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In re J.D.

Court of Appeals of North Carolina

August 20, 2019

IN THE MATTER OF: J.D.

          Heard in the Court of Appeals 13 March 2019.

          Appeal by defendant from orders entered 13 November 2017 and 23 January 2018 by Judge Tabatha P. Holliday in Guilford County District Court No. 17 JB 37.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Stephanie A. Brennan, for the State

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant.

          ARROWOOD, JUDGE.

         Defendant J.D. ("Jeremy[1]") appeals from an order finding him delinquent for the offenses of first-degree forcible sexual offense and second-degree sexual exploitation of a minor. For the following reasons, we reverse.

         I. Background

         This case arises from sexual misconduct by Jeremy towards a friend who was attending a sleepover at his house. The evidence tended to show as follows: On 18 November 2016, Jeremy hosted a sleepover for a friend, Zane. Two of Jeremy's cousins, Carl and Dan, also attended. All four boys were of middle-school age. During the night, Zane awoke to find his pants pulled down and Jeremy behind him. He believed someone was holding down his legs. Zane testified that he "felt [Jeremy's] privates on [his] butt" but that he did not feel them "go into [his] butt." Dan filmed much of the incident. In the video Jeremy can be heard saying "[Dan], do not record this." The video eventually ended up on Facebook.

         A juvenile petition was filed against Jeremy based on the incident. A hearing on the matter was held in November 2017. Among the evidence presented were statements to the police from Dan and Carl, neither of whom testified at trial. Jeremy's motions to dismiss at the close of the State's evidence and at the close of all evidence were denied. Following the hearing, the trial court entered a written order adjudicating Jeremy delinquent based on the determination that Jeremy had committed first-degree forcible sexual offense for the assault and second-degree exploitation of a minor for his role in the recording of the assault.

         The court, however, continued disposition until Jeremy could be assessed by the Children's Hope Alliance (CHA). The CHA report made numerous findings about Jeremy, including that his risk factors for sexually harmful behaviors were in the low to low moderate range. The court counselor recommended a level 2 disposition.

         Before the disposition hearing began, Jeremy admitted to an attempted larceny of a bicycle. On 23 January 2018, after considering Jeremy's assessments and his admission to larceny, the trial court entered an order punishing Jeremy at level 3 and committing him to a Youth Detention Center (YDC) indefinitely. Jeremy appealed and requested his release pending disposition of the appeal. A hearing was held on 20 February 2018 on the question of his release. The trial court entered an order concluding Jeremy would remain in YDC.

         II. Discussion

         Defendant argues the trial court erred by: (1) denying his motion to dismiss the second-degree sexual exploitation of a minor charge, (2) denying his motion to dismiss the first-degree forcible sexual offense charge, (3) accepting his admission to attempted larceny when there was an insufficient factual basis, (4) violating the statutory mandate to protect his confrontation right, and (5) failing to include findings and conclusions that a level 3 disposition was appropriate in the disposition order and committing him to YDC pending the outcome of the appeal without finding compelling reasons for the confinement. We address each of these issues in turn.

         1. Second-Degree Sexual Exploitation of a Minor

         The trial court found defendant guilty of second-degree sexual exploitation of a minor. We find that the trial court erred in denying the motion to dismiss because the evidence was insufficient to support this charge as a matter of law.

         Whether the trial court erred in denying a motion to dismiss is reviewed de novo. In re A. N.C. , 225 N.C.App. 315, 324, 750 S.E.2d 835, 841 (2013). In order to prevail on a motion to dismiss in a juvenile matter, the State must offer "substantial evidence of each of the material elements of the offense alleged." In re Eller, 331 N.C. 714, 717, 417 S.E.2d 479, 481 (1992). Taking the evidence in the light most favorable to the State, as we are required to do, In re A.W., 209 N.C. App 596, 599, 706 S.E.2d 305, 307 (2011), evidence must be "sufficient to raise more than a suspicion or possibility of the respondent's guilt." In re Walker, 83 N.C.App. 46, 48, 348 S.E.2d 823, 824 (1986) (citation omitted).

         Second-degree sexual exploitation of a minor requires evidence that the defendant knowingly "film[ed]" or "[d]istribut[ed] . . . material that contains a visual representation of a minor engaged in sexual activity." N.C. Gen. Stat. § 14-190.17 (2017) (emphasis added). "[T]he common thread running through the conduct statutorily defined as second-degree sexual offense [is] that the defendant [took] an active role in the production or distribution of child pornography without directly facilitating the involvement of the child victim in the activities depicted in the material in question." State v. Fletcher, 370 N.C. 313, 321, 807 S.E.2d 528, 535 (2017) (emphasis added).

         The State argues that the trial court properly concluded that Jeremy and Dan were acting in concert in regards to the filming of the incident and relies on State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979), which found that:

[i]t is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

Id. at 357, 255 S.E.2d at 395.

         The State contends the evidence shows that the boys' common plan or purpose was to humiliate the victim. There is nothing in the record to support this. In fact, from the evidence, it is clear that Jeremy does not want to be filmed, as he explicitly tells Dan to stop recording. Although he was in the video, Jeremy was being filmed against his will. "Mere presence at the scene of a crime is not itself a crime, absent at least some sharing of criminal intent." State v. Holloway, __ N.C.App. __, __, 793 S.E.2d 766, 774 (2016) (citation omitted), writ denied, discretionary review denied, 369 N.C. 571, 798 S.E.2d 525 (2017). Furthermore, there was no evidence presented that Jeremy wished for this video to be made or that he was the one who distributed it.

         Because there was no evidence that Jeremy took an active role in the production or distribution of the video, the trial court erred in denying Jeremy's motion to dismiss the charge of second-degree sexual exploitation of a minor. Jeremy's adjudication for this charge should be vacated.

         2. First-Degree Forcible Sexual Offense

         In order to meet its burden to convict a defendant of first-degree sexual offense the State must show that defendant (1) "engage[d] in a sexual act with another person by force and against the will of the other person," and (2) the existence of at least one of three additional factors. See N.C. Gen. Stat. § 14-27.26 (2017). Because the evidence is not sufficient to show that Jeremy engaged in a "sexual act" with Zane, we need not reach the additional factors.

         A "sexual act" is defined as "[c]unnilingus, fellatio, analingus, or anal intercourse[.]" In order to have a sexual act there must be "penetration, however slight by any object into the genital or anal opening of another person's body." N.C. Gen. Stat. § 14-27.20(4) (2017). On the other hand, "sexual contact" is defined as the (i) "[t]ouching 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 . . ." N.C. Gen. Stat §14-27.20(5) (2017).

         At trial, Zane denied that anal intercourse occurred. Zane testified that he only "felt [defendant's] privates on [his] butt" but, when asked if he felt defendant's privates go into his butt, however slightly, he responded "[n]ot that I know of." Furthermore, the prosecutor admitted at trial that, "there was not evidence of penetration."

         This Court has found that a totality of the evidence, including substantial evidence of penetration, along with the victim's ambiguous statement that penetration may have occurred, is sufficient for a finding that penetration did occur. See State v. Sprouse, 217 N.C.App. 230, 237, 719 S.E.2d 234, 240 (2011); State v. Estes, 99 N.C.App. 312, 316, 393 S.E.2d 158, 160 (1990). However, in the instant case, the victim's statement is not ambiguous. Zane specifically states in his testimony that penetration did not occur. Thus, the State has failed to prove penetration, the central element of this crime.

         To support its contention that intercourse occurred, the State relies upon the video taken by Dan. This video shows no more than two boys engaged in "sexual contact" not a "sexual act." While it may have been sufficient to have shown that defendant engaged in sexual contact by force against the will of Zane, which is sexual battery in violation of N.C. Gen. Stat. §14-27.33 (2017), it does not show a sexual act necessary to prove forcible sexual assault.

         Given Zane's testimony that no sexual penetration occurred, this case is similar to State v. Hicks, 319 N.C. 84');">319 N.C. 84, 90, 352 S.E.2d 424, 427 (1987) where our Supreme Court reversed a sexual offense conviction, given the ambiguity of the victim's testimony as to whether anal intercourse had occurred. The dissent chooses to ignore Zane's denial of penetration and argues that, when taking the evidence in the light most favorable to the State, the trial court did not err. The fatal flaw in the dissent's argument is that circumstantial evidence cannot be used to overcome a victim's direct testimony that no penetration occurred.

         Because there was not substantial evidence for anal intercourse, even when looking at the evidence in the light most favorable to the State, the trial court erred in denying defendant's motion to dismiss the charge of first-degree sexual offense.

         3. Attempted Larceny Admission

         The trial court found that there was a sufficient factual basis to support defendant's admission to attempted larceny. We disagree.

         The trial court must determine that there is a sufficient factual basis for a juvenile's admission of guilt before accepting the admission, and this factual basis may be based on statements presented by the attorneys. N.C. Gen. Stat. § 7B-2407(c) (2017); In re C.L., 217 N.C.App. 109, 114, 719 S.E.2d 132, 135 (2011). This court has found that if the State fails to provide information in compliance with N.C. Gen. Stat. § 7B-2407(c) then the juvenile's admission of guilt must be vacated. In re D.C., 191 N.C.App. 246, 248, 662 S.E.2d 570, 572 (2008).

         Attempted larceny requires proof that the defendant took affirmative steps, but did not succeed, to take another's property with no intent to return it. See State v. Weaver, 123 N.C.App. 276, 2473 S.E.2d 362');">87473 S.E.2d 362, 369 (1996) (setting forth the elements of attempted larceny).

         The facts presented at trial do not support Jeremy's admission of guilt. The bicycle was stolen by two black males. Jeremy, a black male himself, was later found by officers biking down the road with two others who also matched the description. He was described by the prosecutor as "kind of off on his own" from the other two. When asked to stop by the officers, of the three, only Jeremy stopped. Jeremy told officers that he had not stolen the bicycle, that he knew who had, and admitted to having bolt cutters in his back pack.

         There was not a showing of the requisite intent that defendant intended to steal, or assist others in stealing, the bicycle. Defendant's counsel argued that defendant loaned someone his book bag, who then placed bolt cutters inside it and left to "do their deed." The State presented no evidence, except to mention that "I believe the property was recovered." It is unclear where or from whom the bicycle was recovered.

         Because the State failed to present sufficient evidence that defendant attempted to steal the bicycle, the trial court erred in accepting Jeremy's admission of attempted larceny. The adjudication for attempted larceny should be vacated.

         4. Defendant's Right of Confrontation

         In addition to the video of the incident and testimony from Jeremy and Zane, the State offered out-of-court statements from Dan and Carl, statements which tended to support the charges against Jeremy. These statements are part of the circumstantial evidence which the dissent relies upon to try to overcome the victim's testimony that no penetration occurred. Jeremy argues that these statements were admitted in violation of his constitutional right to confront and cross-examine witnesses.[2] We agree and conclude that the error was prejudicial.

         Errors affecting constitutional rights are presumed to be prejudicial and warrant a new trial unless the State can prove that the error was harmless beyond a reasonable doubt. State v. Knight, 245 N.C.App. 532, 548, 785 S.E.2d 324, 336 (2016) (citation omitted), aff'd as modified, 369 N.C. 640, 799 S.E.2d 603 (2017).

         The State argues that the evidence was overwhelming where there was a videotape of the assault and testimony from the victim and defendant. However, the evidence presented at trial was not overwhelming. Zane denied that any penetration occurred and the video evidence was, at most, ambiguous. In order to attempt to overcome Zane's testimony, the State referenced Dan and Carl's statements numerous times in its closing argument (e.g., "all [Dan] know[s] about the video is that they was doing it;" "[Dan] showed a clear understanding of what he was seeing. He says, sex. He's asked, do you know what sex is? And he explains it, basically male penetrate another person, basically"). Even though Dan and Carl both stated they thought Zane and Jeremy were having sex, they also both stated that Zane consented, that it was Zane's idea, and that he pulled his own pants down. It cannot be said that this additional evidence that penetration occurred was not prejudicial to defendant's defense. Therefore, the State has failed to prove this testimony was harmless beyond a reasonable doubt.

         5. Sentencing Errors

         Although we find that the judgment must be reversed because of the errors set forth above, and therefore the disposition vacated, we feel it is also important to address the errors made by the trial court during the sentencing phase of the case.

         i. Level 3 Disposition

         While the State argues that the trial court sufficiently found each of the five statutorily required factors from N.C. Gen. Stat. § 7B-2501(c) to support a level 3 disposition, we find that there are not adequate written reasons in the Disposition and Commitment Order to support its findings.

         Under Section 7B-2501, the trial court is required to make findings of fact as to a number of enumerated factors regarding the best interests of the delinquent child and the protection of the public, as follows:

(1) The seriousness of the offense;
(2) The need to hold the juvenile accountable;
(3) The importance of protecting the public safety;
(4) The degree of culpability indicated by the circumstances of the particular case; and
(5) The rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.

N.C. Gen. Stat. § 7B-2501(c) (2017). "[A] trial court must consider each of the factors in Section 7B-2501(c) when entering a dispositional order." Matter of I.W.P., ___ N.C. App. ___, ___, 815 S.E.2d 696, 704 (2018). Whether the trial court properly complied with its statutory duty to make findings is a question of law to be reviewed de novo. See In re G.C., 230 N.C.App. 511, 516, 750 S.E.2d 548, 551 (2013) (citations omitted).

         CHA found that Jeremy's risk factors for sexually harmful behaviors are in the low to low moderate range. Jeremy's evaluation from the court counselor indicated that he "is a low/moderate risk for reoffending." The counselor recommended a level 2 disposition. The recommended terms of level 2 include, but are not limited to: cooperating with the TASK program and group therapy, having a curfew, not participating in sleepovers, having electronic devices monitored, not being used as a babysitter, maintaining passing grades at school, and not having contact with the victim. These suggested terms would have effectively satisfied the requirements of N.C. Gen. Stat. § 7B-2501(c).

         The trial court found that the "[j]uvenile requires personal accountability for his actions [and] . . . requires more structure." It is unclear how the trial court reaches this conclusion as to why defendant must be committed at the YDC as his own home can provide him accountability and structure. The report from CHA indicated that defendant had a stable home life. The report further notes that defendant's family relationships are "noted to be 'close' and supportive" and that there was no reported history of Department of Social Services (DSS) visits or experiences with physical or sexual abuse.

         The trial court also found that defendant's "level of regulation in the short term is low." CHA had Jeremy complete the Adolescent Self-Regulatory Inventory (ASRI), which indicated he had "some level" of self-regulation, "some level" of short-term self-regulation and a "moderate level" of long-term self-regulation. The lowest score for short-term self-regulation is 13, the middle score is 39, and 65 is the highest score. Jeremy scored a 36, which is much closer to the middle score than the lowest score. The trial court did not indicate why any potential issues with Jeremy's self-regulation could only be corrected by sending defendant to YDC instead of the recommended counseling sessions.

         The trial court further found that "[j]uveniles [sic] YDC commitment and treatment will protect the public and provide juvenile the opportunity to mature regarding opportunistic and impulsive behavior." However, the order also noted that if there is not sex-specific individual or group therapy available at the YDC then he will complete it during his post-release supervision period. Having access to this therapy is essential towards the goal of N.C. Gen. Stat. § 7B-2501(c) to protect the public and meet the needs and best interests ...


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