in the Court of Appeals 13 March 2019.
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.
J.D. ("Jeremy") 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.
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.
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.
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.
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.
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.
Second-Degree Sexual Exploitation of a Minor
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.
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)
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).
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
[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
Id. at 357, 255 S.E.2d at 395.
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.
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.
First-Degree Forcible Sexual Offense
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.
"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).
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."
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.
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
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.
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.
Attempted Larceny Admission
trial court found that there was a sufficient factual basis
to support defendant's admission to attempted larceny. We
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).
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).
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.
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.
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
Defendant's Right of Confrontation
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. We agree and conclude that the error
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).
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.
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
Level 3 Disposition
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.
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).
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. §
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.
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.
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 ...