In re Lineberry

• Decision Date: 03 December 2002
• Docket Number: No. COA02-113.,COA02-113.
• Citation: 572 S.E.2d 229,154 NC App. 246
• Parties: In the Matter of Joseph D. LINEBERRY.
• Court: North Carolina Court of Appeals

572 S.E.2d 229

154 NC App. 246

In the Matter of Joseph D. LINEBERRY.

No. COA02-113.

Court of Appeals of North Carolina.

December 3, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

Richard E. Jester, Louisburg, for juvenile appellant.

TIMMONS-GOODSON, Judge.

Joseph D. Lineberry ("juvenile") appeals from orders of the trial court adjudicating juvenile to be delinquent and placing the custody of juvenile with the Youth Development Center. For the reasons stated herein, we affirm the order of the trial court adjudicating juvenile delinquent, but we vacate the order continuing custody of juvenile pending appeal, and we remand for proceedings consistent with this opinion.

The pertinent facts of this appeal are as follows: On 6 June 2000, the State filed two petitions seeking delinquency status for juvenile with the Rowan County District Court. The petitions accused juvenile of committing a sexual offense in the second degree and of taking indecent liberties with a fellow minor.

The matter came before the trial court on 23 June 2000, at which time the State presented evidence tending to show the following: On 5 February 2000, juvenile's ten-year-old cousin, "B," spent the night at juvenile's residence. Juvenile was fourteen years old at the time. "B" testified that, after he had gone to sleep in juvenile's bedroom, juvenile removed "B's" clothing, placed duct tape over his mouth, held him down on the bed, and "put his privates ... in [B's] butt." "B" affirmed that juvenile's actions were painful, but that he was unable to scream due to the duct tape over his mouth. "B" stated that he was approximately four feet, five inches tall at the time and weighed eighty-five pounds. Juvenile testified that he was six feet, two inches tall and weighed approximately one hundred and ninety pounds. According to "B," juvenile warned him that "if [he] told anybody he'd hurt me." Despite the warning, "B" attempted to inform his aunt, juvenile's mother, of the assault immediately following his encounter with juvenile. "B" stated that he approached his aunt in the living room, where she was watching television, but that before he could tell her what had happened, she ordered him to "get back in the room." "B" returned to juvenile's room and went to sleep. When "B" returned home the following day, he spoke of juvenile's actions with his brother, who immediately informed "B's" mother. "B" described his encounter with juvenile to his mother, who then took him to the hospital. "B's" mother testified that the examining physician found redness around "B's" anus, but no other physical manifestations of the assault.

Juvenile testified at the hearing and denied touching "B" in any type of sexual or otherwise improper manner. Juvenile's mother, Debbie Lineberry, also testified that she heard no unusual noises on the evening in question, and noted that there was no duct tape in the house.

At the conclusion of the evidence, the trial court found that juvenile had committed a second-degree sexual offense and indecent liberties with children. The trial court delayed disposition of the matter pending completion of a sex offender evaluation. On 8 December 2000, the trial court held a hearing concerning the evaluation of juvenile and entered an order adjudicating juvenile delinquent on 12 January 2001. The disposition order required juvenile to cooperate with an intensive nonresidential treatment program for sex offenders.

On 25 May 2001, the trial court held a hearing upon a motion for review based on evidence that juvenile was not attending the required outpatient therapy. On 31 May 2001, the trial court entered a disposition and commitment order, committing juvenile to the custody of the Youth Development Center in order to complete a sex offender treatment program. On 7 June 2001, the trial court convened to address the presumption that a juvenile be released from secure custody pending appeal. After hearing the evidence presented, the court concluded that it was in the best interests of juvenile and the State that juvenile remain in custody pending appeal. Juvenile appeals from these orders.

Juvenile presents five issues on appeal, arguing that the trial court erred by (1) finding juvenile to be delinquent; (2) displaying improper bias towards juvenile; (3) receiving testimony of a witness ex parte; and (4) committing juvenile to the Youth Development Center pending appeal. Juvenile also contends that (5) the procedures for the recordation of trial testimony and proceedings in the juvenile court were inadequate to protect juvenile's constitutional and statutory rights.

By his first assignment of error, juvenile contends that the State failed to present sufficient evidence of juvenile's delinquency, and that the trial court erred in finding otherwise. Juvenile made no motion, however, to dismiss the petition at the close of the evidence during the adjudicatory hearing. As such, he has waived his right on appeal to challenge the sufficiency of the evidence against him. See N.C.R.App. P. 10(b)(3) (2002); In re Clapp, 137 N.C.App. 14, 19, 526 S.E.2d 689, 693 (2000) (holding that, as the juvenile charged with delinquency on the grounds of committing a second-degree sexual offense failed to move for dismissal at the close of the evidence against him, he was precluded from challenging the sufficiency of the evidence on appeal). We therefore dismiss this assignment of error.

By his second assignment of error, juvenile submits that the trial judge demonstrated improper bias towards juvenile during the adjudicatory hearing. Specifically, juvenile contends that the trial judge displayed bias by interrupting juvenile's counsel six times during his closing argument. Juvenile asserts that the comments made by the trial judge during these interruptions revealed the judge's lack of impartiality. We disagree.

We note first that juvenile made no motion for the trial judge's recusal based on allegations of bias. Further, where a party moves for recusal, the burden is on the movant to "`demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.' " State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987) (quoting State v. Fie, 80 N.C.App. 577, 584, 343 S.E.2d 248, 254 (1986) (Martin, J., concurring)). We discern no improper bias by the trial judge in the instant case. The interruptions of the closing argument by the trial judge were inconsequential and reveal no predisposition by the judge towards either party. For example, when counsel for juvenile stated that he "hope[d] I don't irritate the Court or bore you with bringing out these things" the judge assured counsel that "You're not boring me[.]" In another example, counsel for juvenile stated that, "More than two weeks before Ms. Rushner asked to talk to him, passed[,]" at which point the judge correctly noted that the time period had in fact been ten days. Further, when counsel for juvenile stated that he "underst[ood] that the Court wishes to give credence to a victim that comes in and says this happened[,]" the judge assured counsel that, "I'm not here to give credence to anybody in particular. I'm here to weigh the credibility of the witnesses and the evidence." We fail to perceive how the trial court's direct affirmation that it was impartial could form the basis of a claim of partiality.

In another incident, counsel for juvenile argued that "B's" account of events was not credible, in that he did not immediately inform Mrs. Lineberry of juvenile's assault. Specifically, counsel called "B's" testimony into doubt by stating, "something like this has just occurred to him, that he did not go to the woman he had no reason to think would do anything but be his friend [,]" at which point the trial judge interrupted with the observation that Mrs. Lineberry was "[t]he perpetrator's mother."

In the context of the transcript, it is clear that the trial court characterized Mrs. Lineberry as "the perpetrator's mother" in order to direct counsel's attention to valid reasons for "B's" reluctance to confide in Mrs. Lineberry. Rather than exposing bias towards juvenile, the trial court's statement allowed counsel to refine his closing argument to the trial court by focusing more narrowly on "B's" credibility. The trial court's description of Mrs. Lineberry as "the perpetrator's mother" for identification purposes does not indicate that the trial court believed that juvenile committed the offense any more than defense counsel's identification of "B" as "the victim" indicates defense counsel's belief that "B" was in fact assaulted. Further interruptions by the trial court were similarly minor in nature and of no import. We therefore overrule juvenile's second assignment of error.

In his third assignment of error, juvenile asserts that the trial court violated his rights by receiving witness testimony outside of juvenile's presence. Under Article 1, section 23 of the North Carolina Constitution, a criminal defendant has the right to be present at every stage of his trial. See State v. Thomas, 134 N.C.App. 560, 570, 518 S.E.2d 222, 229,

appeal dismissed and disc. review denied, 351 N.C. 119, 541 S.E.2d 468 (1999). "Juveniles in delinquency proceedings are entitled to constitutional safeguards similar to those afforded adult criminal defendants." See In re Arthur, 27 N.C.App. 227, 229, 218 S.E.2d 869, 871 (1975),

reversed on other grounds, 291 N.C. 640, 231 S.E.2d 614 (1977). Constitutional error will not form the basis of reversal on appeal, however, where it is shown that such error was harmless beyond a reasonable doubt. See N.C. Gen.Stat. § 15A-1443(b) (2001); State v. Brogden, 329 N.C. 534, 541, 407 S.E.2d 158, 163 (1991).

During the 8 December 2000...