State v. Calderon

892 S.E.2d 434

STATE of North Carolina v. Pedro Isaias CALDERON, Defendant.

No. COA22-822

Court of Appeals of North Carolina.

Filed September 5, 2023

Attorney General Joshua H. Stein, by Assistant Attorney General Sarah Grace Zambon, for the State.

Leslie Rawls, Charlotte, for Defendant-Appellant.

CARPENTER, Judge.

Pedro Isaias Calderon ("Defendant") appeals from judgments entered after a jury convicted him of three counts of indecent liberties with a child. On appeal, Defendant argues the trial court erred by: (1) denying his motions to dismiss for insufficient evidence; (2) instructing the jury on three charges of indecent liberties with a child, which were based on three acts of kissing a minor child ("Jocelyn") ¹ on the same date; and (3) failing to arrest judgment on two of the three charges for indecent liberties. As to all three issues, Defendant contends the evidence of Defendant kissing Jocelyn supports only a single, continuous act rather than three separate and distinct acts. Consequently, Defendant argues the three indecent-liberties-with-a-child convictions violate his right to be free from double jeopardy. To the extent Defendant argues the evidence does not support three convictions of indecent liberties, we agree. We conclude the evidence relating to acts of kissing supports only two counts of indecent liberties. Accordingly, we remand to the trial court with instructions to arrest judgment on one of the indecent-liberties convictions and for resentencing.

I. Factual & Procedural Background

The events giving rise to the charges in this case occurred on 5 July 2019. The evidence presented at trial tended to show the following: Between June and July 2019, Jocelyn was thirteen years old and lived with her mother, grandmother, and three younger siblings in a townhome located in Raleigh, North Carolina. Jocelyn's grandmother took care of Jocelyn and her siblings, while Jocelyn's mother worked to support the family. During June and July, Jocelyn attended church services and youth church events, which were held about once per month at "Mary's" home.

"Marvin" and Defendant both rented a room in Mary's home. Marvin sometimes worked with Defendant, and the two became friends. Marvin was an "old friend" of Jocelyn's grandmother and family and was like "an older brother" to Jocelyn. Marvin would take Jocelyn and her sister to the store to "buy stuff for the house."

In June 2019, Jocelyn first met Defendant after a church service in Mary's home. Defendant approached Jocelyn while she was eating, sat next to her, and asked her if she "liked [Marvin]." Defendant also asked Jocelyn "if [she] was 18 [years old]," to which she responded, "no." Outside Jocelyn's presence, Defendant told Marvin that Jocelyn "had a big ass," and Marvin told Defendant "not to joke around that way because [Jocelyn] was young." Nothing else happened that day between Defendant and Jocelyn.

Jocelyn next saw Defendant about four days later at a church-run youth pool party at Mary's house, following a Sunday church service. Defendant had a conversation with Jocelyn and "asked for [her] Instagram." He also asked for her Facebook profile, and they "be[came] friends" on the social media platform. Defendant and Jocelyn messaged daily through Facebook Messenger for "a week or two." Through these messages, Defendant asked Jocelyn if they could go to the movies together, sent her photos, and told Jocelyn he wanted to touch her.

On the morning of 5 July 2019, Jocelyn saw Defendant in person for a third time when he came to her home. Prior to Defendant's arrival, Jocelyn's grandmother had left their home in a taxi, taking Jocelyn's oldest sibling to a dental appointment, and leaving Jocelyn and her younger siblings asleep in the home. Jocelyn, and her neighbors who witnessed Defendant in the parking lot of Jocelyn's home, testified for the State and recalled the events that transpired on 5 July 2019. Defendant also took the stand and testified on his own behalf. Jocelyn's version of events differed from those of Defendant and the neighbors.

Jocelyn testified that on the morning of 5 July 2019, she went outside to take out the trash and saw an old, dark-blue van parked in front of her home. Jocelyn saw someone in the van and recognized that person as Defendant. According to Jocelyn, she started to walk back to her home, and Defendant got out of the van, "grabb[ing]" her. She told Defendant that her "grandmother was going to come back any second ...." Defendant "started kissing [her] neck," which left bruising, or "hickeys," on her neck.

Defendant pulled Jocelyn in the driver's seat, lifted her shirt, and licked her breasts. Jocelyn tried to push Defendant off her, but he would not let her go. Defendant "got on top" of Jocelyn to close the passenger door. He then pulled down her pants, licked her vagina, and "put his two fingers in." Defendant moved to the passenger seat where he asked Jocelyn if she "wanted to get on top of him" or perform oral sex on him; Jocelyn responded "no" to both questions. Defendant kissed her again on the neck while inside the van. A taxi pulled up beside Defendant's van, carrying Jocelyn's grandmother and sister. Jocelyn got out of the van and went to the home of her next-door neighbors, "Natalie" and "Danielle," who were standing outside. Jocelyn admitted she had never spoken to these neighbors before this date, and she did not tell them what happened in the van.

Natalie witnessed Jocelyn and Defendant together on 5 July 2019 and testified to the following: Natalie was standing on her porch, about ten steps away from a blue van, when she noticed Jocelyn was inside the vehicle with an older man. Jocelyn and the man were "laying in the car, kind of cuddled up," laughing, and "holding a conversation." She witnessed Jocelyn and Defendant kiss twice; "six to seven minutes" passed between the two kisses. Natalie did not observe: (1) any sexual act take place, (2) Defendant touching Jocelyn's chest, (3) Jocelyn sitting on Defendant's lap, or (4) Jocelyn attempt to push or kick Defendant. Defendant and Jocelyn remained in the vehicle for a total of forty-five minutes, until a taxi pulled up carrying members of Jocelyn's family. Jocelyn quickly crawled over Defendant's lap and stepped outside the van from the front passenger door. Jocelyn approached Natalie, Danielle, and their young nephew, and began to speak with them, although Jocelyn had never interacted with them before. Defendant drove away.

Natalie's sister, Danielle, who was seventeen years old at the time, also witnessed Jocelyn with Defendant on 5 July 2019. Danielle testified she had not spoken to Jocelyn before the 5 July incident but was aware of Jocelyn's approximate age because Danielle observed Jocelyn "getting off the middle school bus" with Danielle's younger brother. Danielle witnessed Defendant kiss Jocelyn "at least once or twice." She believed Jocelyn was in the van for ten or fifteen minutes.

Lastly, Defendant recollected the events of 5 July 2019. Defendant testified Jocelyn sent him a message stating, "[c]ome save your girlfriend," before he left for her townhome on the morning of 5 July 2019. Defendant went to the address Jocelyn gave him, and he texted her when he arrived. Jocelyn responded, "I'll be right out." Defendant waited outside of the van for about a minute before Jocelyn came out of the home, "came right straight to [Defendant], threw her arms around [Defendant], and ... starting kissing [him]." Jocelyn asked Defendant to "[k]iss [her] on the neck" while they were in the parking lot outside the van, and he did so. Defendant admitted to kissing Jocelyn on the lips as well as on the neck, and that the bruising on Jocelyn's neck was "probably from [him] kissing her ...."

Defendant could see a man looking out the window of Jocelyn's home, and Jocelyn stated it was her uncle, whom she did not want Defendant to meet at that time. Defendant and Jocelyn entered the van through the driver's side door at Jocelyn's request because she did not want her grandmother to see her outside, and they kissed again once inside. Defendant took a photo of himself with Jocelyn as they sat in the front seat of the van. Defendant and Jocelyn's meeting came to an end when Jocelyn's grandmother arrived home. Defendant asked if could meet Jocelyn's grandmother, to which Joycelyn responded, "[n]ot yet." Jocelyn got out of the van and went towards her neighbors who were standing outside.

Defendant further testified he did not: (1) try to pull off Jocelyn's pants; (2) perform oral sex on Jocelyn; (3) digitally penetrate Jocelyn's vagina; (4) lick or touch Jocelyn's breasts; or (5) try to have sexual contact with Jocelyn. Defendant believed Jocelyn was twenty years old because "she looked like she was 20 and she told [him that]." He also believed Jocelyn had children because he saw Jocelyn taking care of children at a prior church service. Defendant admitted asking Marvin at the church service where Defendant first met Jocelyn, if Jocelyn was married or had children; Marvin explained the children were Jocelyn's siblings, and Marvin told Defendant not to get involved with Jocelyn.

On 5 July 2019, Jocelyn's grandmother, Jocelyn's mother, and Marvin discovered Defendant's relationship with Jocelyn. Marvin and Jocelyn's grandmother arrived at Mary's home to confront Defendant. Defendant "took off running" and drove away; he did not return to Mary's home. Defendant was reported to the police.

On 29 August 2019, a Wake County grand jury indicted Defendant on three counts of indecent liberties with a child, in violation of N.C. Gen. Stat. § 14-202.1(a)(2), and one count of second-degree kidnapping, in violation of N.C. Gen. Stat. § 14-39. On 21 October 2019, a Wake County grand jury indicted Defendant on two additional counts of indecent liberties with a child, in violation of N.C. Gen. Stat. § 14-202.1(a)(2). Both indictments alleged that the offenses charged...