concurring in part and dissenting in part.
I concur in the portion of the majority opinion vacating the judgment entered in the convictions for First Degree Sexual Offense as I agree the variance between the indictments and the evidence is fatal.
However, I strongly disagree and therefore dissent from the majority opinion remanding for a new trial the five counts of first degree rape and three counts of taking indecent liberties with a minor. The majority relies almost solely on State v. Gary Lee Lawrence, Jr., 165 N.C. App. 548, 599 S.E.2d 87 (2004), stay granted, 359 N.C. 73, 603 S.E.2d 885 (2004) and disc. review granted, 359 N.C. 413, (Apr. 6, 2005) (No. 457PA04) and State v. Holden, 160 N.C. App. 503, 506-07, 586 S.E.2d 513, 516 (2003), aff’d without precedential value, 359 N.C. 60, 602 S.E.2d 360 (2004), a major case upon which Lawrence relies. Considering the current posture of those two cases, and for the reasons which follow, I respectfully dissent.
Taking Indecent Liberties with a Minor
The North Carolina Constitution and North Carolina statutory law require a unanimous jury verdict in a criminal jury trial. See N.C. *218Const. art.l, § 24; N.C.G.S. § 15A-1237(b) (1997). Two lines of cases, Diaz and Hartness, have developed in our jurisprudence regarding whether certain disjunctive instructions result in an ambiguous or uncertain verdict such that it might violate a defendant’s right to a unanimous verdict. State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986); State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990).
There is a critical difference between the line of cases represented by Diaz and Hartness.
The [Diaz] line establishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. The [Hartness] line establishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which will satisfy an element of the offense, the requirement of unanimity is satisfied.
State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991) (emphasis supplied).
In Hartness the Supreme Court made clear that the reasoning of Diaz, a drug trafficking case, did not apply to cases involving indecent liberties. Hartness, 326 N.C. at 564, 391 S.E.2d at 179. Sex offense and indecent liberties cases involve situations in which a single wrong can be established using various alternative acts such that a danger of lack of unanimity does not arise. Indeed, in the instant case the majority opinion acknowledges the long-standing line of cases in which jurors were “conceivably allow[ed] [ ] to convict a person of a single first degree sexual offense or a single indecent liberty with a minor without being unanimous as to which prohibited act satisfied the sexual act element... or the immoral, improper or indecent act element.”
Furthermore, our Supreme Court has expressly determined that disjunctive jury instructions do not risk nonunanimous verdicts in first-degree sexual offense [and taking indecent liberties] cases. State v. McCarty, 326 N.C. 782, 784, 392 S.E.2d 359, 360 (1990) (upholding jury instructions that defendant could be found guilty of first degree sexual offense “if [the jury] found [the] defendant [had] engaged in either fellatio or vaginal penetration”)
*219State v. Petty, 132 N.C. App. 453, 462, 512 S.E.2d 428, 434 (1999). See also State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603 (2002); State v. Yearwood, 147 N.C. App. 662, 556 S.E.2d 672 (2001).
Many of the above-referenced cases discuss the “gravamen” or “gist” of the statutes involved. The gravamen of the indecent liberties statute (N.C.G.S. § 14-202.1) is to criminalize the performance of a sexual act with a child.
The evil the legislature sought to prevent in this context was the defendant’s performance of any immoral, improper, or indecent act in the presence of a child ‘for the purpose of arousing or gratifying sexual desire.’ Defendant’s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.
Hartness, 326 N.C. at 567, 391 S.E.2d at 180. In other words, the particular act or conduct is not the gravamen of the offense, but only one of several alternative ways to establish a single wrong. The indecent liberties statute proscribes “any immoral, improper or indecent liberties.” Therefore, “even if some jurors found that the defendant engaged in one kind of sexual misconduct, while others found that he engaged in another, ‘the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of any immoral, improper, or indecent liberties.’ ” State v. Lyons at 305-06, 412 S.E.2d at 313.
In the instant case defendant was charged and convicted by a jury of inter alia, three counts of Taking Indecent Liberties with a Minor. At trial the victim testified to three specific acts which constituted Taking Indecent Liberties with a Minor: (1) “the game” where defendant exposed his private parts and victim lifted her shirt; (2) where defendant touched his private part to the victim’s private part; and (3) where defendant masturbated in front of victim and her sister. The three acts testified to by the victim were the three acts the jury relied upon in reaching their guilty verdicts as to Taking Indecent Liberties. While it is not readily apparent from the record, the majority opinion mentions that some jurors may have relied upon a fourth act— defendant’s hand under the victim’s shirt — as a basis for their verdict. Regardless, such reliance does not present a unanimity problem. As our case law clearly holds, where the jury found sexual conduct which constitutes an immoral, improper or indecent act, such is sufficient for a unanimous verdict of the whole jury. Lyons at 305-06, 412 S.E.2d at 313. Therefore, with respect to the convictions of Taking *220Indecent Liberties, as in Hartness, I would find “[t]he risk of a nonunanimous verdict does not arise in cases such as the one at bar because the statute proscribing indecent liberties does not list, as elements of the offense, discrete criminal activities in the disjunc-tive_” Hartness, 326 N.C. at 567, 391 S.E.2d at 179.
The majority also states that because there were multiple incidences of rape, the jury could have used such incidences to support a conviction of indecent liberties, and then further states that because there was “no instruction from the trial court or election by the State [they, (the majority) were] not convinced that the risk of a nonunanimous verdict was avoided in this case.” This type of analysis the majority puts forth sua sponte on appeal is troubling because it extends the concept of unanimity far beyond what the law requires and beyond what is reasonable for child sexual abuse cases in North Carolina. No election by the state nor further instruction by the trial court is required under our law. Therefore, failure to further instruct the jury or to have the state elect which incidences to use to support the charges of Taking Indecent Liberties is not error, and cannot serve as the basis for overturning a unanimous jury verdict.
First Degree Statutory Rape
The disjunctive analysis used in first degree sexual offense and taking indecent liberties cases does not apply to rape cases. Here, the majority says there is ambiguity as to which incidents support which verdicts of rape. At trial the victim testified, describing five very specific instances of rape: (1) partial penetration on the couch; (2) penetration on couch in Casper’s room; (3) penetration on couch in living room; (4) penetration following incident with screwdriver; (5) penetration on floor in Casper’s room. After hearing all the testimony, five separate verdict sheets as to the rape offenses were presented to the jury6 and the jury returned verdicts of guilty on five counts of rape. Based on State v. Wiggins, this, without more, is sufficient to defeat a unanimity argument. See State v. Wiggins, 161 N.C. App. 583, 589 S.E.2d 402 (2003) (holding where the number of qualifying incidents testified to by the victim at trial was the same as the number of qualifying incidents on the verdict sheets submitted, there was no danger of lack of unanimity).
*221Moreover, defendant in the instant case raises the unanimity argument out of thin air. There was no objection at trial because nothing objectionable occurred. The evidence was presented. The jury was instructed on all issues, including unanimity7. There were no questions or other indications from the jury to suggest any confusion as to their duty in the trial. The jury deliberated and reached a decision on all counts submitted to them in less than 1 and 1/2 hours. Upon return of the verdicts, all jurors indicated assent to their verdict. In fact, all jurors were polled individually, the charges read to them using the applicable CRS number, and each juror affirmed their unanimous verdict in open court, as to each charge submitted.
Clearly, the verdicts in this case do not raise a danger of lack of unanimity. Is there any rational basis upon which the jury could have found defendant committed one act of rape but not another? The defendant’s defense was simply “I did not do it.” In the instant case, where nothing occurred during the course of trial nor during jury deliberations to raise a concern, where is the showing of error in the court’s instructions or a lack of unanimity?
The courts properly presume that jurors pay close attention to the instructions of the trial judge in criminal cases and that they “undertake to understand, comprehend, and follow the instructions as given.” State v. Nicholson, 355 N.C. 1, 60, 558 S.E.2d 109, 148, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002) (citation omitted). As our Supreme Court has stated, “these instructions, when read as a whole, required a verdict of not guilty if all twelve jurors were not satisfied beyond a reasonable doubt that the defendant engaged in an unlawful sexual act . . . [and there is] nothing in the record indicat[ing] any confusion, misunderstanding, or disagreement among the members of the jury which would indicate a lack of unanimity.” Hartness, 326 N.C. at 565, 391 S.E.2d at 179.
As a practical matter, albeit subject to concerns of invading the province of the jury, I agree with the majority that in cases involving multiple acts of child sexual assault the better practice might be for the state to draft indictments and use verdict sheets which specify the act that is the basis for the charge. However, and most importantly, under our law, failure to do so is not reversible error.
*222[Our] statutes do not specify what constitutes a proper verdict sheet, . . . [n]or have our Courts required the verdict forms to match the specificity expected of the indictment.” State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240-241 (2002). A verdict is deemed sufficient if it “can be properly understood by reference to the indictment, evidence and jury instructions.”
State v. Connard, 81 N.C. App. 327, 336, 344 S.E.2d 568, 574 (1986), aff’d, 319 N.C. 392, 354 S.E.2d 238 (1987) (per curiam).
In the instant case defendant has failed to show a lack of unanimity in the jury verdicts. There must be more than a “possibility of a non-unanimous verdict” to overturn a unanimous jury verdict. We cannot decide cases based on speculation of what might have been. Perhaps the greatest danger posed by the majority opinion is that it would allow a convicted defendant to speculate on appeal, as to what a jury might have done during the course of deliberations at trial and with no indication the jury struggled with unanimity issues, grant defendant a new trial based on speculation. The burden is on defendant to show prejudicial error in order to have his conviction reversed and a new trial granted. Here, the evidence of record shows the jury was instructed on the law by the trial court, the jury was presented with a total of 14 separate verdicts sheets as to three specific types of sexual crimes, the jury had no questions or concerns during the course of deliberations, and in a fairly short time the jury convicted defendant in unanimous verdicts.
In my opinion, this defendant received a fair trial, free from prejudicial error as to his convictions of Taking Indecent Liberties with a Minor and First Degree Statutory Rape rendered by a unanimous jury in open court.
. The jury evaluated a total of 14 separate verdict sheets: Indecent Liberties (3); First Degree Sexual Offense (6); and First Degree Rape (5). Each of the First Degree Rape verdict sheets contained the following language: “We, the jury, return as our unanimous verdict that the defendant, Markeith Rodgers Lawrence, is: . . . Guilty of first degree statutory rape ...” All five verdict sheets are marked Guilty.
. “I instruct you that a verdict is not a verdict until all twelve jurors agree unanimously as to what your decision shall be . . . [W]hen you have reached a unanimous verdict. . . please have your foreperson write your verdict on the verdict forms . . .”