Ensuring Jury Unanimity in Disjunctive Sexual‐Offense Instructions

Introduction

In State v. Bowman, 386 N.C. 1 (2025), the Supreme Court of North Carolina addressed a fundamental question: when a statute defines a criminal element by listing alternative acts in the disjunctive, does a jury instruction that mirrors those alternatives violate a defendant’s constitutional right to a unanimous verdict? James Fredrick Bowman was charged with two counts of first-degree forcible sexual offense under N.C.G.S. § 14-27.26(a), each count alleging “a sexual act by force and against the victim’s will.” The trial judge defined “sexual act” to include (1) fellatio, (2) anal intercourse, or (3) penetration by an object, and then gave a single, disjunctive instruction. Bowman was convicted; on appeal a divided Court of Appeals panel ordered a new trial, finding plain error in the unanimity instruction. The State appealed, and Justice Riggs’s majority opinion for the Supreme Court reversed, clarifying the scope of unanimity requirements when statutes enumerate alternative means to satisfy an element.

Summary of the Judgment

The Supreme Court held that a jury instruction which sets forth alternative ways of satisfying a single statutory element does not infringe the defendant’s right to a unanimous verdict so long as those alternatives are merely means of proving that one element occurred. Applying the disjunctive-means line of precedents (Hartness, Lyons, Lawrence, Foust), the Court found that the trial judge’s instructions, read as a whole and considered alongside the evidence, left no ambiguity about unanimity. Accordingly, the Court reversed the Court of Appeals’ order for a new trial and remanded for consideration of Bowman’s remaining appellate claims.

Analysis

Precedents Cited

• State v. Hartness (326 N.C. 561, 1990): Distinguished statutes listing discrete offenses (“sale,” “manufacture,” etc.) from those listing alternative means to prove one element (“indecent liberties”).
• State v. Diaz (317 N.C. 545, 1986): Held that disjunctive instructions on separate offenses (possession vs. transportation of drugs) are fatally ambiguous unless facts or verdict forms clarify unanimity.
• State v. Lyons (330 N.C. 298, 1991): Explained that Diaz applies only when the disjunctive alternatives are separate crimes, whereas Hartness governs when they are means of proving one crime.
• State v. Lawrence (360 N.C. 368, 2006): Reaffirmed that disjunctive instructions on alternative means of proving an element satisfy the unanimity requirement.
• State v. Foust (311 N.C. 351, 1984): Upheld a disjunctive jury instruction on “oral sex or anal intercourse” as meeting unanimity, while advocating “better practice” of separate verdict questions when multiple acts are alleged.
• State v. Bates (179 N.C. App. 628, 2006): Set forth a four-factor test (evidence, indictments, jury charge, verdict sheet) to evaluate jury unanimity; the Court of Appeals misapplied Bates by failing to account for the totality of instructions and evidence.
• State v. Jordan (305 N.C. 274, 1982) & State v. Williams (286 N.C. 422, 1975): Constitutional and statutory bedrock requiring unanimous jury verdicts.
• Rules on plain error review (State v. Odom, 307 N.C. 655, 1983; Reber, Collington, 2020–24 cases): Confirm that unobjected-to jury instructions are reviewed only for plain error.

Legal Reasoning

Justice Riggs’s majority opinion followed this line of authority to distinguish two scenarios:

1. Separate Offenses Disjunctively Charged – When a statute lists multiple separate offenses (e.g., “sale, manufacture, delivery” of drugs), a disjunctive instruction risks a non-unanimous verdict unless the record unambiguously shows which offense was unanimously found.
2. Alternative Means to Prove One Element – When a statute defines one element by alternative acts (e.g., “fellatio, anal intercourse, or object penetration”), a single disjunctive instruction does not implicate unanimity because all jurors must still find that “one or more” of those means occurred beyond a reasonable doubt to convict.

The Court concluded that the sexual-offense statute, N.C.G.S. § 14-27.26, falls into the second category. Read together, the trial court’s instructions (defining “sexual act”; instructing that all twelve jurors must agree; sending the elements in sequence; offering acquittal if any doubt on any “thing”) and the overwhelming evidence (violent anal penetration followed by forced fellatio) removed any risk of jury confusion. Under plain-error review, Bowman neither demonstrated a fundamental error nor a probable impact on the verdict.

Impact

The decision clarifies and consolidates the law in North Carolina regarding jury unanimity and disjunctive instructions:

• Trial courts may continue to use disjunctive language when statutes define an element by alternative means.
• Courts should still follow the “better practice” (per Foust) by submitting separate verdict questions or forms when multiple distinct acts are charged, to guard against ambiguity and appellate error.
• Appellate panels must apply the correct disjunctive-means framework (Hartness, Lawrence) rather than Bates wholesale when statutes do not enumerate separate offenses disjunctively.
• The ruling reinforces the narrow scope of plain-error review for jury-instruction challenges not preserved below.
• Defense counsel should continue to object or request special verdict forms when multiple acts are alleged, to preserve unanimity arguments on appeal.

Complex Concepts Simplified

Disjunctive Instruction

A jury instruction that lists two or more alternative ways to prove an element, joined by “or.”

Unanimous Verdict

A criminal defendant’s jury verdict must be agreed to by all twelve jurors for each element charged.

Alternative Means vs. Separate Offenses

Alternative Means: Different ways to commit the same crime (e.g., forcing anal or oral sex— both constitute one count of first-degree sexual offense).
Separate Offenses: Distinct crimes with separate penalties (e.g., “sale” vs. “possession” of drugs).

Plain Error Review

Appellate review of an unpreserved error requires showing: a fundamental legal mistake, a probable impact on the outcome, and an “exceptional case” warranting relief despite no trial objection.

Conclusion

State v. Bowman reaffirms that North Carolina’s unanimity requirement remains robust while preserving common-sense jury instruction practices. When a statute defines an element by alternative means, a single disjunctive instruction—properly framed and supported by clear evidence—satisfies the unanimity guarantee. Nevertheless, courts are encouraged to employ separate verdict forms or issues when multiple acts exist, minimizing any risk of confusion and protecting the defendant’s constitutional rights.