In re Griffin
| Decision Date | 03 February 2004 |
| Docket Number | No. COA02-1592.,COA02-1592. |
| Citation | 592 S.E.2d 12,162 NC App. 487 |
| Parties | In the Matter of Daniel Glenn GRIFFIN, Juvenile. |
| Court | North Carolina Court of Appeals |
Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State.
James L. Goldsmith, Jr., Hendersonville, for respondent-appellant.
Appellate Defender Staples Hughes and Assistant Appellate Defender Matthew D. Wunsche, amicus curiae.
Daniel Glenn Griffin (respondent) appeals from juvenile orders adjudicating him delinquent for commission of first-degree sexual offense in violation of N.C. Gen.Stat. § 14-27.4, and imposing a probationary sentence. Respondent brings forth a single assignment of error, asserting the trial court erred by denying his motion to suppress a statement respondent gave to the detective investigating this case. However, we do not address this issue because we conclude that a fatal variance existed between the juvenile petition filed herein and the evidence upon which respondent was adjudicated delinquent, in that (1) the petition alleged only sexual offense "by force against the victim's will;" (2) there was no evidence presented at the adjudicatory hearing which tended to show respondent committed forcible sexual offense; and (3) the hearing transcript indicates the trial court adjudicated respondent a juvenile first-degree sex offender based on the respective ages of respondent and the victim, despite the petition's failure to allege either the victim's age or the difference in age between respondent and the victim. This fatal variance between the juvenile petition and the evidence upon which respondent was adjudicated delinquent compels us to vacate the adjudication and disposition orders.
Evidence presented at the adjudicatory hearing tended to show that respondent, who was then twelve years old, respondent's sixteen-year-old half-brother, and the victim, then four, spent the weekend of 10 November 2000 at their grandmother's home. Respondent and the victim were cousins. The victim's mother testified that upon returning home, the victim told her that respondent "stuck his [penis] in [the victim's] butt." Respondent's half-brother testified that on the weekend in question he heard the victim say respondent had "licked [the victim's penis] and stuck [respondent's penis] in [the victim's] butt." Dr. Cindy Brown examined the victim on 13 November 2000 and noted redness around his anal opening, which she testified was "consistent with penetration" but could also be caused by poor hygiene. During an interview with Detective Preston Hunnicutt of the Buncombe County Sheriff's Department on 16 November 2000, respondent stated that he "licked [the victim] on his private" and "stuck [respondent's] private in [the victim's] butt."
On or about 1 October 2001, a juvenile petition was filed seeking adjudication of respondent as delinquent pursuant to N.C. Gen.Stat. § 7B-1501(7) (2003). The petition alleged only that on or about 10 November 2000, in Buncombe County, respondent, then 12 years old, "unlawfully, willfully, and feloniously engage[d] in a sex offense with [the victim] by force against the victim's will." At the adjudicatory hearing on 12 February 2002, after the close of the State's evidence, the following exchange took place between respondent's trial counsel, the prosecutor, and the trial court:
BY MR. WILLIAMS [Respondent's trial counsel]:
BY THE STATE:
Are you making a motion to amend the petition at this time?
BY THE STATE:
If that's the case, the State would amend just the language that said "with [the victim]." We would delete "by force against the victim's will" in terms of that case, Judge. But in terms of—in 70.2400, the amendment—the petition could be amended when the amendment does not change the nature of the offense alleged. (Inaudible) In this case it does not change the nature of the offense.
Nor does it seem to change the—I mean, he had notice all along that this is what the offense was concerning.
BY THE STATE:
BY MR. WILLIAMS:
.... There are two theories refined in [N.C. Gen.Stat. § 14-27.4]. One is—one concern is age. I'll point out in the petition there is nothing as to [the victim's] age representing [sic] therein.... There hasn't been one iota of evidence presented that any force was used.... The petition should [be] dismissed.
Are you telling me that until today when the case went for trial that you had no idea the victim was a four-year-old child and a cousin of your client? Is that what you're telling me? You keep talking about no notice.... So you're not—you're acknowledging that you had discovery and information about this case, that it involved a four-year-old child?
BY MR. WILLIAMS:
I'm just—I'm just asking the Court to take notice of the procedures.
And I'm asking you a question. Did you have notice that it involved a four-year-old child?
BY MR. WILLIAMS:
We certainly had cause to believe that it was a four-year-old child.
Did you have—did you receive any discovery from the State such as a C and E and your client's statement and statements made by other?
BY MR. WILLIAMS:
Yes.
BY THE STATE:
Thereafter, the trial court ruled from the bench as follows:
By written order entered the same day as the adjudicatory hearing, using the "Juvenile Adjudication Order" form promulgated by the Administrative Office of the Courts, the trial court made the following findings of fact and conclusions of law:
That the juvenile through his attorney denies the allegations alleged in the petition filed October 1, 2001. The Court finds after hearing the evidence presented that the juvenile did commit the act alleged and finds him to be delinquent by reason of felony sex offense in violation of G.S. 14-27.4, felony class B1.
From this order and the subsequent disposition order entered 14 June 2002, respondent appeals.
At the outset we note that respondent, by choosing to assign error only to the trial court's denial of his motion to suppress respondent's statement to Detective Hunnicutt, has not raised on appeal the issue of whether a fatal variance existed between the petition and the evidence upon which respondent was adjudicated delinquent. This issue has instead been presented by the Appellate Defender's amicus curiae brief, the filing of which was authorized by N.C.R.App. P. 28(i) and allowed by this Court's 10 October 2003 order. While N.C.R.App. P. 10(a) provides that "the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal," we are mindful that N.C.R.App. P. 2 vests this Court with the authority to "suspend or vary the requirements or provisions of any of [the Rules of Appellate Procedure] in a case pending before it upon application of a party or upon its own initiative" in order "[t]o prevent manifest injustice to a party[.]" In light of the potential for manifest injustice if the issue raised by the Appellate Defender's amicus brief—i.e., whether there existed a fatal variance between the...
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