In re Clapp, No. COA99-290.

• Decision Date: 21 March 2000
• Docket Number: No. COA99-290.
• Citation: 137 NC App. 14,526 S.E.2d 689
• Parties: In the Matter of Jonathon Matthew CLAPP.
• Court: North Carolina Court of Appeals

526 S.E.2d 689

137 NC App. 14

In the Matter of Jonathon Matthew CLAPP.

No. COA99-290.

Court of Appeals of North Carolina.

March 21, 2000.

Smith Helms Mulliss & Moore, L.L.P., by Amie Flowers Carmack, Greensboro, for respondent-appellant Jonathon Matthew Clapp.

Attorney General Michael F. Easley, by Assistant Attorney General Elizabeth J. Weese, for the State. WALKER, Judge.

On 25 November 1997, Jonathon Matthew Clapp (the juvenile) was adjudicated to be delinquent for committing a second degree sexual offense. After a dispositional hearing, the juvenile was placed on probation for 12 months with certain terms and conditions.

The State's evidence at the adjudicatory hearing tended to establish the following: On 28 July 1997, the juvenile, age 11, was playing at the home of M.H., age 3. The juvenile had been playing in the bedroom with M.H. and her brother, J.H., age 7, when the juvenile's mother called at approximately 5:00 p.m. and requested that he come home. Angel Delzo, M.H.'s mother, testified that as she went towards the bedroom to tell the juvenile to go home, he "came out of the bedroom really quick" with "wild" hair and "ran out the door really quick." Then, according to Ms. Delzo, M.H. "came out of the bedroom pulling at her crotch" or "pulling at her panties." M.H. stated that the juvenile "made her take her clothes off" and "was licking her privates." Ms. Delzo further testified that M.H. was referring to her vagina as her "privates."

Ms. Delzo called the juvenile's mother and asked her to bring the juvenile back to her house. Ms. Delzo testified that after the juvenile arrived with his mother, she asked him why he did it and he responded that he did not know. When the juvenile's mother asked him the same question, he stated that he had spent the night with a friend, who had him watch Playboy, and he learned this from the Playboy channel. Ms. Delzo called the police, and Detective Delores Jackson responded to the call that day and interviewed Ms. Delzo, J.H. and M.H. at the hospital. The following day, Detective Jackson interviewed the juvenile in the presence of his parents.

At the adjudicatory hearing, after being sworn individually, M.H., who was then age 4, testified that she had been playing in her bedroom with J.H. and the juvenile, when the juvenile told her to take off all of her clothes. She further testified that after she took off her clothes, the juvenile started "licking my privates" with "his tongue." M.H. then explained that her "private parts" are between her legs. After pointing to her "belly button," M.H. testified that her belly button is not her "private parts."

J.H. testified that he, M.H., and the juvenile were in the bedroom when the juvenile "told [M.H.] to get in the closet and take off her clothes" and then "asked her to get on the bed." The juvenile then, according to J.H., started "licking her privates," the area "between your legs." J.H. testified that, during this time, the juvenile "was holding her down" with his "hands on [her] arms" and "his feet on her legs." J.H. further testified that the juvenile threatened to hit him if he did not participate, after which J.H. pretended to lick M.H.

John Robert White, a neighbor, testified that he had a conversation with the juvenile on 28 July 1997, while waiting for the police to arrive and that the juvenile admitted that he had kissed M.H. and that "he had her take her clothes off." Mr. White further testified that the juvenile admitted that he knew it was wrong to do this.

Detective Jackson testified that she interviewed M.H. at the hospital. M.H. informed her that the juvenile had licked her private parts while they were playing in the bedroom that day. M.H. further explained to Detective Jackson that they had been playing a game where she was pretending to be the wife of J.H. and of the juvenile and that at one point during the incident, she had taken off her dress and her panties. Additionally, Detective Jackson was permitted to testify for corroborative purposes that M.H. informed her examining doctor that the juvenile had licked her private parts.

Detective Jackson further testified that the juvenile gave her a statement, admitting that he "started talking to [J.H.] about sex" and was "telling [him] about how a man and a woman get naked and kiss and have sex." The juvenile also admitted that he had kissed M.H. on the belly button while she was laying on the bed and that at this time, M.H. had her dress on but not her panties. The juvenile informed Detective Jackson that he then went in the closet with M.H. and kissed her on the cheek. He and M.H. then came out of the closet, at which time M.H. took off her dress so she could put on another dress and she was naked because she could not find her panties.

The juvenile testified that on this occasion he had kissed M.H. on the belly button and on the cheek. He denied asking M.H. to take her clothes off and denied touching her private parts.

After hearing the evidence and the arguments of counsel, the juvenile court found facts which were proven beyond a reasonable doubt, including the following:

6. That on that occasion the children were playing in a bedroom; that [M.H.] ended up with her panties being removed; that she stated that the juvenile respondent licked her private parts, indicating that her private parts [were] between her legs.

7. That the juvenile respondent indicated that he did kiss the victim in this case on the cheek and on the belly button; that she had on no panties at one time; that he found her panties and gave them back to her and that the kissing and the contact between the victim and the juvenile respondent was initiated and brought about as a result of the 7 year old brother [J.H.] suggesting that they should kiss the victim.

8. That the victim in this case told her mother that the juvenile respondent licked her private parts and told the same story consistently to include here in the courtroom this day.

9. That the juvenile respondent indicated that after he left the home where the victim was, and he heard the phone ring in his house, that he thought it might be the victim's mother calling and when asked why he thought it might be the victim's mother calling, he said he did not know.

Based on these findings, the juvenile court concluded that the juvenile is delinquent, as defined by N.C. Gen.Stat. § 7A-517(12) (repealed effective 1 July 1999), for having committed a second degree sexual offense in violation of N.C. Gen.Stat. § 14-27.5, and is in need of the protective supervision of the court.

The dispositional hearing was held on 6 April 1998, and the juvenile was represented by a different attorney. The juvenile court, after reviewing the juvenile's file and information presented by the parties, the prosecutor, the court counselor, and the juvenile's attorney, placed the juvenile on probation for 12 months with certain terms and conditions, including the requirement that he obtain a sex offender assessment and complete any course of treatment that is recommended based on that evaluation.

The juvenile sets forth the following assignments of error: (1) the juvenile court erred in adjudicating him delinquent since there was insufficient evidence of the element of force; (2) the juvenile court erred in admitting the testimony of four-year-old M.H. since she was incompetent to testify; (3) the juvenile court did not have sufficient social, medical, psychiatric, psychological, and educational information regarding the juvenile to make its dispositional order; and (4) the juvenile's attorneys provided ineffective assistance of counsel at both the adjudicatory and dispositional hearings.

The juvenile first contends that the juvenile court erred in adjudicating him delinquent since there was insufficient evidence of force. The State counters that the juvenile is precluded from raising this issue on appeal since he did not move to dismiss the petition at the close of the evidence during the adjudicatory hearing. This Court, in In re Davis, 126 N.C.App. 64, 483 S.E.2d 440 (1997), found that the respondent juveniles were precluded from challenging the sufficiency of the evidence presented during a juvenile delinquency proceeding since they failed to move for a dismissal of the petitions at trial pursuant to N.C.R.App. 10(b)(3). See also State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988). Here, since the juvenile failed to move for a dismissal at the close of the evidence, he is precluded from raising this issue on appeal.

The juvenile next assigns that the juvenile court committed plain error in admitting M.H.'s testimony since she was only four-years-old and was incompetent to testify. Specifically, the juvenile argues that M.H. did not clearly communicate her understanding of the obligation to tell the truth or illustrate that she had the capacity to understand and relate facts since she provided inaudible responses to questions.

The general rule is that every person is competent to be a witness unless the trial court determines that he or she is disqualified under the Rules of Evidence. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988). Rule 601(b) provides: "A person is disqualified to testify as a witness when the court determines that he is ... (1) incapable of expressing himself concerning the matter as to be understood ..., or (2) incapable of understanding the duty of a witness to tell the truth." N.C. Gen.Stat. § 8C-1, Rule 601(b) (Cum.Supp.1998). The issue of competency of a witness rests in the sound discretion of the trial court based upon its observation of the witness. State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426 (1987). A decision will not be disturbed on appeal unless there is a showing that the trial court's ruling as to competency could not have been the result of a reasoned decision. Id. This Court, in In re Arthur, 27 N.C.App. 227, 218 S.E.2d 869 (1975), reversed on other grounds, 291 N.C. 640, 231 S.E.2d...