In re TCS

• Decision Date: 15 January 2002
• Docket Number: No. COA01-176.,COA01-176.
• Citation: 148 NC App. 297,558 S.E.2d 251
• Court: North Carolina Court of Appeals
• Parties: In the Matter of T.C.S., Juvenile.

558 S.E.2d 251

148 NC App. 297

In the Matter of T.C.S., Juvenile.

No. COA01-176.

Court of Appeals of North Carolina.

January 15, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth N. Strickland, for the State.

Law Offices of James R. Ansley, by James R. Ansley, Raleigh, and Robert J. Clements, Carrboro, for respondent-appellant.

WALKER, Judge.

On 26 July 1999, T.C.S., a juvenile, only one month from being twelve years old, was charged with second degree rape and taking indecent liberties between children involving A.H. who was five years old. The adjudication hearing began on 18 November 1999, and when it was not concluded that day, the juvenile court tentatively scheduled the hearing to continue on 22 December 1999. However, the hearing did not resume until 23 February 2000.

The State's evidence tended to show the following. On 26 July 1999, Martha Sullivan saw three children, two girls and a boy, walking by her house between 1:00 p.m. and 3:00 p.m. She identified A.H. and her younger sister as the two girls but did not know the identity of the boy. Ms. Sullivan testified that the boy was tall and slender, was wearing jeans and a hat, and appeared to be white. Ms. Sullivan testified that, as she observed these children, A.H. pulled down her shorts and underpants and laid down on the ground at what appeared to be the request of the boy. The boy's back was toward Ms. Sullivan, but she testified that "he had his hands down like, you know, on his privates. And then he got down on the ground on his knee and gotten on—getting on top of her.... Just like he had put [his hands] down on the front, you know, of his privates and whenever he got—and then he got on top of her." Ms. Sullivan then ran to the back door and "hollered at them." A.H. got up and put her clothes on. Then the three children walked away in the direction of the next trailer.

John Sullivan, Ms. Sullivan's husband, was also home that day and testified that, after being called to the back door by his wife, he saw A.H. on the ground and it appeared she did not have on any shorts or underpants. He then observed a boy who at first walked away but then turned around and came back for his bike. Mr. Sullivan testified that he could not identify the boy.

Candi Bowen testified that on the day in question, at around 1:00 p.m., after talking with her younger brother, she went looking for the juvenile to speak with him. After searching, Ms. Bowen found the juvenile and A.H. holding hands and coming from the direction of the woods and a trampoline on which the children played. A.H.'s sister was following behind them. When Ms. Bowen asked where they had been, the juvenile "smarted off at me like `none of your business.' "A.H. told Ms. Bowen that they had been on the trampoline. Ms. Bowen testified that "[A.H.] looked roughed up. She had branches in her hair. She didn't have no shoes on or no socks on. Her pants were on backwards. Her tags were sticking out the front of her shorts and was smiling, but you know, she looked kind of—her eyes were like big, like kind of real big kind of acting."

A.H. was called to testify, but after being non-responsive to examination by the judge and the prosecutor, the juvenile court determined A.H. was not in a position to testify and declared her unavailable for questioning.

A.H.'s mother testified that when she got home from work on the evening of 26 July 1999, her daughter was "shook up" and "looked rough." She testified that A.H. told her that "her private parts was hurting her." After talking on the telephone with the clinic, she took her daughter to Wake Medical Center the next day. The testimony of A.H.'s mother showed that she related to the clinic physician that A.H. had been playing in the woods when she and a boy went off together. A.H. pulled down her pants and laid down on the ground. The boy got on top of her and "stuck his wee wee in." Vivian Denise Everett, M.D., the Director of the Child Sexual Abuse Team (the Team) at Wake Medical Center, testified that she examined A.H. on 10 August 1999, pursuant to a referral to the Team. Although she personally had not interviewed A.H., Dr. Everett stated that a social worker on the Team had interviewed her and reported her findings to Dr. Everett. Over objection, Dr. Everett testified as to statements made by A.H. to the social worker who then related them to Dr. Everett in preparation for the medical examination. According to Dr. Everett, A.H. told the social worker, in response to leading questions and using anatomically correct dolls, that the juvenile took his pants off and got on top of A.H. with her pants and underwear off. The social worker asked whether the juvenile put "his wee wee" in A.H. and A.H. nodded her head. The social worker asked "if his wee wee went on the outside or if it went on the inside" of A.H.'s private parts and A.H. responded that it was on the inside.

Dr. Everett also testified that her physical examination of A.H. revealed the following in part:

that there was asymmetry, so that the hymen is shaped like a crescent and you would expect on either side of 12 o'clock to basically look the same, since the hymen would be a crescent. Instead, it was asymmetric, so the area at 11 o'clock was much higher than that at 1 o'clock.... My assessment was that the physical exam was consistent with the history that she gave, which was that of penile vaginal penetration.

When the hearing resumed on 23 February 2000, Terry Gallagher of the Cary Police Department testified that she twice interviewed A.H. Officer Gallagher was called to the scene at the time of the initial report on 26 July 1998 and returned one week later with a photographic lineup created by Seth Lambert, a juvenile investigator for the Cary Police Department. A.H. pointed out one of the photographs presented to her to be that of the perpetrator.

Officer Lambert testified that he responded to the original call from Ms. Harris. He had developed a photographic lineup from a yearbook which included a photograph of the juvenile. He testified that neither Mr. nor Ms. Sullivan could identify the perpetrator. He also interviewed the juvenile's father, who indicated that, on 26 July 1999, the juvenile had been with him all day and had been watching television in the living room.

At the close of the evidence, the juvenile successfully argued for the dismissal of the charge of second degree rape by reason of the failure of the evidence to support all of the elements of the charge. However, the juvenile court denied the motion to dismiss the charge of indecent liberties between children. The juvenile did not present any evidence.

On appeal, the juvenile argues that the juvenile court erred in failing to dismiss the charge of indecent liberties between children for insufficient evidence. To survive a motion to dismiss, the State must present "`substantial evidence of each element of the charged offenses sufficient to convince a rational trier of fact beyond a reasonable doubt of defendant's guilt.'" In re Lucas, 94 N.C.App. 442, 452-53, 380 S.E.2d 563, 569 (1989) (quoting State v. Griffin, 319 N.C. 429, 433, 355 S.E.2d 474, 476 (1987)). This may be from either direct or circumstantial evidence and taken in a light most favorable to the State. Id.

The juvenile was charged under the...