In re K.C.

• Decision Date: 16 April 2013
• Docket Number: No. COA12–1157.,COA12–1157.
• Citation: 742 S.E.2d 239
• Parties: In the Matter of K.C.
• Court: North Carolina Court of Appeals

742 S.E.2d 239

In the Matter of K.C.

No. COA12–1157.

Court of Appeals of North Carolina.

April 16, 2013.

Appeal by Juvenile K.C. from Order entered 19 July 2012 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 14 February 2013.

Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State.

The Law Office of Bruce T. Cunningham, Jr., Southern Pines, by Amanda S. Zimmer, for Juvenile.

STEPHENS, Judge.

Factual Background and Procedural History

This matter arises out of the filing of juvenile petitions alleging the offenses of simple assault and sexual battery. The case was heard at a session for juvenile hearings in District Court, Mecklenburg County, on 19 July 2012. Evidence offered at the hearing tended to show the following:

Juvenile Keith ¹ attends high school with the prosecuting witness, Karen, where they share classes. Both Keith and Karen are fifteen years old. The two typically sit far away from each other, but on 29 February 2012 they had a substitute teacher, and Keith was not sitting in his usual place. At one point during the day, Karen got up from her seat to shelve a book. Karen testified at the adjudicatory hearing that she bent over to place the book where it belonged when Keith “touched and grabbed [her].” Karen reacted by informing Keith: “Don't do that.” Keith did not respond.

Karen went to the substitute teacher and reported the incident. The substitute teacher informed the school resource officer, Scott Gallman, who investigated the matter and took statements from Karen and Keith. At the hearing, Officer Gallman testified that Karen had seemed “a little upset” when she informed him that Keith “grabbed and squeezed [her buttocks].” Officer Gallman further testified that Keith had admitted to touching Karen on the buttocks, “but he said it was an accident.”

Testifying in his own defense, Keith largely corroborated Karen's testimony leading up to the moment of contact. He explained that he had been sitting in his seat and “I had dropped my pencil and when I picked my pencil up, I accidentally hit [Karen's] butt, but I didn't squeeze it.” Keith stated that he was seated during the entire event, having come into contact with Karen during the process of leaning down to get his pencil.

At the close of the State's evidence, Keith moved to dismiss the charge of sexual battery. The district court denied that motion. Keith did not renew his motion at the close of all the evidence. He was subsequently adjudicated “delinquent with respect to the offense of misdemeanor sexual battery.” At the end of the hearing, he gave notice of appeal in open court. The court said nothing during the hearing regarding the charge of simple assault. In its written order, however, the court concluded that Keith was delinquent with regard to sexual battery and simple assault. Keith was determined to be a Level 1 offender and placed on 9 months of probation. He was also directed “to submit to a juvenile sex offender evaluation and [comply] with treatment recommendations.”

Discussion

On appeal, Keith argues that: (1) the district court erred by failing to dismiss the charge of sexual battery at the close of the State's evidence because that charge is not supported by sufficient evidence; (2) the district court should have dismissed the charge of simple assault as not based on sufficient evidence; (3) the district court failed to make sufficient findings of fact on both counts; and (4) he was denied effective assistance of counsel at the hearing. We vacate the court's adjudication of sexual battery as based on insufficient evidence, affirm the district court's adjudication of simple assault, and remand the case for insufficient findings of fact on the court's simple assault disposition. We do not reach the merits of Keith's final argument, ineffective assistance of counsel.

I. Sufficiency of the Evidence

A. Sexual Battery

Keith contends that the district court erred by denying his motion to dismiss the charge of sexual battery at the close of the State's evidence. Because Keith did not renew his motion to dismiss at the close of all the evidence, he requests that we review his appeal under Rule 2 of the North Carolina Rules of Appellate Procedure.

As a general rule, “a defendant [in a criminal case] may not make insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal unless a motion to dismiss the action ... is made at [the hearing].” N.C.R.App. P. 10(a). If the motion is made at the close of the State's evidence and denied by the court, the “defendant may not challenge on appeal the sufficiency of the evidence to prove the crime charged” if he “fail [ed] to move to dismiss the action ... at the close of all the evidence.” Id.; In re Hodge, 153 N.C.App. 102, 107, 568 S.E.2d 878, 881 (2002) ( “[I]f a defendant 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.”).

We may suspend this prohibition under Rule 2, however, “[t]o prevent manifest injustice to a party[.]” N.C.R.App. P. 2. “[W]hen this Court firmly concludes, as it has here, that the evidence is insufficient to sustain a criminal conviction ... it will not hesitate to reverse the conviction, sua sponte, in order to prevent manifest injustice to a party.” State v. Booher, 305 N.C. 554, 564, 290 S.E.2d 561, 566 (1982) (citations and quotation marks omitted); see also State v. Gayton–Barbosa, 197 N.C.App. 129, 134, 676 S.E.2d 586, 590 (2009) (“The Supreme Court and this Court have regularly invoked [Rule 2] in order to address challenges to the sufficiency of the evidence to support a conviction.”) (citation omitted). Because we conclude that the evidence against Keith is insufficient to support an adjudication of delinquency as to sexual battery, we review Keith's appeal in order to prevent manifest injustice despite his failure to move to dismiss that charge at the end of all the evidence.

“We review a ... 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 ... court must determine whether there is substantial evidence (1) of each essential element of the offense charged, ... and (2) of [the juvenile's] being the perpetrator of such offense.” In re Heil, 145 N.C.App. 24, 28, 550 S.E.2d 815, 819 (2001) (citation and quotation marks omitted). “The evidence must be such that, when it is viewed in the light most favorable to the State, it is 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). Here, Keith argues that the evidence offered by the State is insufficient to support an adjudication of delinquent with regard to sexual battery. We agree.

A juvenile can be found delinquent of sexual battery if, “for the purpose of sexual arousal, sexual gratification, or sexual abuse, [the juvenile] engages in sexual contact with another person ... [b]y force and against the will of the other person[.]” N.C. Gen.Stat. § 14–27.5A (2011). Keith argues that, in this case, there is not sufficient evidence to support a finding of either sexual contact or sexual purpose.

Sexual contact occurs when, among other things, a juvenile touches the sexual organ, anus, breast, groin, or buttocks of another person. N.C. Gen.Stat. § 14–27.1(5) (2011). “[T]ouching without penetration is sufficient to support the element of sexual contact necessary for the crime of sexual battery.” State v. Viera, 189 N.C.App. 514, 517, 658 S.E.2d 529, 531 (2008). Here, Karen informed the court that Keith “touched and grabbed [her].” At the end of Karen's testimony, the district court clarified that “when [she] said [Keith] touched her, [Karen] [made] a gesture with her hand that indicated a squeezing motion.” Later in the hearing, Keith rebutted Karen's testimony with his own statement, avowing that he “accidentally hit her butt, but [ ]didn't squeeze it.” The testimony of both parties is consistent with their previous statements to Officer Gallman, who confirmed Keith's prior statement that the touching was accidental. As both parties testified to the fact that Keith made contact with Karen's buttocks, we conclude that there was sufficient evidence of sexual contact.

On the question of sexual purpose, however, this Court has previously held—in the context of a charge of indecent liberties between children—that such a purpose does not exist “without some evidence of the child's maturity, intent, experience, or other factor indicating his purpose in acting [.]” In re T.S., 133 N.C.App. 272, 277, 515 S.E.2d 230, 233 (1999). Otherwise, “sexual ambitions must not be assigned to a child's actions.” Id. The element of purpose “may not be inferred solely from the act itself.” Id.;In re D.S., ––– N.C.App. ––––, 699 S.E.2d 141 (2010) (unpublished disposition), available at2010 WL 3464278 (applying the reasoning from In re T.S. to sexual battery).² Rather, factors 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 re T.C.S., 148 N.C.App. 297, 302–03, 558 S.E.2d 251, 254 (2002) (finding sufficient evidence to support the court's denial of the juvenile's motion to dismiss a charge of indecent liberties between children when the almost twelve-year-old juvenile was seen holding hands with a five-year-old victim while coming out of the woods; the juvenile appeared to put his hands on the victim's private parts while she was taking off her clothes). The mere act of touching is not enough to show purpose. See In re T.S., 133 N.C.App. at 277, 515 S.E.2d at 233.

When Karen was asked why she believed the contact was intentional, she responded: “[Y]ou can't touch and...