In re J.D.

• Decision Date: 18 December 2020
• Docket Number: No. 343A19,343A19
• Citation: 852 S.E.2d 36,376 N.C. 148
• Parties: In the MATTER OF: J.D.
• Court: North Carolina Supreme Court

376 N.C. 148

852 S.E.2d 36

In the MATTER OF: J.D.

No. 343A19

Supreme Court of North Carolina.

Filed December 18, 2020

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

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

BEASLEY, Chief Justice.

This Court is tasked with determining the sufficiency of evidence needed to survive a motion to dismiss a juvenile petition alleging that the juvenile committed second-degree sexual exploitation of a minor under an acting in concert theory and a juvenile petition alleging that the juvenile committed first-degree forcible sexual offense when the victim denies that penetration occurred. We must also determine the sufficiency of evidence required before a trial court can accept a juvenile's transcript of admission. We hold that the trial court erred by denying the juvenile's motions to dismiss second-degree sexual exploitation of a minor and first-degree forcible sexual offense but did not err by accepting the juvenile's admission of attempted larceny.¹ This holding also requires us to vacate the Level 3 disposition and commitment order entered by the trial court. However, we cannot remand the matter for the entry of a new disposition order because the trial court's jurisdiction terminated when the juvenile turned eighteen years old.

Factual and Procedural Background

This case stems from an incident at Jeremy's² house on 18 November 2016. Zane, age 13, spent the night with Jeremy, age 15, and Jeremy's cousins, Carl, age 12, and Dan, age 13. Jeremy's parents were home and the juveniles spent the evening playing outside and playing video games. At some point during the night Jeremy engaged in sexual contact against Zane's will, and Dan recorded a portion of the incident.

The video recording is twenty-one seconds long and does not show how the incident began or ended. During the entire recording Jeremy and Zane both have their pants pulled down and Zane is bent over a piece of furniture with Jeremy behind him performing a thrusting motion. Jeremy can be heard saying "you better not be recording this" and "[Dan] do not record this." Jeremy continued the thrusting motion and began to pull on Zane's hair, and Zane told Jeremy to "let go of [his] hair." Towards the end of the recording, Jeremy reaches for Zane's shirt with his left hand and lifts his left thumb from his fist. It is unclear whether he is giving a "thumbs up" or simply made a motion while grabbing Zane's shirt.

Dan sent the video to two people, and one of Zane's friends told Zane's father about the video. Zane was unaware the video was circulated to others, and Zane's mother called law enforcement once Zane's family became aware of the video. Law enforcement officers interviewed Jeremy, Dan, and Carl. Jeremy indicated that whatever occurred between him and Zane was consensual. He admitted that his penis touched Zane's "butt" but denied that any penetration occurred. Dan indicated that Jeremy and Zane were "doing it" and having "sex." He stated that nobody asked him to record the video and admitted to sending the video to two other people. Carl told law enforcement that he was in the room but covered his eyes once Jeremy's and Zane's pants were pulled down. He indicated that he told them to stop and it seemed like they were having sex.

Juvenile petitions were filed against Jeremy for second-degree sexual exploitation of a minor and first-degree forcible sexual offense. Petitions were also filed against Carl and Dan. While the initial petitions were pending, a separate petition was filed against Jeremy for misdemeanor larceny.

The adjudicatory hearing for the petitions against Jeremy, Dan, and Carl for the incident on 18 November 2016 were held jointly without objection on 4 October 2017 and 1 November 2017. At the hearing, Zane testified that after playing video games he went to sleep and "woke up and [Jeremy] was behind me" and he "felt somebody holding [his] legs." He testified that his pants were pulled down and Jeremy was pulling on his hair. He "felt [Jeremy's] privates on [his] butt" but testified he did not feel Jeremy "go into [his] butt."

During Zane's testimony, the State introduced and played the video recording of the incident. The State also introduced and admitted, without objection, recordings of the statements made by Dan and Carl to law enforcement. Neither Dan nor Carl testified during the adjudicatory hearing.

At the close of the State's evidence, all juveniles made a motion to dismiss, which the trial court denied. These motions were renewed at the close of all of the evidence and were again denied by the trial court.

The trial court adjudicated Jeremy and Dan delinquent for the offenses of first-degree forcible sexual offense and second-degree sexual exploitation of a minor. It also found Dan delinquent for the offense of felony disseminating obscenity. The disposition hearing was continued until 24 January 2018 so Jeremy could have a psychosexual assessment at Children's Hope Alliance to identify Jeremy's sex-specific risk factors and determine treatment recommendations to be considered by the trial court at the disposition hearing.

At the dispositional hearing, the State asked for a Level 3 disposition and Jeremy's defense counsel asked for a Level 2 disposition. Jeremy's court counselor recommended a Level 2 disposition, and both Children's Hope Alliance and the court counselor recommended that Jeremy complete specialized sex-offender specific treatment.

Jeremy also entered a transcript of admission for misdemeanor attempted larceny. After Jeremy entered his transcript of admission on the record, the State gave the following factual basis:

The date of offense on this matter is April 7th, 2017. [The victim] reported that his bicycle had been stolen. Police came, and witnesses said that two black males, giving descriptions, had taken the bike by using bolt cutters to cut the chain that secured it.

And shortly after that, the—the responding officer saw three folks somewhat matching that description riding two bicycles. So, two were on one bicycle, one was on the other bicycle, kind of off on his own. That one off on his own on a bicycle turned out to be [Jeremy]. He's the only one who stopped and was willing to talk with the officer.

He said that he had nothing to do with the theft of the bicycle, gave the name of the person who did, and he did admit to having the bolt cutters in his back pack.

Jeremy's defense counsel told the trial court that Jeremy was with the "wrong people" at the "wrong time" but had "accepted responsibility" for his role.

After accepting Jeremy's admission, the trial court entered a Level 3 disposition and committed Jeremy to a youth development center based on his adjudication for first-degree forcible sexual offense. On 14 February 2018 Jeremy filed a notice of appeal and requested release pending appeal. The trial court held a hearing on 20 February 2018 and denied Jeremy's request for release pending appeal.

On appeal, Jeremy argued that (1) there was insufficient evidence to support a finding that Jeremy committed second-degree sexual exploitation of a minor; (2) there was insufficient evidence to support a finding that Jeremy committed first-degree forcible sexual offense; (3) the trial court violated his right to confront his accusers by allowing the admission of out-of-court statements by Jeremy's codefendants; (4) the trial court erred by considering out-of-court statements as substantive evidence; (5) the trial court erred by failing to make written findings showing it considered all five factors under N.C.G.S. § 7B-2501 prior to entering its disposition order; and (6) the trial court erred by finding compelling reasons why Jeremy should remain in custody while his appeal is pending.

On 20 August 2019 the Court of Appeals issued a divided opinion reversing and remanding the adjudication and disposition orders of the trial court. In re J.D., 267 N.C. App. 11, 832 S.E.2d 484 (2019). The majority held that the trial court erred by denying Jeremy's motion to dismiss his second-degree sexual exploitation of a minor charge because he told Dan to stop recording and there was no evidence that Jeremy wanted the recording to be made. Id. at 15, 832 S.E.2d 484. Because there was no evidence that Jeremy "took an active role in the production or distribution of the video," the trial court erred by denying his motion to dismiss the second-degree sexual exploitation of a minor charge. Id.

The majority went on to conclude that there was not substantial evidence of anal penetration and that because Zane testified that no penetration occurred and the video did not show a "sexual act," the trial court erred by denying Jeremy's motion to dismiss the charge of first-degree forcible sexual offense. Id. at 16–17, 832 S.E.2d 484.

The majority further concluded that the trial court erred by accepting the admission to attempted larceny because "[t]here was not a showing of the requisite intent that defendant intended to steal, or assist others in stealing, the bicycle." Id. at 17, 832 S.E.2d 484. Because the State failed to present sufficient evidence that Jeremy attempted to steal the bicycle, the trial court erred in accepting Jeremy's admission of attempted larceny. Id.

The majority next addressed the statements made by Jeremy's codefendants who did not testify at the adjudicatory hearing. The majority concluded that these statements violated Jeremy's constitutional right to confront and cross-examine witnesses and were ultimately prejudicial to Jeremy's defense, that the evidence at trial was not overwhelming, and that "the State has failed to prove this testimony was harmless beyond a reasonable doubt." Id. at 18–19, 832 S.E.2d 484.

Although the majority held that the adjudications must be reversed, it nonetheless addressed disposition errors made by the trial court. Id. at...