with Jocelyn or that the action was "for the purpose of arousing or gratifying sexual desire." Instead, Defendant only contests the number of indecent-liberties counts with which he was charged and convicted. With respect to the three indecent-liberties counts at issue on appeal, there was testimony from Jocelyn, two neighbors of Jocelyn, and Defendant, which tended to show that Defendant kissed: (1) Jocelyn's neck, leaving bruising; and (2) Jocelyn on the mouth twice, while inside the van….

[We] must determine whether the three acts were separate and distinct occurrences, or one continuous occurrence, with respect to the charges for indecent liberties under N.C. Gen. Stat. § 14-202.1….

Generally, "a single act [of taking indecent liberties] can support only one conviction." Nonetheless, this Court has held "multiple sexual acts even in a single encounter, may form the basis for multiple [counts] of indecent liberties." Similarly, we have held rape is generally "not a continuous offense, but each act of intercourse constitutes a distinct and separate offense." "A continuing offense … is a breach of the criminal law not terminated by a single act or fact, but which subsists for a definite period and is intended to cover or apply to successive similar obligations or occurrences." …

This Court has yet to annunciate specific factors the trial court should consider in determining whether multiple, non-sexual acts [which the court determined the kissing to be -EV] constitute separate and distinct acts for purposes of an indecent-liberties prosecution. Rather, we have focused on the temporal proximity of the acts and any intervening events. In Laney, the defendant touched the victim's breasts while she slept in her bed. After the victim pushed the defendant's hand away, the defendant touched the victim under the waistband of her pants…. We held that two acts of touching, where "there was no gap in time between two incidents of touching," constituted a single act that could only support one conviction….

Our Supreme Court considered the question of what constitutes a continuous transaction, as opposed to three separate and distinct acts, in the context of analyzing three counts of discharging a firearm, which we believe is relevant to our analysis in the case sub judice. The Court examined the defendant's firing of three shots from a non-automatic weapon and explained: (1) the defendant "employ[ed] his thought processes each time he fired the weapon," (2) each firing of the gun was "distinct in time," and (3) each bullet hit the vehicle in a "different place." Based on these facts, the Court "conclude[d] that [the] defendant's conviction and sentencing on three counts of discharging a firearm into [an] occupied property did not violate double jeopardy principles." …

Similarly, the Kansas Supreme Court has set out "four guiding factors" in determining whether convictions arise from the same conduct, which we believe consolidate the relevant factors set forth by the Rambert Court with the factors this Court has previously used in indecent liberties cases where no sexual act is at issue:

(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct….

We therefore adopt these four factors annunciated in Sellers with respect to our analytical framework for indecent liberties offenses involving multiple, non-sexual acts….

Here, viewing the evidence in the light most favorable to the State, Defendant kissed Jocelyn on her neck, leaving bruising, when they were outside of the van. Shortly thereafter, Defendant and Jocelyn climbed into the van, where they remained for up to forty-five minutes. In the van, they talked, cuddled, and kissed twice on the mouth—the two kisses occurring within a timeframe of fifteen minutes or less. Based on this evidence, the acts of Defendant kissing Jocelyn on the neck and kissing Jocelyn on the mouth occurred in two separate locations.

After Defendant got into the van, Defendant had an opportunity to consider his conduct—and leave the scene—yet chose to kiss Jocelyn again. Like the defendant in Sellers, Defendant made a conscious decision—after an intervening event, i.e., relocating inside the private area of the van—to take indecent liberties again. Thus, there is substantial evidence to support one count of indecent liberties based on kissing outside the van and one count of indecent liberties based on kissing inside the van.

Nevertheless, because the two kisses that occurred inside the van took place in fifteen minutes or less and were not separated by any intervening act, we conclude these actions by Defendant constituted a single, "continuing offense." Accordingly, there was not substantial evidence of two counts of indecent liberties with a child occurring inside the van. Therefore, we conclude the trial court erred by denying Defendant's motions to dismiss as to one charge….

Judge Michael Stading wrote a separate opinion, partly concurring and partly dissenting:

Being bound by [past] decisions of this Court …, I accept as presently authoritative the majority's position that there is a different analytical path applied to "sexual acts" and "touching" in the context of charges of indecent liberties. This being so, I concur in the majority's conclusion that the adopted test is imperative to distinguish between multiple acts of touching. However, I would note that panels of this Court and future litigants could benefit from the guidance of our Supreme Court concerning whether the judicially-constructed distinction between "sexual acts" and "touching," not found in the statute, is appropriate. I respectfully dissent from the ultimate holding of the majority opinion and would find that there are three separate and distinct acts when applying the adopted test….

In the matter before us, in a light most favorable to the State, defendant kissed Jocelyn on her neck outside of the van once and then inside of the van "twice, and it was not back to back." There was a "break in between" the kisses in the van of "six to seven minutes." In applying the guiding factors from Sellers to the particular facts presented by this case, I would conclude that the separation of six to seven minutes is distinct in time, permitting defendant to employ his thought process and make a conscious decision to engage in the same act a second time….