In re R.L.C.

• Citation: 643 S.E.2d 920
• Decision Date: 04 May 2007
• Docket Number: No. 531A06.,531A06.
• Court: United States State Supreme Court of North Carolina
• Parties: In the Matter of R.L.C.

643 S.E.2d 920

In the Matter of R.L.C.

No. 531A06.

Supreme Court of North Carolina.

May 4, 2007.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C.App. ___, 635 S.E.2d 1 (2006), finding no error in juvenile adjudication and disposition orders entered 15 February 2005 by Judge G. Wayne Abernathy in District Court, Alamance County. Heard in the Supreme Court 15 February 2007.

Roy Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, for the State.

Staples S. Hughes, Appellate Defender, and Constance E. Widenhouse, Assistant Appellate Defender, for respondent-appellant.

Michael Kent Curtis, Shannon Gilreath, Winston-Salem, and Robert N. Hunter, Jr., Greensboro, for the North Carolina Academy of Trial Lawyers and American Civil Liberties Union of North Carolina, amici curiae.

Theresa A. Newman, Durham, for Erwin Chemerinsky, amicus curiae.

BRADY, Justice.

In this case we determine whether a juvenile may be adjudicated delinquent based upon his violation of the crime against nature statute. We hold that he may and accordingly affirm the decision of the Court of Appeals.

FACTUAL BACKGROUND

The evidence presented at the juvenile trial tended to show that defendant R.L.C. and O.P.M. were dating in the spring and summer of 2003. At the time the two were dating, R.L.C. was fourteen years old and O.P.M. was twelve years old. During this relationship, the two juveniles had sexual intercourse and engaged in two separate incidents of fellatio in or around July and August of 2003 in the back seat of O.P.M.'s mother's sport utility vehicle, which was parked in a bowling alley parking lot. O.P.M.'s parents were inside bowling at the time of the sexual activity.

Over a year after the juveniles' relationship ended, Alamance County Sheriff's Deputy Bobby Baldwin investigated a fight between O.P.M. and another student at her school. During this investigation, O.P.M. informed him of her sexual conduct with R.L.C. Deputy Baldwin questioned R.L.C., who admitted O.P.M. had performed fellatio on him "two [or] three times."

PROCEDURAL BACKGROUND

On 9 November 2004, three separate juvenile petitions were filed alleging that R.L.C. was delinquent for committing a "crime against nature with [O.P.M]" in violation of N.C.G.S. § 14-177. The case was heard at the 20 December 2004 and 6 January 2005 juvenile sessions of Alamance County District Court. After hearing evidence and arguments of counsel, the trial court dismissed one of the juvenile petitions due to insufficient evidence and entered a Juvenile Adjudication Order finding R.L.C. delinquent. The trial court entered a Disposition Order imposing a sentence of six months of unsupervised probation and also ordered that R.L.C. not have any contact with O.P.M. R.L.C. appealed both orders to the Court of Appeals which, in a divided opinion, found no error in the trial court's actions. Based upon the existence of a dissent in the Court of Appeals, R.L.C. appealed as of right to this Court.

THE RECORD ON APPEAL AND TRANSCRIPT

We note at the outset that R.L.C.'s full name appears in the record in at least three places, despite the requirements of Rule of Appellate Procedure 3. Additionally, it appears that the transcript was not submitted to the Court in a signed, sealed envelope as required by Rule of Appellate Procedure 9(c). Accordingly, we have issued an order ex mero motu sealing the transcript in accordance with Rule 9 and amending the record on appeal to complete the redaction of the information that identifies the juveniles.

ISSUES PRESENTED

Broadly speaking, the issue before us is whether R.L.C. may be adjudicated delinquent based upon his violation of the crime against nature statute. In determining which specific issues are properly before the Court in an appeal based upon a dissent, we must consider whether the issue was raised at the trial court and the Court of Appeals, whether the error was properly assigned in the record on appeal, and whether the issue was a point of dispute set out in the dissenting opinion of the Court of Appeals. See N.C. R.App. P. 10(a) (stating that "the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this [rule]"); N.C. R.App. P. 16(b) ("Where the sole ground of the appeal of right is the existence of a dissent in the Court of Appeals, review by the Supreme Court is limited to a consideration of those questions which are [] specifically set out in the dissenting opinion as the basis for that dissent. . . ."); State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 518-19 (1988) (stating that constitutional issues raised for the first time on appeal should not be reviewed on the merits). Moreover, to be properly presented, the issue must be stated in the notice of appeal and properly argued and presented in the appellant's new brief. See N.C. R.App. P. 16(b). Otherwise, unless an alternative form of review has been allowed by this Court, such as through a petition for discretionary review or a petition for writ of certiorari, only those issues presented in accordance with the rules referenced above are properly before the Court.

Turning now to the specific issues presented in this case, amici encourage us to invalidate R.L.C.'s adjudication based upon either equal protection concerns or because the North Carolina crime against nature statute is facially invalid after the decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). However, these issues were not argued at trial, argued at the Court of Appeals, specifically set out in the dissenting opinion in the Court of Appeals, presented in the notice of appeal, contained in the assignments of error, or argued in R.L.C.'s new brief before this Court. Accordingly, we decline to address these issues or express any opinion on their merits.

The juvenile R.L.C. has interwoven his argument that normal rules of statutory construction would require us to vacate his adjudication with his argument that if those rules are not followed, the crime against nature statute is unconstitutional as applied. These arguments have been commingled to the point that they cannot easily be separated. The same could be said for the dissenting opinion in the Court of Appeals. The dissent's conclusion asserts: "In sum, I would hold that the General Assembly did not intend that the conduct of respondent and O.P.M. be subject to criminal regulation." In re R.L.C., ___ N.C.App. ___, ___, 635 S.E.2d 1, 8 (Elmore, J., dissenting). From that statement we would be inclined to rule only upon matters of statutory construction. However, in the preceding paragraph the dissent states: "[W]e disagree with the State that all conduct between minors may be regulated by the crime against nature statute, without regard to the circumstances. . . . [O]ur General Assembly has dictated that there is no legitimate state interest in the regulation of minors less than three years apart in age, absent the use of force." Id. at ___, 635 S.E.2d at 8 (Elmore, J., dissenting). This language, while speaking of legislative intent, is also fraught with substantive due process connotations such as "legitimate state interest."

Whether it would be unconstitutional to apply the crime against nature statute to R.L.C. without first imposing some sort of age separation requirement was raised at the trial level, was properly assigned as error, was argued before the Court of Appeals, and has been presented in new briefs before this Court. However, it is unclear from reading the dissenting opinion in the Court of Appeals that the issue is a "basis for that dissent." N.C. R.App. P. 16(b). Because the issue of statutory construction has been intertwined with the argument that a contrary reading of the statute as applied to R.L.C. violates due process, we will address both of these issues separately. We note that addressing the as-applied constitutional issue would not prejudice the State, as the State argued this issue in the lower tribunals and has addressed it on the merits in the State's New Brief as an alternative to its assertion that the issue is procedurally barred.

Accordingly, we determine that the issues properly before the Court are: (1) whether principles of statutory construction prohibit adjudicating R.L.C. as delinquent; and (2) whether failing to follow the dissent's statutory construction renders the crime against nature statute unconstitutional as applied to R.L.C.

ANALYSIS

I. STATUTORY CONSTRUCTION

R.L.C. contends that this Court should reverse the Court of Appeals because "[c]ontrolling principles of statutory construction" require a reviewing court to analyze the crime against nature statute in pari materia with other statutes that criminalize similar activity such as the statutory rape, statutory sex offense, and indecent liberties between minors statutes. The crux of R.L.C.'s argument is because these statutes include some measure of age differential between the actors involved among their elements, the General Assembly must not have intended any minor be convicted of any consensual sexual crime unless some minimum age differential exists. Therefore, R.L.C.'s position is he may not be adjudicated delinquent based upon his violation of the crime against nature statute because he is not more than three years older than O.P.M.

This Court determines matters of statutory construction as follows:

When the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required. See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment...