Opinion
No. COA14–948.
03-03-2015
In the Matter of C.L.-H.
Attorney General Roy Cooper, by Vanessa N. Totten, Assistant Attorney General, for the State. Mary McCullers Reece, for respondent-juvenile.
Attorney General Roy Cooper, by Vanessa N. Totten, Assistant Attorney General, for the State.
Mary McCullers Reece, for respondent-juvenile.
HUNTER, JR., Robert N., Judge.
C.L.-H. (“Carlos”) appeals from adjudication and disposition as a delinquent juvenile for two counts of crime against nature with two of his younger cousins in violation of N.C. Gen.Stat. § 14–177. Carlos challenges one of the adjudications, contending that the trial court (1) abused its discretion by finding a six-year-old competent to testify, and (2) erred by denying his motion to dismiss for insufficient evidence. We disagree and, for the reasons stated herein, affirm the adjudication of delinquency and the trial court's dispositional order.
Pseudonyms are used throughout this opinion to protect the minors' identities.
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I. Factual & Procedural History
On 12 April 2013, the State filed three petitions alleging that Carlos was delinquent, in that he had committed the offense of crime against nature with three of his younger cousins. On 20 November 2013, one petition was dismissed for lack of probable cause. The two remaining petitions came on for adjudication during Juvenile Sessions of Henderson County District Court on 15 January 2014 before the Honorable Athena F. Brooks and 20 February 2014 before the Honorable Emily G. Cowan.
The State's evidence tended to show that at the time of the incidents alleged in the petition, Carlos was approximately twelve years old, Bruno was nine, and Alejandro was four or five. For approximately six months beginning in the fall of 2011, Carlos and his mother lived in the same house as Alejandro and Bruno and their parents. It was during this time that the alleged incidents occurred. These events came to light approximately two years later, when Alejandro decided to tell his parents. Alejandro and Bruno's parents then questioned the boys and promptly contacted law enforcement. Detective Cecelia Rossell (“Detective Rossell”) of the Henderson County Sheriff Department investigated allegations that Alejandro, Bruno, and their oldest brother, whose petition was dismissed, had been rectally penetrated by their older cousin, Carlos.
Ten-year-old Bruno testified at the adjudication hearing that he and Carlos were in Bruno's mother's room while Alejandro was asleep. Carlos had a shirt on but his pants were pulled down. Bruno's pants and underwear were pulled down, and he was touching the bed only with his hand. Carlos touched Bruno's penis with his hand and then penetrated Bruno's rectum with his penis. Bruno stated that “[i]t hurt and it, like, it felt kind of good.” Bruno further testified that Carlos touched his behind with his penis “more than once.”
Six-year-old Alejandro testified to one particular instance when Carlos touched him inappropriately. Alejandro confirmed that “[w]hen [Carlos] touched [his] butt with his penis,” Alejandro's “pants [were] pulled down so [his] butt was showing.” Alejandro further confirmed that “there [was] nothing covering [his] butt” when Carlos touched him, and stated that it “hurt.” When the State elicited further testimony concerning this hurt, Alejandro responded: “[Carlos] put his penis in my Juebo and I told my Aunt Amelia.”
Detective Rossell testified that during her investigation she interviewed Bruno and Alejandro separately and their statements concerning Carlos's actions were consistent. Detective Rossell further testified that Bruno and Alejandro's testimonies concerning Carlos's actions were consistent with their prior interviews. Furthermore, the minors were asked to mark on an anatomical picture of a boy where Carlos had touched them, and both had indicated that Carlos had touched their penises and behinds. These pictures were admitted into evidence without objection.
At the close of the State's evidence, Carlos moved to dismiss both charges due to insufficient evidence of penetration. The court denied these motions. Carlos did not testify on his own behalf but his motions to dismiss were renewed at the close of all the evidence. On 15 April 2014, the trial court entered a Level 2 disposition, which included twelve months of probation and placement into a Level 4 residential treatment facility that was familiar with sexually aggressive youths. Carlos appeals.
II. Analysis
A. Competency of Witness
Carlos first contends that the trial court abused its discretion by admitting six-year-old Alejandro's testimony over objection on the ground that Alejandro was incompetent to testify. Specifically, Carlos argues that Alejandro should have been disqualified as a witness because he did not understand the duty to tell the truth and was incapable of adequately expressing himself. We disagree.
We employ the abuse-of-discretion standard to review a trial court's determination as to the competency of a witness to testify. See State v. Carter, 210 N.C.App. 156, 160–61, 707 S.E.2d 700, 704–05 (2011). “[E]very person is competent to be a witness unless the trial court determines that he or she is disqualified under the Rules of Evidence.” In re Clapp, 137 N.C.App. 14, 19, 526 S.E.2d 689, 694 (2000).
Rule 601(b) provides that “[a] person is disqualified to testify as a witness when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.” N.C. Gen.Stat. § 8C–1, Rule 601(b) (2013). “There is no age below which one is competent to testify.” State v. Reeves, 337 N.C. 700, 721, 448 S.E.2d 802, 813 (1994) (citation omitted).
Our Supreme Court has noted that the test of competency is “the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the juryin determining the truth of the matters as to which it is called upon to decide.” State v. Hicks, 319 N.C. 84, 88, 352 S.E.2d 424, 426 (1987) (citations and quotation marks omitted) (emphasis added). Trial courts, therefore, typically have an “obligation ... to make a preliminary determination as to the competency of a witness when a question as to the competency of the witness is raised by a party or by the circumstances.” State v. Eason, 328 N.C. 409, 427, 402 S.E.2d 809, 818 (1991). However, where a matter is heard without a jury, “the trial court is presumed to disregard incompetent evidence in making its decisions as a finder of fact.” State v. Jones, 186 N.C.App. 405, 411, 651 S.E.2d 589, 593 (2007). Therefore, in juvenile proceedings, which are conducted by a judge sitting without a jury, the presumption of the competency of a witness will generally be upheld under an abuse-of-discretion review on appeal, absent circumstances sufficient to rebut the presumption.
Whether a child is competent to testify “rests in the sound discretion of the trial court based upon the observation of the witness.” State v. Spaugh, 321 N.C. 550, 554, 364 S.E.2d 368, 371 (1988) (citation omitted). A juvenile competent to serve as a witness may nonetheless give answers that are “somewhat vague and self-contradictory, just as might be expected of a little child of such tender years.” State v. McNeely, 314 N.C. 451, 457, 333 S . E.2d 738, 742 (1985). Furthermore, “[c]onflicts in the statements by a witness affect the credibility of the witness, but not the competency of the testimony.” State v. Cooke, 278 N.C. 288, 291, 179 S.E.2d 365, 368 (1971) (citations omitted). “A ruling committed to a trial court's discretion may be upset only when it is shown that it could not have been the result of a reasoned decision.” McNeely, 314 N.C. at 453, 333 S.E.2d at 740 (citation omitted).
Here, the record reveals that six-year-old Alejandro testified at first that he did not understand the difference between the truth and a lie, and he answered it was true that two people were dressed as princesses in the courtroom. However, after further explanation by the State of the concepts of truth and falsity, Alejandro clarified it was “[n]ot true” that the courtroom held anyone dressed as a princess. Alejandro confirmed that he understood the difference between the truth, something that actually happened, and the lie, something that did not. Furthermore, Alejandro acknowledged that he “understand [s] it's very important to tell the truth in court today[.]”
We recognize that certain of Alejandro's answers were vague and self-contradictory, as might be expected of a child of such tender years. See McNeely, 314 N.C. at 457–58, 333 S.E.2d at 742 (upholding the trial court's ruling on competency of a five-year-old witness); see also State v. Robinson, 310 N.C. 530, 539, 313 S.E .2d 571, 577 (1984) (upholding a trial court's conclusion of the competency of a four-year-old witness notwithstanding her answers being “vague, even nonsensical, as one might expect from a little child of such tender years”). Nonetheless, at points in his testimony Alejandro stated that he knew what it meant to tell the truth and that he understood the duty to tell the truth in court. Employing to these facts the presumption that the trial court ignored incompetent evidence, the trial judge's determination as to Alejandro's competency to serve as a witness is not an abuse of discretion. Respondent-juvenile has failed to show that the determination could not have been the result of a reasoned decision and, therefore, that the trial court abused its discretion. See McNeely, 314 N.C. at 457–58, 333 S.E.2d at 742.
B. Evidence of Penetration
Carlos's final argument is that the trial court erred in denying his motion to dismiss the crime against nature charge as to Alejandro for insufficient evidence of penetration. We disagree.
“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). “Where the juvenile moves to dismiss, the trial court must determine whether there is substantial evidence ... of each essential element of the offense charged [.]” In re Heil, 145 N.C.App. 24, 28, 550 S.E.2d 815, 819 (2001) (internal quotation marks and citation omitted). The motion to dismiss should be denied “[i]f there is substantial evidencewhether direct, circumstantial, or both-to support a finding that the offense charged has been committed[.]”In re R.N., 206 N.C.App. 537, 539, 696 S.E.2d 898, 901 (2010) (citation and quotation omitted). “Substantial evidence is that amount of relevant evidence sufficient to persuade a rational juror to accept a particular conclusion.” Id.(citing State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980) ).
“In reviewing a challenge to the sufficiency of evidence, it is not our duty to weigh the evidence, but to determine whether there was substantial evidence to support the adjudication, viewing the evidence in the light most favorable to the State, and giving it the benefit of all reasonable inferences.” In re Heil, 145 N.C.App. at 29, 550 S.E.2d at 819 (citing State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000) ).
Here, the offense is crime against nature, an essential element of which is “some penetration, however slight, of a natural orifice of the body.” State v. Whittemore, 255 N.C. 583, 585, 122 S.E.2d 396, 398 (1961) (citations omitted). “Proof of penetration of or by the sexual organ is essential to conviction.” Id.; see also In re J.F.,––– N.C.App. –––, –––, 766 S.E.2d 341, 347 (2014).
The trial transcript reveals that the State elicited the following testimony from Alejandro, a Spanish-speaking witness whose answers were translated as follows:
Q: Do you remember [Carlos] touching you in your private areas one night or one day?
A: He touched my butt.
Q: Did you tell your mom or dad about that?
A: Yes.
Q: Do you remember talking to the lady, Detective Rossell, that's seated at my table?
A: Yes.
Q: Did you tell her that [Carlos] touched your butt?
A: Yes.
Q: What part of his body did he touch your butt with?
A: With his penis.
....
Q: Does that body part [the penis] have a name in Spanish that you are familiar with?
A: Juego.
Q: Juego. Is that the part of [Carlos's] body that touched your bottom?
A: Yes.
Q: The backside of the boy in the picture, does that show his bottom on it or his butt?
A: Yes.
Q: Okay. Can you point to it to show me.
MR. PEARSON: If we could have the record reflect that the witness is pointing on State's Exhibit Number 2, to the buttocks area—the diagram.
Q: When [Carlos] touched your butt with his penis or his coo—when he touched it with his penis, did it hurt?
A: Yes.
Q: Do you recall any other feelings you had or how it made you feel?
MS. GIERSBERG: Interpreter's going to request repetition.
A: [Carlos] put his penis in my Juebo and I told my Aunt Amelia.
When viewed in the light most favorable to the State, granting it the benefit of all reasonable inferences, the evidence supports the trial court's finding that Carlos's penis penetrated Alejandro's rectum. While Alejandro indicated that “juebo” or “juego” was equivalent to “penis,” it was reasonable for the determination of penetration, as the trial court noted, to turn on Alejandro's use of the preposition “in.” That Alejandro stated “in” immediately preceding the identification of his sexual organ—whether he meant his penis or his butt—and that he did so in response to the question concerning whether it hurt when Carlos “touched [Alejandro's] butt with his penis,” satisfies this Court that the trial court did not err in determining that penetration occurred.
Furthermore, without discussing the anatomical challenge presented by considering whether some penetration, however slight, can occur between two male sexual organs, it was reasonable for the trial court to infer that Alejandro meant “butt” when he said “[j]uebo.” We therefore find the evidence sufficient to support Carlos's adjudication of the crime against nature charge with Alejandro, as there was evidence from which the trial court could find that “some penetration, however slight” had occurred. See Whittemore, 255 N.C. at 585, 122 S.E.2d at 398 ; see also In re Heil, 145 N.C.App. at 29–30, 550 S.E.2d at 820.
III. Conclusion
For the foregoing reasons, we affirm the trial court's adjudication order as to the count of crime against nature with Alejandro and the trial court's disposition order as to the two counts of crime against nature.
AFFIRMED.
Judge BRYANT and Judge STROUD concur.
Report per Rule 30(e).
Opinion
Appeal by juvenile from order entered 15 April 2014 by Judge Emily G. Cowan in Henderson County Superior Court. Heard in the Court of Appeals 6 January 2015.