Heard in the Court of Appeals 9 October 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Appeal by defendant from judgments entered 18 October
2013 by Judge C. Thomas Edwards in Burke County Superior Court.
Burke County. Nos. 10 CRS 52270-71, 12 CRS 287, 12 CRS 289.
No error in part; vacated and remanded in part.
Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
GEER, Judge. Judges STROUD and BELL concur.
Defendant Mat Dallas Pierce appeals his Burke County convictions of indecent liberties with a child, rape of a child, and sexual offense with a child by an adult. Defendant also appeals his Caldwell County convictions of first degree sexual offense and two counts of indecent liberties with a child. The victim of the Burke County indecent liberties offense is defendant's daughter " Maggie." The victim of the remaining offenses is defendant's daughter " Melissa." 
On appeal, defendant primarily argues that the trial court erred in denying his motion to dismiss two of the charges involving Melissa: one count of indecent liberties occurring in Caldwell County and one count of sexual offense with a child occurring in Burke County. With respect to the Caldwell County charges, the State presented evidence that defendant had sex with his girlfriend in the presence of Melissa, performed oral sex on Melissa, and then forced his girlfriend to perform oral sex on Melissa while he watched. Defendant argues that this evidence only supports one count of indecent liberties with a child. We disagree. Pursuant to State v. James, 182 N.C.App. 698, 643 S.E.2d 34 (2007), multiple sexual acts during a single encounter may form the basis for multiple counts of indecent liberties. Accordingly, we hold that the evidence presented by the State is sufficient to support defendant's two convictions for indecent liberties.
With respect to the Burke County sexual offense charge, we agree with defendant that the State failed to present substantial evidence that a sexual act as defined by N.C. Gen. Stat. § 14-27.4A (2013) occurred between defendant and Melissa in Burke County. The only evidence presented by the State regarding a sexual act that occurred in Burke County -- testimony by Melissa that defendant placed his finger inside her vagina while alone in their kitchen in Burke County -- was not admitted as substantive evidence. The State presented specific evidence that defendant performed oral sex on Melissa -- a sexual act under the statute -- but that act occurred in Caldwell, not Burke, County. Although Melissa also testified generally that she was " sexually assaulted" more than 10 times, presumably in Burke County, nothing in her testimony clarified whether the phrase " sexual assault," referred to sexual acts within the meaning of N.C. Gen. Stat. § 14-27.4A, vaginal intercourse, or acts amounting only to indecent liberties with a child. This evidence is insufficient to support the Burke County sexual offense conviction.
Accordingly, we hold that the trial court erred in denying defendant's motion to dismiss the Burke County sexual offense with a child charge and remand for resentencing on the Burke County offenses. Because we find defendant's remaining arguments unpersuasive, we hold that defendant received a trial free of prejudicial error on the remaining charges.
The State's evidence tended to show the following facts. Melissa and Maggie are twin daughters of defendant. In 2009, when the girls were 10 years old, they lived with defendant, their mother, and their brother in a yellow house in Burke County, North Carolina. In the fall of 2009, after school had started, but before Christmas, defendant took Melissa into the kitchen of the yellow house, pulled down her pants, and " put his penis on [her] vagina [and] started moving back and forth." On a different occasion, defendant had vaginal intercourse with Melissa while they were in the basement of the yellow house. Defendant had vaginal intercourse with Melissa more than five times.
Sometime in January or February of 2010, defendant, Melissa, and defendant's girlfriend, " Laura," spent the night at the house of defendant's nephew, Mikey, in Caldwell County. Melissa slept on a bed while defendant and Laura slept on a couch in the same room. During the night, Melissa was awakened by defendant and Laura having sex. Defendant asked Melissa to join them and told her to go over to the couch. Defendant took off Melissa's pants and started licking her vagina. He then asked Laura to perform oral sex on Melissa, and she complied.
When asked if defendant ever put anything other than his mouth or penis on her vagina Melissa testified " yes."  On redirect examination, Melissa responded affirmatively to the State's questions whether defendant " sexually assaulted" her more times than she had described to the jury, whether " it happen[ed] more than ten times" and whether " [o]nce it started, . . . it continue[d]." Defendant told Melissa not to tell anyone about the sexual conduct because if she did, he would go back to prison.
Maggie testified that when she was home sick from school and no one else was in the house, defendant touched her vagina with his hand underneath her clothes. Defendant touched her vagina, both over and under her clothes, more than five times. On one occasion, defendant was helping Maggie with her homework in the kitchen and he touched her inside her pants.
With respect to Maggie, defendant was indicted in Burke County for indecent liberties with a child. With respect to Melissa, defendant was indicted in Burke County for rape of a child by an adult and sexual offense with a child by an adult, and in Caldwell County, for rape of a child by an adult, sexual offense with a child, and two counts of taking indecent liberties with a child. The Caldwell County cases were transferred to Burke County for trial.
The cases came on for trial on 15 October 2013. At the conclusion of the evidence, the trial court dismissed the Caldwell County rape charge. The jury found defendant guilty of the remaining charges. The trial court consolidated the Burke County charges for judgment and sentenced defendant to a presumptive-range term of 350 to 429 months imprisonment. The trial court consolidated the Caldwell County charges for judgment and sentenced defendant to a presumptive-range term of 386 ...