In re J.D., No. COA 18-1036

Docket NºNo. COA 18-1036
Citation267 N.C.App. 11, 832 S.E.2d 484
Case DateAugust 20, 2019
CourtCourt of Appeal of North Carolina (US)

267 N.C.App. 11
832 S.E.2d 484

In the MATTER OF: J.D.

No. COA 18-1036

Court of Appeals of North Carolina.

Filed: August 20, 2019


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.

ARROWOOD, Judge.

267 N.C.App. 13

Defendant J.D. ("Jeremy1 ") 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.

I. Background

This 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.

A 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

832 S.E.2d 487

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.

The 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

267 N.C.App. 14

sexually harmful behaviors were in the low to low moderate range. The court counselor recommended a level 2 disposition

Before 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.

II. Discussion

Defendant 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.

1. Second-Degree Sexual Exploitation of a Minor

The 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.

Whether 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) (citation omitted).

Second-degree 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

267 N.C.App. 15

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).

The 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 found that:

[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
832 S.E.2d 488
with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

Id . at 357, 255 S.E.2d at 395.

The 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.

Because 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.

2. First-Degree Forcible Sexual Offense

In 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

267 N.C.App. 16

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.

A "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).

At 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."

This 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.

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1 practice notes
  • In re J.D., No. 343A19
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 18, 2020
    ...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 exploitati......
1 cases
  • In re J.D., No. 343A19
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 18, 2020
    ...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 exploitati......

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