THIGPEN, Judge.
Allan Comeaux ("Defendant") appeals from judgments convicting him of four counts of taking indecent liberties with a child. On appeal, Defendant contends that his Sixth Amendment right to a public trial was violated because the trial court closed the courtroom during the victim's testimony without making findings of fact as required under Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Defendant also contends that the trial court erred by denying his motions to dismiss, or by failing to arrest judgment, because the indictments, jury instructions, and verdict forms were "duplicitous" and "generic" in violation of his constitutional and statutory rights to a unanimous jury. For the following reasons, we find no error.
The State's evidence at trial tended to show that K.D., the victim in this case, was born on 24 January 1992. When she was approximately 9 or 10 years old, K.D. went to live with a distant relative, Connie Comeaux ("Connie"), and Connie's husband, Defendant,
When K.D. was eleven, she moved with Connie and Defendant to New Jersey, where the sexual abuse continued. They then moved to Montreat when K.D. was thirteen, where the abuse stopped during the six months that they lived there. In early 2006, when K.D. was still thirteen, she moved with Connie and Defendant to Asheville, North Carolina. K.D. testified, "[t]hat's when it got really bad[,]" with Defendant frequently abusing her at night. The sexual abuse in North Carolina included Defendant putting his hands down K.D.'s pants; touching and sucking her breasts; and touching the outside of her vagina, K.D. testified that the sexual abuse lasted approximately seven years and that it did not stop until she left the Comeaux's home on 1 July 2009.
In August of 2009, K.D. contacted the Buncombe County Department of Social Services ("DSS") to report the sexual abuse. Following K.D.'s report, DSS contacted the Buncombe County Sheriff's Department. K.D. was subsequently interviewed by a police officer and a social worker from DSS. K.D.'s explanation of the history of sexual abuse to the police officer and social worker was consistent with her testimony at trial.
Defendant was charged with five counts of taking indecent liberties with a child. At trial, the jury convicted Defendant of four counts of taking indecent liberties with a child. Defendant was sentenced to four consecutive sentences of 16 to 20 months imprisonment and ordered to register as a sex offender for thirty years. Defendant appeals from these judgments.
On 8 May 2012, this Court entered an order remanding the case "for the limited purpose of the trial court indicating whether it made findings consistent with State v. Jenkins, 115 N.C. App. 520, 525, 445 S.E.2d 622, 625, disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994)[,] in clearing the courtroom." This Court further decreed in its 8 May 2012 order that "[t]he trial court shall enter an order stating whether it made such findings, and if so, it shall reduce those findings of fact and conclusions of law to writing[.]" Defendant's appeal was "held in abeyance pending receipt of the trial court's order."
On 30 May 2012, Judge Philip Ginn entered an order stating that the "facts needed for granting the State's Motion and ordering the limited closure of the courtroom during the testimony of the Victim" were "establish[ed][.]" However, the trial court failed to memorialize the facts in writing in its 20 May 2012 order, instead stating that, "in the opinion of [the trial court]," it was not "required to engage in any Constitutional analysis or make any Constitutionally-based findings as contemplated by the Jenkins Court[.]"
On 20 August 2012, this Court entered a second order again remanding the case to the trial court "to make findings of fact and conclusions of law in accordance with State v. Jenkins, 115 N.C. App. 520, 525, 445 S.E.2d 622, 625, disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994), utilizing the four-part test enumerated in Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31, 39, (1984)." This Court again instructed that "[t]he trial court shall then reduce those findings of fact and conclusions of law to writing[,]" and Defendant's "appeal shall again be held in abeyance pending receipt of the trial court's order."
On 19 September 2012, Judge Philip Ginn entered an order containing written findings of fact as ordered by this Court.
On appeal, Defendant contends that his constitutional right to a public trial was violated when the trial court closed the courtroom during K.D.'s testimony without making findings of fact as required by Waller v.
This Court reviews alleged constitutional violations de novo. State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007). Pursuant to the Sixth Amendment of the United States Constitution, a criminal defendant is entitled to a "public trial." U.S. Const. amend. VI.
Waller, 467 U.S. at 46, 104 S.Ct. 2210 (citations and quotation marks omitted). "[T]he guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution." In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948). "[T]he public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring). "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." In re Oliver, 333 U.S. at 270, 68 S.Ct. 499.
Bell v. Jarvis, 236 F.3d 149, 165 (4th Cir. 2000) (citations and quotation marks omitted) (alterations removed). "The violation of the constitutional right to a public trial is a structural error, not subject to harmless error analysis." Id.
"Although there is a strong presumption in favor of openness, the right to an open trial is not absolute. The trial judge may impose reasonable limitations on access to a trial in the interest of the fair administration of justice." Bell v. Evatt, 72 F.3d 421, 433 (4th Cir.1995). "[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, 467 U.S. at 45, 104 S.Ct. 2210.
Accordingly, within the boundaries of these constitutional principles, N.C. Gen.Stat. § 15-166 (2011) permits the exclusion of certain persons from the courtroom in cases involving rape and other sexually-based offenses:
Id. Before a trial court may allow a courtroom closure pursuant to N.C. Gen.Stat. § 15-166, however, the court must comply with the rule set forth in Waller, see, e.g., State v. Smith, 180 N.C. App. 86, 98, 636 S.E.2d 267, 275 (2006); State v. Starner, 152 N.C. App. 150, 154, 566 S.E.2d 814, 816-17 (2002); State v. Jenkins, 115 N.C. App. 520, 525, 445 S.E.2d 622, 625 (1994), which requires the following:
Jenkins, 115 N.C.App. at 525, 445 S.E.2d at 625 (citing Waller, 467 U.S. at 48, 104 S.Ct. 2210). "[W]hile the trial court need not make exhaustive findings of fact, it must make findings sufficient for this Court to review the propriety of the trial court's decision to close the proceedings." Rollins, ___ N.C.App. at ___, 729 S.E.2d at 79.
Here, the trial court memorialized the following pertinent findings of fact in its 19 September 2012 order:
We believe these findings of fact show that the State advanced an overriding interest that was likely to be prejudiced; that the closure of the courtroom was no broader than necessary to protect the overriding interest; that the trial court considered reasonable alternatives to closing the courtroom; and that the trial court made findings adequate to support the closure. We note Defendant's contention that findings of fact 10, 16, 17, and 19 are unsupported by the evidence of record, and, as such, they cannot support the trial court's conclusion that, in seeking closure, the State "advanced an overriding interest that [was] likely to be prejudiced" absent closure. However, "findings of fact" 17 and 19 set forth legal conclusions, and the portion of finding of fact 16 challenged by Defendant, namely, the finding
Defendant next contends that the trial court erred by denying his motions to dismiss, or by failing to arrest judgment, because the indictments, jury instructions, and verdict forms were "duplicitous" and "generic" in violation of his constitutional and statutory rights to a unanimous jury. We disagree.
We first address Defendant's challenge to the sufficiency of the five indecent liberties indictments upon which he was charged. Defendant argues that the indictments were insufficient because they included "non-specific allegations" and the only distinction among them was the time frame within which the alleged acts occurred. This argument is meritless.
The sufficiency of an indictment is reviewed de novo on appeal. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008). "In general, an indictment couched in the language of the statute is sufficient to charge the statutory offense." State v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d 42, 46 (1998). It is "generally true tha[t] an indictment need only allege the ultimate facts constituting the elements of the criminal offense and that evidentiary matters need not be alleged." Id. Moreover, our courts have consistently held that the requirement of temporal specificity described under N.C. Gen.Stat. § 15A-924(a)(4) "diminishes in cases involving sexual assaults on children." Id. at 696, 507 S.E.2d at 45.
Defendant was charged pursuant to N.C. Gen.Stat. § 14-202.1 (2011), which provides as follows:
Id. Applying the foregoing principles to the five indictments brought against Defendant, we conclude that the indictments sufficiently informed Defendant of the conduct for which he was charged. Each of the indictments was couched in the language of the statute, and each indictment alleged that Defendant committed the subject offense within a specific, non-overlapping six month period between July 2005 and December 2007. For example, one indictment alleged the date of the offense as "[o]n, about or during 7/1/05 through 12/31/05[,]" while another stated, "[o]n, about or during 1/1/06 through 6/30/06[.]" Accordingly, we find no error in the indictments. See Blackmon, 130 N.C.App. at 697, 507 S.E.2d at 45 (holding that the eight indictments charging the defendant with multiple counts of first-degree statutory sexual offense and taking indecent liberties with a child were sufficiently specific where the only reference made to time or dates was that the "defendant committed the
Defendant further contends that the trial court's "generic" jury instructions and verdict sheets deprived him of his constitutional right to a unanimous jury verdict. More specifically, Defendant contends that because the State's evidence "described multiple occurrences of the same form of touching[,]" because the jury instructions provided the "language of the indecent liberties statute[,]" and because the "only distinguishing feature" of the verdict forms "was the dates[,]" the instructions and verdict forms lacked "unanimity as to which criminal offense, and particularly the actus reus of any crime ... [D]efendant committed." We are not persuaded.
"Article I, Section 24 of the North Carolina Constitution states that `[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.'" State v. Wilson, 363 N.C. 478, 482-83, 681 S.E.2d 325, 329 (2009) (quoting N.C. Const. art. I, § 24) (alteration in original).
The transcript reveals that the trial court delivered the following instructions to the jury at the close of all the evidence:
(Emphasis added).
The trial court's instructions explicitly distinguished among the five indecent liberties charges and directed the jurors to find Defendant guilty on each count only if they determined that Defendant had committed the requisite acts within the designated time period. The designated time periods were set forth in the indictments, and, as the court informed the jurors in its instructions, each verdict sheet was paired with a particular indictment as indicated in the top right-hand corner of the verdict sheet. We must presume that the jurors heeded these instructions, see State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993) (presuming
We note Defendant's assertion that "[a] denial of the right to a unanimous verdict of guilt occurs" where "there is evidence of more than one criminal offense which may be the basis for a particular verdict and, from the indictments, verdicts and jury instructions, there is no way to be certain that all twelve jurors found the state had proven beyond a reasonable doubt the elements of the same criminal offense for each guilty verdict." Defendant cites no authority in support of this proposition, and, indeed, this proposition is inconsistent with precedent set by our Supreme Court in State v. Lawrence, 360 N.C. 368, 375, 627 S.E.2d 609, 613 (2006) (holding that the "defendant was unanimously convicted of three counts of indecent liberties with a minor, notwithstanding that the short-form indictments charging each crime [were] identical[,]" and, further, that "a defendant may be unanimously convicted of indecent liberties even if: (1) the jurors considered a higher number of incidents of immoral or indecent behavior than the number of counts charged, and (2) the indictments lacked specific details to identify the specific incidents"). Defendant's contention is meritless and is accordingly overruled.
For the foregoing reasons, we find no error.
NO ERROR.
Judges CALABRIA and ERVIN concur.