In re K.C.

742 S.E.2d 239, 226 N.C. App. 452, 2013 WL 1571067, 2013 N.C. App. LEXIS 385
Court of Appeals of North Carolina·Decided April 16, 2013·No. NO. COA12-1157·Published·Cited by 20 cases

Opinion

STEPHENS, Judge.

Factual Background and Procedural History

This matter arises out of the filing of juvenile petitions alleging the offenses of simple assault and sexual battery. The case was heard at [454] a session for juvenile hearings in District Court, Mecklenburg County, on 19 July 2012. Evidence offered at the hearing tended to show the following:

Juvenile Keith1 attends high school with the prosecuting witness, Karen, where they share classes. Both Keith and Karen are fifteen years old. The two typically sit far away from each other, but on 29 February 2012 they had a substitute teacher, and Keith was not sitting in his usual place. At one point during the day, Karen got up from her seat to shelve a book. Karen testified at the adjudicatory hearing that she bent over to place the book where it belonged when Keith “touched and grabbed [her].” Karen reacted by informing Keith: “Don’t do that.” Keith did not respond.

Karen went to the substitute teacher and reported the incident. The substitute teacher informed the school resource officer, Scott Gallman, who investigated the matter and took statements from Karen and Keith. At the hearing, Officer Gallman testified that Karen had seemed “a little upset” when she informed him that Keith “grabbed and squeezed [her buttocks].” Officer Gallman further testified that Keith had admitted to touching Karen on the buttocks, “but he said it was an accident.”

Testifying in his own defense, Keith largely corroborated Karen’s testimony leading up to the moment of contact. He explained that he had been sitting in his seat and “I had dropped my pencil and when I picked my pencil up, I accidentally hit [Karen’s] butt, but I didn’t squeeze it.” Keith stated that he was seated during the entire event, having come into contact with Karen during the process of leaning down to get his pencil.

At the close of the State’s evidence, Keith moved to dismiss the charge of sexual battery. The district court denied that motion. Keith did not renew his motion at the close of all the evidence. He was subsequently adjudicated “delinquent with respect to the offense of misdemeanor sexual battery.” At the end of the hearing, he gave notice of appeal in open court. The court said nothing during the hearing regarding the charge of simple assault. In its written order, however, the court concluded that Keith was delinquent with regard to sexual battery and simple assault. Keith was determined to be a Level 1 offender and placed on 9 months of probation. He was also directed “to submit to a juvenile sex offender evaluation and [comply] with treatment recommendations.”

[455] Discussion

On appeal, Keith argues that: (1) the district court erred by failing to dismiss the charge of sexual battery at the close of the State’s evidence because that charge is not supported by sufficient evidence; (2) the district court should have dismissed the charge of simple assault as not based on sufficient evidence; (3) the district court failed to make sufficient findings of fact on both counts; and (4) he was denied effective assistance of counsel at the hearing. We vacate the court’s adjudication of sexual battery as based on insufficient evidence, affirm the district court’s adjudication of simple assault, and remand the case for insufficient findings of fact on the court’s simple assault disposition. We do not reach the merits of Keith’s final argument, ineffective assistance of counsel.

I. Sufficiency of the Evidence

A. Sexual Battery

Keith contends that the district court erred by denying his motion to dismiss the charge of sexual battery at the close of the State’s evidence. Because Keith did not renew his motion to dismiss at the close of all the evidence, he requests that we review his appeal under Rule 2 of the North Carolina Rules of Appellate Procedure.

As a general rule, “a defendant [in a criminal case] may not make insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal unless a motion to dismiss the action . . . is made at [the hearing].” N.C.R. App. P. 10(a). If the motion is made at the close of the State’s evidence and denied by the court, the “defendant may not challenge on appeal the sufficiency of the evidence to prove the crime charged” if he “fail[ed] to move to dismiss the action... at the close of all the evidence.” Id.; In re Hodge, 153 N.C. App. 102, 107, 568 S.E.2d 878, 881 (2002) (“[I]f a defendant fails to move to dismiss the action... at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.”).

We may suspend this prohibition under Rule 2, however, “[t]o prevent manifest injustice to a party[.]” N.C.R. App. P. 2. “[W]hen this Court firmly concludes, as it has here, that the evidence is insufficient to sustain a criminal conviction ... it will not hesitate to reverse the conviction, sua sponte, in order to prevent manifest injustice to a party.” State v. Booher, 305 N.C. 554, 564, 290 S.E.2d 561, 566 (1982) (citations and quotation marks omitted); see also State v. Gayton-Barbosa, 197 N.C. App. 129, 134, 676 S.E.2d 586, 590 (2009) (“The Supreme Court and this [456] Court have regularly invoked [Rule 2] in order to address challenges to the sufficiency of the evidence to support a conviction.”) (citation omitted). Because we conclude that the evidence against Keith is insufficient to support an adjudication of delinquency as to sexual battery, we review Keith’s appeal in order to prevent manifest injustice despite his failure to move to dismiss that charge at the end of all the evidence.

“We review a . . . court’s denial of a [juvenile’s] motion to dismiss de novo.” In re S.M.S., 196 N.C. App. 170, 171, 675 S.E.2d 44, 45 (2009). “Where the juvenile moves to dismiss, the . . . court must determine whether there is substantial evidence (1) of each essential element of the offense charged,... and (2) of [the juvenile’s] being the perpetrator of such offense.” In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (2001) (citation and quotation marks omitted). “The evidence must be such that, when it is viewed in the light most favorable to the State, it is 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). Here, Keith argues that the evidence offered by the State is insufficient to support an adjudication of delinquent with regard to sexual battery. We agree.

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In re K.C., 742 S.E.2d 239, 226 N.C. App. 452, 2013 WL 1571067, 2013 N.C. App. LEXIS 385 (N.C. Ct. App. 2013).

742 S.E.2d 239 (In re K.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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