Opinion
No. COA15-634
05-03-2016
IN THE MATTER OF: C.A.G.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth Jill Weese, for the State. Richard Croutharmel for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. New Hanover County, No. 10 JB 46 Appeal by juvenile from orders entered 4 March 2015 and 9 March 2015 by Judge J.H. Corpening, II in New Hanover County District Court. Heard in the Court of Appeals 17 November 2015. Attorney General Roy Cooper, by Assistant Attorney General Elizabeth Jill Weese, for the State. Richard Croutharmel for juvenile-appellant. GEER, Judge.
C.A.G., a juvenile, appeals from the trial court's orders (1) adjudicating him delinquent for two counts of sexual battery and (2) placing him on probation for 12 months and requiring community service. On appeal, the juvenile argues that the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence of the element of force required for sexual battery. The State did not present any evidence of actual force and relied instead on the doctrine of constructive force. However, because the State presented no evidence that the juvenile made a threat of physical harm, and there was no evidence of a special relationship between the juvenile and the victim such that a threat could be inferred, we hold there was insufficient evidence of constructive force and reverse the trial court's denial of the juvenile's motion to dismiss.
Facts
The State's evidence tended to show the following facts. On 17 December 2014, the juvenile, C.A.G., Violet, and Heather were participating in group work in Mr. Nathan Culp's 8th grade math class at Holly Shelter Middle School in New Hanover County, North Carolina. Violet and Heather were best friends and had worked together on numerous occasions in class, but neither knew the juvenile or had worked with him before. When Mr. Culp told his students to partner up for group work, the juvenile turned around and asked the two girls if he could partner with them, and they agreed. He turned his desk around and arranged himself so that his legs were under Violet's desk.
Pseudonyms are used to protect the juveniles' identities and for ease of reading.
As the two girls began to work on the assigned math problem, the juvenile began touching Violet on the inside of her legs, eventually working his way up to her crotch. Heather noticed the juvenile's hand underneath Violet's desk and that Violet looked upset and nervous. Sensing that something was wrong, Heather then spoke up and said, "we should get back to work," but the juvenile continued to keep his hands under the desk. Violet never told the juvenile to stop touching her. He continued to touch Violet throughout class, also touching Violet above her waist and over her breast.
At the end of class, Violet went to her next period and asked her teacher if she could go to the principal's office. Once there, she called her mother and asked her "can you come here? I need to talk to you. I can't tell you over the phone, I just need to talk to you in person . . . ." Once Violet's mother arrived and they discussed the incident that occurred in Mr. Culp's class, Violet's mother told Assistant Principal Amatullah Stanback, who then asked Violet if she would be able to write a statement. At this time, Violet was very upset, was crying, and could not write a statement. She told Assistant Principal Stanback that the juvenile touched her private areas. Later that day, Violet met with the school resource officer, Corporal Janice D. Covil of the New Hanover County Sheriff's Office, telling her what the juvenile had done, and was able to give a written statement at that time.
Assistant Principal Stanback met with the juvenile to discuss the incident. He denied all allegations, told Assistant Principal Stanback he was just doing his work, and that another student could verify his side of the story. Assistant Principal Stanback met with the other student who said he saw nothing and was busy working. Assistant Principal Stanback testified that during her questioning of the juvenile, he was uncooperative, annoyed, defensive, and, when asked to write a statement, he merely wrote, "I was doing my work." The juvenile took the stand at the adjudication hearing and further denied touching Violet.
On 21 January 2015, the New Hanover County Juvenile Court Counselor's Office filed two juvenile petitions alleging two separate counts of sexual battery against the juvenile. Although another attorney handled the first appearance hearing for the juvenile, his court-appointed attorney, Alexis Perkins, represented him at the 3 March 2015 adjudication hearing. At this hearing, Ms. Perkins informed the trial court that she had just met with her client the day before and discovered that he wanted to subpoena a witness who was present at the time it was alleged the juvenile committed the sexual batteries. Judge J.H. Corpening, II recessed to allow the parties to determine if they could bring the witness to the court room that day. After the break, Judge Corpening was informed that the proposed witness' mother would not allow him to testify. Judge Corpening then determined that because the parties were supposed to, at the first appearance, provide names of individuals who would testify, and that because "no names were provided at that time[,]" he decided to move forward with the case without calling the proposed witness. He then allowed Ms. Perkins more time to prepare her client's case, but after a seven minute recess, she claimed she was "ready to proceed with [the] hearing for [the juvenile]" and moved to sequester the witnesses.
At the close of the State's evidence, Ms. Perkins moved to dismiss for failure to prove the force element of the sexual battery offenses charged. This motion was denied. Ms. Perkins then called the juvenile to testify on his own behalf but did not reassert her motion to dismiss at the close of all the evidence.
Ultimately, the trial court adjudicated the juvenile delinquent for two counts of sexual battery. On 9 March 2015, Judge Corpening ordered the juvenile be placed on 12 months juvenile probation and that he perform 100 hours of community service. The juvenile filed a written notice of appeal on 23 March 2015.
Discussion
We first address the State's argument that the juvenile's appeal should be dismissed for failure to give timely notice of appeal. For a juvenile to appeal to this Court, "[n]otice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order." N.C. Gen. Stat. § 7B-2602 (2015). "It is well established that '[f]ailure to give timely notice of appeal . . . is jurisdictional, and an untimely attempt to appeal must be dismissed.' " In re A.L., 166 N.C. App. 276, 277, 601 S.E.2d 538, 538 (2004) (quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)). Here, the juvenile failed to give notice of appeal in open court and filed a notice of appeal on 23 March 2015, more than 10 days after the entry of the final order on 9 March 2015.
Because of his untimely notice of appeal, the juvenile has petitioned this Court to grant a writ of certiorari and to consider the issues raised on their merits. This Court may issue a writ of certiorari "to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C.R. App. P. 21(a)(1). Given the short amount of time between the expiration date for giving the notice of appeal in this case and the actual filing of the notice of appeal, as well as the fact that the delay in appealing was not due to any fault of the juvenile, we allow respondent's petition for writ of certiorari and review the juvenile's appeal on its merits.
On appeal, the juvenile argues that the trial court erred in denying his motion to dismiss both counts of sexual battery because the State failed to produce sufficient evidence of the force element. The State, however, argues that because the juvenile failed to renew his motion to dismiss at the close of all the evidence at the adjudicatory hearing, he has failed to preserve this issue for appellate review pursuant to Rule 10(a)(3) of the Rules of Appellate Procedure. The juvenile, however, claims the issue was preserved because his trial counsel argued vigorously for dismissal in closing statements. Yet, because the juvenile's attorney did not argue specifically in closing arguments that there was a lack of evidence on the element of force, we agree with the State that this issue was not properly preserved for appeal.
In the alternative, the juvenile requests that we invoke Rule 2 of the Rules of Appellate Procedure to "suspend or vary the requirements or provisions" of Rule 10(a)(3) so as to prevent "manifest injustice." N.C.R. App. P. 2. "This Court has tended to invoke Rule 2 for the prevention of 'manifest injustice' in circumstances in which substantial rights of an appellant are affected." State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007). We have previously applied Rule 2 under similar circumstances where sufficiency of the evidence is at issue and the substantial rights of the appellant are endangered on account of an issue of preservation. See, e.g., State v. Batchelor, 190 N.C. App. 369, 377, 660 S.E.2d 158, 164 (2008) ("Nevertheless, assuming arguendo that Defendant's argument [for a motion to dismiss] was not preserved, this is an appropriate case in which to invoke Rule 2 to address the issue of the sufficiency of the evidence."). Accordingly, we exercise our discretion to apply Rule 2 here to determine whether the trial court erred in failing to dismiss the sexual battery offenses charged against the juvenile on account of a lack of evidence of the force element.
"We review a trial court's denial of a [juvenile's] motion to dismiss de novo." In re S.M.S., 196 N.C. App. 170, 171, 675 S.E.2d 44, 45 (2009). "To withstand a juvenile's motion to dismiss based on an insufficiency of the evidence, the State must present substantial evidence of each element of the offense alleged." In re S.R.S., 180 N.C. App. 151, 156, 636 S.E.2d 277, 281 (2006). "In ruling upon a motion to dismiss, the trial court considers the evidence in the light most favorable to the State, and affords the State the benefit of every reasonable inference of fact which may be drawn from the evidence." Id., 636 S.E.2d at 281-82.
"The essential elements of sexual battery are: (1) sexual contact with another person; (2) by force and against the will of the other person; and (3) for the purpose of sexual arousal, gratification or abuse." State v. Kelso, 187 N.C. App. 718, 722, 654 S.E.2d 28, 31 (2007). "[U]nder our sexual offense statutes, actual physical force is not required to satisfy the statutory requirement that the sexual act be committed 'by force and against the will' of the victim. Fear of serious bodily harm reasonably engendered by threats or other actions of a defendant and which causes the victim to consent to the sexual act takes the place of force and negates the consent." State v. Locklear, 304 N.C. 534, 540, 284 S.E.2d 500, 503 (1981) (emphasis added). Our courts have held that threats can amount to constructive force. State v. Raines, 72 N.C. App. 300, 303, 324 S.E.2d 279, 282 (1985).
The State argues here that the juvenile committed sexual battery by applying constructive force and relies solely on the testimony of Violet and Heather to establish this element. Specifically, the State claims that the element of constructive force is satisfied because both girls testified to Violet's fearful and nervous reaction to the juvenile touching her. The trial court below agreed with this understanding of constructive force and reasoned that because Violet had "anxiety issues when speaking out and being able to express herself" and because she "felt trapped in her seat as for 20 minutes" while the juvenile inappropriately touched her, there was sufficient evidence of constructive force to deny the juvenile's motion to dismiss.
To the extent that the trial court relied upon the touching itself to fulfill the requirement of force, this Court has rejected that approach. See id. at 303, 324 S.E.2d at 281 ("[W]e decline to accept the State's invitation to expand the 'physical force' doctrine and bring within its ambit the conduct -- the physical touching -- that constitutes the 'sexual act' itself in this case."). With respect to the evidence necessary to prove constructive force, this Court has held that evidence of constructive force generally amounts to "fear, fright, or coercion" of the victim but, specifically, requires " '[a] threat of serious bodily harm, which reasonably induces fear thereof . . . .' " Id. (quoting State v. Burns, 287 N.C. 102, 116, 214 S.E.2d 56, 65 (1975). Thus, the State has not proven constructive force when there is no evidence of either "the threat of physical force [or] any actual force preceding or constituting a threat." Id. at 304, 324 S.E.2d at 282. In other words, "for the concept of constructive force to apply, the threats resulting in fear, fright, or coercion must be threats of physical harm." In re T.W., 221 N.C. App. 193, 199, 726 S.E.2d 867, 871 (2012).
However, "[t]hreats need not be explicit so long as the totality of circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat." State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987). For example, in Etheridge, our Supreme Court inferred such a threat from the circumstances surrounding a parent-child relationship where "incidents of abuse all occurred while the boy lived as an unemancipated minor in [the] defendant's household, subject to [the] defendant's parental authority and threats of disciplinary action." Id. at 47-48, 352 S.E.2d at 681. Furthermore, this Court has found constructive force where the defendant "utilized his apparent status as a licensed, professional massage therapist to induce his victims to lie naked on the massage table, putting them in a position of complete vulnerability." State v. Viera, 189 N.C. App. 514, 518, 658 S.E.2d 529, 531 (2008). "Through this coercion, [the massage therapist] forced them to submit to the unwanted sexual contact." Id. Although this threat of physical harm was implicit, it "was delivered through his abuse of his position of trust and relative authority as a professional massage therapist." Id.
The evidence in this case is insufficient to meet the requirements for constructive force. While the State and the judge relied upon Violet's anxiety, this Court has previously held that a juvenile's preying on another child's fear of exposure is insufficient to prove constructive force. See In re T.W., 221 N.C. App. at 199, 726 S.E.2d at 872 (holding that juvenile's threats to expose boys' innermost secrets "were not sufficient to constitute constructive force because they did not place the boys in fear of physical harm"). In addition, this Court has also held that dominance of one child over another is not sufficient evidence to support a finding of constructive force under Etheridge. See In re T.W., 221 N.C. App. at 200, 726 S.E.2d at 872 (holding that when perpetrator and victims are minors of similar ages, dominance of one over the others "does not involve the same wielding of authority, disparity of power, and degree of fear that occurs between an abusive parent and a child" and Etheridge's constructive force theory does not apply).
Because the only evidence of constructive force consists of Violet's fear, and because the State has not presented any evidence amounting to a threat, either express or implied, of physical force, we hold that there is insufficient evidence of constructive force. It therefore follows that there is insufficient evidence, even in the light most favorable to the State, that the juvenile committed the two counts of sexual battery for which he was adjudicated. Accordingly, we reverse the trial court's denial of the juvenile's motion to dismiss and the juvenile's adjudication and dispositional orders. Because of our resolution of this appeal, we need not address the juvenile's remaining arguments.
REVERSED.
Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).