Heard in the Court of Appeals September 11, 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Appeal by juvenile from adjudication order entered 14 May 2013 by Judge Regan A. Miller and from disposition order entered 23 January 2014 by Judge Kimberly Best-Staton
in Mecklenburg County District Court.
Mecklenburg County. No. 11 JB 522.
Attorney General Roy Cooper, bye Special Deputy Attorney General Gerald K. Robbins and Assistant Attorney General Kimberly N. Callahan, for the State.
Michelle FormyDuval Lynch, for juvenile-appellant.
DIETZ, Judge. Judges STEELMAN and GEER concur.
This juvenile case involves acts of oral sex between two boys, ages fourteen and seven. Fourteen-year-old J.F. convinced the seven-year-old victim to perform fellatio on him, and also performed fellatio on the victim. The trial court adjudicated J.F. delinquent on two counts of first-degree sexual offense and two counts of crime against nature.
On appeal, J.F. argues that the petitions charging him with these juvenile offenses were defective. J.F. also contends that there was insufficient evidence of sexual purpose and of penetration, which J.F. argues are essential elements of the charged offenses. Finally, in a separate appeal, J.F. challenges the terms of his disposition. On the State's motion, we consolidated the two appeals for purposes of decision.
We hold that the petitions in this case are sufficient, that sexual purpose is not an element of either charged offense, and that penetration is not an element of first-degree sexual offense. Accordingly, we affirm the adjudication on the two first-degree sexual offense charges.
However, we must reverse the two adjudications for crime against nature. Our case
law requires penetration as an element of the crime against nature offense. Here, the victim testified that there was no penetration and that the two merely " licked" each other's genitalia. As a result, we are constrained to reverse the two crime against nature adjudications.
Accordingly, we affirm the trial court's adjudication order on the two counts of first-degree sexual offense; we reverse the trial court's adjudication order on the two counts of crime against nature; and we vacate the trial court's disposition order and remand for a new disposition.
Facts and Procedural History
On 20 or 21 July 2012, M.H. and J.F. were playing together at the home of M.H.'s grandmother, Mrs. Johnson. Mrs. Johnson was J.F.'s foster mother. At the time, M.H. was seven years old and J.F. was fourteen years old. The two boys were alone in the open loft area of the Johnson home when J.F. asked M.H. to " suck" his penis. M.H. stated that he refused to suck J.F.'s penis, but after J.F. kept asking, M.H. did " lick" it. J.F. then licked M.H.'s penis. After this incident occurred, M.H. returned home, but he did not tell his mother or grandmother what had happened.
The following Sunday, M.H. approached his mother and asked, " why don't I have hair on my guts like [J.F.]?" " Guts" is a word that M.H. used to describe his genitalia. When his mother asked him how he knew this about J.F., M.H. told her that J.F. " asked me to suck his guts." M.H. said that he didn't do it because he knew it was wrong, but that J.F. kept asking him to " suck it like you're sucking a straw." M.H.'s mother immediately went to Mrs. Johnson's house to tell her what had happened. On the way, M.H.'s mother contacted the police and had them meet her there.
The State filed petitions against J.F. on 14 November 2012 for two counts of first-degree sexual offense, two counts of crime against nature, and one count of indecent liberties between children. The trial court held a delinquency hearing on 14 May 2013. At the close of the evidence, J.F.'s counsel moved to dismiss all of the charges, arguing that the petitions were ...