Opinion
No. COA12–1363.
2013-08-6
In the Matter of S.R.H.
Attorney General Roy Cooper, by Deputy Director Attorney General Caroline Farmer, for the State. Gerding Blass, PLLC, by Danielle Blass, for juvenile appellant.
Appeal by juvenile from adjudication order entered 3 July 2012 by Judge William G. Stewart in Wilson County District Court. Heard in the Court of Appeals 10 April 2013. Attorney General Roy Cooper, by Deputy Director Attorney General Caroline Farmer, for the State. Gerding Blass, PLLC, by Danielle Blass, for juvenile appellant.
McCULLOUGH, Judge.
On 3 July 2012, S.R.H. (“the juvenile”) was adjudicated delinquent for having committed the offense of sexual battery. On appeal, the juvenile contends that the trial court erred in denying his motion to dismiss for insufficient evidence and that the trial court's adjudication order lacks the required findings of fact under N.C. Gen.Stat. § 7B–2411 (2011). After careful review, we affirm the trial court's denial of the juvenile's motion to dismiss. However, we remand the case to the trial court for the entry of written findings of fact as mandated by N.C. Gen.Stat. § 7B–2411.
I. Background
On 11 April 2012, a juvenile petition was filed, alleging that S.R.H., a twelve-year-old boy, was delinquent in that he committed the act of sexual battery. An adjudication hearing was conducted on 27 June 2012. Following the hearing, the trial court adjudicated S.R.H. delinquent, and a written adjudication order was entered on 3 July 2012. Disposition was continued until 11 July 2012. A dispositional hearing was held on 11 July 2012, and following this hearing, the trial court declined to enter a disposition and remanded the juvenile to the custody of his mother. The juvenile gave written notice of appeal from the trial court's adjudication order on 11 July 2012, followed by amended notices of appeal on 26 July 2012 and 4 September 2012.
While an adjudication of delinquency is not a final order and is ordinarily not appealable, see In re J.V.J., 209 N.C.App. 737, 739, 707 S.E.2d 636, 637 (2011), the juvenile's appeal from the trial court's adjudication order is properly before this Court in the present case, as no disposition was made within 60 days after entry of the adjudication order and the juvenile's written notice of appeal was given within 70 days after entry of the trial court's adjudication order. See N.C. Gen.Stat. § 7B2602 (2011).
At the adjudication hearing, R.C., a ten-year-old schoolmate of S .R.H., testified that on 20 February 2012, she was attending the afterschool program helping the school's music teacher clean up her classroom. R.C. testified that she walked down the hallway to the janitor's closet to put away two brooms and a dustpan. R.C. testified that S.R.H. saw her in the hallway and told her to “hold up,” but she ignored him. R.C. testified that no one else was in the hallway besides the two of them. R.C. testified that after she put the cleaning items away, S.R.H. came inside the closet and closed the door behind him. R.C. testified that S.R.H. then grabbed the bottom of her shirt with both hands and started pulling her to him. R.C. testified that S.R.H. stated, “You're going to come here[,]” and she said “ [n] o.” R.C. testified that S.R.H. touched her in her lower front and back “private” areas outside of her clothing. R.C. testified that she “got scared,” pushed his hands away, and ran out the door and down the hallway. R.C. testified that she had never talked to S.R.H. before this alleged incident, although she stated that in the third and fourth grades, S .R.H. would gesture to R.C. and ask her to call him. R.C. also testified that S.R.H. had similarly touched another girl.
R.C. further testified that she did not tell the principal about the incident because she was concerned that the afterschool teacher would be mad at her for not telling the teacher where she was. R.C. also testified that she did not tell her parents about the incident because she had lied to them in the past and she thought they would not believe her. R.C. stated that she told two of her friends, H.J. and S.M., about the encounter the same day and on the following day. R.C. testified that she was asked to come to the principal's office after another student overheard S.R.H. telling a friend about the incident and told the principal. R.C. testified that she later saw S.R.H. in the principal's office, and he threatened to “break her back” for lying about him. R.C.'s two friends, H.J. and S.M., also testified regarding what R.C. had told them about her encounter with S.R.H.
At the close of the State's evidence, the juvenile made a motion to dismiss the juvenile petition, arguing the State had presented insufficient evidence of sexual battery. The juvenile argued that it was unclear from the testimony where S.R.H. had allegedly touched R.C. and that no evidence had been presented that any touching was done for the purpose of sexual gratification or sexual arousal. The trial court denied the juvenile's motion to dismiss.
S.R.H. testified in his own defense at the adjudication hearing. S.R.H. testified that on 20 February 2012, he was on safety patrol duty in the school hallway, a privilege that he had earned. S.R.H. testified that he saw R.C. in the hallway and opened the door to the janitor's closet for her, but he stated he did not go into the closet with her or otherwise speak to or touch her. The juvenile did not renew his motion to dismiss the juvenile petition at the close of all the evidence.
II. Discussion
A. Preservation of Issue
“[J]uveniles ‘may challenge the sufficiency of the evidence by moving to dismiss the juvenile petition.’ “ In re Heil, 145 N.C.App. 24, 28, 550 S.E.2d 815, 819 (2001) (quoting In re Davis, 126 N.C.App. 64, 65–66, 483 S.E.2d 440, 441 (1997)). “ ‘However, if a defendant [or juvenile] fails to move to dismiss the action ... at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.’ “ In re Hartsock, 158 N.C.App. 287, 291, 580 S.E.2d 395, 398 (2003) (alteration and ellipsis in original) (quoting N.C.R.App. P. 10(b)(3) (2013)). Here, although the juvenile moved to dismiss the juvenile petition for insufficient evidence at the close of the State's evidence, the juvenile subsequently failed to move to dismiss the juvenile petition at the close of all the evidence.
Despite his failure to so move, the juvenile argues that his challenge to the sufficiency of the evidence was nevertheless preserved for appellate review on the basis of our decision in In re S.M., 190 N.C.App. 579, 660 S.E.2d 653 (2008). In the case of In re S.M.:
At the close of the State's evidence, [the juvenile] moved for dismissal for insufficient evidence, and her motion was denied. [The juvenile] did not offer any witness testimony; her evidence consisted of the written statements by several teachers. After [the juvenile] introduced these statements, she rested her case and the trial court immediately asked[,] “Would you like to be heard?” [The juvenile]'s counsel argued vigorously that the evidence was insufficient to support the charged offense.
Id. at 581–82, 660 S.E.2d at 655 (emphasis added). On appeal, we concluded this was sufficient to preserve the juvenile's right to review the trial court's denial of her motion to dismiss. Id. at 582, 660 S.E.2d at 655.
Here, however, unlike in In re S.M., the juvenile offered live testimony on his own behalf. Moreover, the juvenile did not clearly challenge the sufficiency of the evidence, as compared to its weight, in his closing argument. Rather, the juvenile's entire closing argument attacked the credibility of R.C. as compared to that of the juvenile, and only noted in conclusion that “[t]here hasn't been sufficient evidence presented by the State.” Accordingly, we do not find our opinion in In re S.M. controlling in the present case, and because the juvenile did not renew his motion to dismiss at the conclusion of all the evidence, he did not properly preserve this issue for appellate review.
Nonetheless, the juvenile has simultaneously asserted that he was denied the effective assistance of trial counsel because of his trial counsel's failure to renew the motion to dismiss at the close of all the evidence. The juvenile again asserts that because the State presented insufficient evidence of sexual battery, the trial court would have granted the juvenile's motion to dismiss at the close of all the evidence had his trial counsel properly moved to do so. In light of this argument, we review the merits of his challenge to the sufficiency of the evidence together with his ineffective assistance of counsel argument.
B. Insufficient Evidence of Sexual Battery
“Where the juvenile moves to dismiss, the trial court must determine ‘whether there is substantial evidence (1) of each essential element of the offense charged, ... and (2) of [juvenile's] being the perpetrator of such offense.’ “ Heil, 145 N.C.App. at 28, 550 S.E.2d at 819 (alteration and ellipsis in original) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). “In reviewing a motion to dismiss a juvenile petition, the evidence must be considered in the light most favorable to the State, which is entitled to every reasonable inference that may be drawn from the evidence.” In re B.D.N., 186 N.C.App. 108, 111–12, 649 S.E.2d 913, 915 (2007). “ ‘Whether evidence presented constitutes substantial evidence is a question of law for the court.’ “ State v. Stager, 329 N.C. 278, 322, 406 S.E.2d 876, 901 (1991) (quoting State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). “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 .” Heil, 145 N.C.App. at 29, 550 S.E.2d at 819. “If a rational trier of fact could find every element of the crime beyond a reasonable doubt from the evidence presented, a motion to dismiss is properly denied in juvenile court just as in adult criminal proceedings.” In re T.S., 133 N.C.App. 272, 275, 515 S.E.2d 230, 232 (1999). “However, as in adult proceedings, if the evidence does not support each element of the crime, the charge must be dismissed. “ Id.
Pursuant to N.C. Gen.Stat. § 14–27.5A(a)(1) (2011), “[a] person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person ... [b]y force and against the will of the other person[.]” Id. “Sexual contact “ is defined as “(i) touching the sexual organ, anus, breast, groin, or buttocks of any person, (ii) a person touching another person with their own sexual organ, anus, breast, groin, or buttocks, or (iii) a person ejaculating, emitting, or placing semen, urine, or feces upon any part of another person.” Id. § 14–27.1(5) (2011). In addition, “touching” is specifically defined as “physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.” Id. § 14–27.1(6). Accordingly, “[t]he 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). The juvenile argues the State failed to present sufficient evidence of all three elements in the present case.
As to the element of intent—that the juvenile acted for the purpose of sexual gratification, sexual arousal, or sexual abuse—this Court has held that in cases involving juvenile offenders, “without some evidence of the child's maturity, intent, experience, or other factor indicating his purpose in acting, sexual ambitions must not be assigned to a child's actions. “ In re T.S ., 133 N.C.App. at 277, 515 S.E.2d at 233. In other words, the mere act of touching is not enough to show purpose on behalf of a juvenile, as the element of intent “may not be inferred solely from the act itself.” Id. In the present case, the juvenile argues the State presented no evidence “of prior sexual activity, ... of any unsolicited protestations of innocence prior to the accusation, ... that S.R.H. instructed R.C. not to mention the alleged encounter to others,” nor of any “prior encounters between the parties.”
To the contrary, the State likens the facts presented here to those presented in In re T.C.S., 148 N.C.App. 297, 558 S.E.2d 251 (2002), in which we found “sufficient evidence of maturity and intent to show the required element of ‘for the purpose of arousing or gratifying sexual desire.’ “ Id. at 303, 558 S.E.2d at 254. In In re T.C.S., “the juvenile was almost twelve years of age when he was seen holding hands with the five-year-old victim in the presence of her three-year-old sister. “ Id. at 302, 558 S.E.2d at 254. A witness testified that she observed the five-year-old victim appear to act “at the insistence and direction of” the juvenile and that she further observed the juvenile appear to place his hands on his own private parts while the five-year-old victim was taking off her clothes. Id. at 302–03, 558 S.E.2d at 254. The encounter between the juvenile and the victim occurred in a wooded area, and when confronted by an adult upon exiting the woods, the juvenile “smarted off” and told the witness “that what the children had been doing was ‘none of your business.’ “ Id. In light of these facts, we observed that “[t]he age disparity, the control by the juvenile, the location and secretive nature of [the juvenile's] actions, and the attitude of the juvenile [was] evidence of the maturity and intent of the juvenile” for purposes of satisfying the element of intent. Id.; see also In re K.C., –––N.C.App. ––––, ––––, ––– S.E.2d ––––, ––––, No. COA12–1157, slip op. at 8–9 (N.C.Ct.App. Apr. 16, 2013) (“[F]actors like age disparity, control by the juvenile, the location and secretive nature of the juvenile's actions, and the attitude of the juvenile should be taken into account.”).
In the present case, at the time of the alleged encounter, the juvenile was approximately twelve years old and the victim was approximately ten years old. The encounter occurred in an empty hallway and janitor's closet, with the juvenile subsequently closing the door behind him, during afterschool hours. Although no other witness observed the encounter between the juvenile and the victim, R.C., as well as her two friends, testified consistently that R.C. was scared of the juvenile during this private encounter. R.C. testified that the juvenile placed his hands on or in close proximity to her private areas and that he had similarly touched “a lot of other girls “ or at least “a girl.” R.C. further testified that the juvenile told her, “You're going to come here [,]” while pulling her closer to him. Given the age disparity between R.C. and the juvenile, the physical force exerted by the juvenile over R.C. in pulling her to him as she resisted, the secluded nature of the area in which the juvenile encountered R.C., and R.C.'s testimony as to the juvenile's similar experience with another girl, the evidence was sufficient, taken in the light most favorable to the State, to demonstrate the juvenile's maturity and to satisfy the element of intent in this case.
As to the element requiring sexual contact, the juvenile argues the testimonial evidence was insufficient to prove that any touching of body parts prohibited under the statute occurred. However, in the present case, R.C. testified multiple times that the juvenile touched her in her “lower front and back private “ areas over the top of her clothing. R.C. testified specifically that the juvenile's hand was on her “rear end” as well as in the front “close to [her] private parts[.]” Consistent with R.C.'s testimony, H.J. and S.M. likewise testified that R.C. had told them on the day of and the day after the incident that the juvenile had touched her lower front private area as well as her breast. This evidence is sufficient to conclude that the juvenile touched R.C.'s “sexual organ, ... breast, groin, or buttocks” with his hand through her clothing. N.C. Gen.Stat. § 14–27.1(5). Thus, taken in the light most favorable to the State, the evidence was sufficient to satisfy the element of sexual contact.
Finally, with respect to the remaining element, the juvenile argues the State failed to present sufficient evidence that he “acted by force.” The State fails to address the juvenile's argument concerning the use of force, contending that the element at issue requires either that the encounter was “by force “ or “against the will of the victim.” However, the plain language of the sexual battery statute, as well as the case of State v. Kelso, 187 N.C.App. 718, 654 S.E.2d 28 (2007), cited by the State in support of their assertion that the statute uses the “or” conjunctive, clearly indicates that the element requires both that the encounter was “[b]y force and against the will of the other person[.]” N.C. Gen.Stat. § 14–27.5A(a)(1) (emphasis added); see also Kelso, 187 N.C.App. at 722, 654 S.E.2d at 31;State v. Viera, 189 N.C.App. 514, 517, 658 S.E.2d 529, 531 (2008) (“Sexual battery must occur ‘[b]y force and against the will of the other person.’ “ (emphasis added) (quoting N.C. Gen.Stat. § 14–27.5A(a)(1))).
“The requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion. Constructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim's submission to sexual acts. Threats 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.”
Viera, 189 N.C.App. at 517, 658 S.E.2d at 531 (quoting State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987) (citations omitted)).
Here, R.C. testified that the juvenile used both hands to grab her shirt while stating, “You're going to come here.” R.C. testified that when the juvenile grabbed her shirt to pull her closer, he touched her on or near her front and back private areas. R.C. testified that she got scared, told him “no,” and ultimately pushed his hands away and ran out of the closet and down the hallway. S.M. also testified that R.C. had stated she was scared and nervous during the encounter with the juvenile. Taken in the light most favorable to the State, this evidence is sufficient to satisfy the element that the juvenile exerted force over R.C. in pulling her to him and grabbing her private areas despite her resistance to the juvenile. Because the State presented sufficient evidence to satisfy all three elements of the offense, the trial court properly denied the juvenile's motion to dismiss.
C. Ineffective Assistance of Counsel
“To prevail on a claim of ineffective assistance of counsel, a defendant [or juvenile] must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006). “Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. “ Id. (internal quotation marks and citations omitted). “Generally, to establish prejudice, a defendant [or juvenile] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (internal quotation marks and citations omitted).
“[I]f the evidence is sufficient to support a conviction, the defendant [or juvenile] is not prejudiced by his counsel's failure to make a motion to dismiss at the close of all the evidence.” State v. Fraley, 202 N.C.App. 457, 467, 688 S.E.2d 778, 786,disc. review denied,364 N.C. 243, 698 S.E.2d 660 (2010). Since we have found that the evidence in the present case was sufficient to support the adjudication, “ ‘[the juvenile] has not shown counsel's assistance to be constitutionally inadequate,’ “ and thus his argument is without merit. Id. (quoting State v. Gayton–Barbosa, 197 N.C.App. 129, 141, 676 S.E.2d 586, 594 (2009)).
D. Adjudicatory Findings of Fact
N.C. Gen.Stat. § 7B–2411 (2011) provides:
If the court finds that the allegations in the petition have been proved as provided in G.S. 7B–2409, the court shall so state in a written order of adjudication, which shall include, but not be limited to, the date of the offense, the misdemeanor or felony classification of the offense, and the date of adjudication.
Id. “[A]t a minimum, section 7B–2411 requires a court to state in a written order that ‘the allegations in the petition have been proved [beyond a reasonable doubt].’ “ In re J.V.J., 209 N.C.App. 737, 740, 707 S.E.2d 636, 638 (2011) (second alteration in original) (quoting N.C. Gen.Stat. § 7B–2411).
In the present case, the State concedes the trial court failed to include in its written adjudication order a finding of fact stating that the allegations contained in the juvenile petition have been proved beyond a reasonable doubt. Indeed, although the adjudication order states that the sexual battery offense alleged in the juvenile petition is a class A1 misdemeanor that occurred on 20 February 2012, the order fails to include any written findings of fact, including that the facts of the juvenile petition were proved beyond a reasonable doubt in the large blank space contained on the adjudication order. Accordingly, we must remand this case to the trial court to make the statutorily mandated findings in its written adjudication order. See In re J.V.J., 209 N.C.App. at 741, 707 S.E.2d at 638.
III. Conclusion
We hold the State presented sufficient evidence to satisfy all three elements of the offense of sexual battery, and the trial court therefore properly denied the juvenile's motion to dismiss. Because the evidence in the present case was sufficient to support the adjudication, the juvenile was not denied the effective assistance of counsel when his trial counsel failed to move to dismiss the charge at the close of all the evidence.
However, because the trial court's order fails to include any written findings of fact, including that the facts of the petition were proved beyond a reasonable doubt, we must remand this case to the trial court to make the statutorily mandated findings under N.C. Gen.Stat. § 7B–2411 in its written adjudication order.
Affirmed in part, remanded in part. Judges BRYANT and HUNTER, JR. (ROBERT N.) concur.
Report per Rule 30(e).