In re J.D., 376 N.C. 148

Background

On Nov. 18, 2016, 15-year-old Jeremy engaged in nonconsensual sexual contact with 13-year-old Zane while a 13-year-old, Dan, recorded 21 seconds of the incident; the video does not show the start or end of the encounter.
Zane testified Jeremy touched his butt but explicitly denied any anal penetration; Jeremy similarly denied penetration to police. Dan and Carl gave out-of-court statements describing “sex” and that Dan recorded and distributed the video.
Juvenile petitions charged Jeremy with second-degree sexual exploitation of a minor (for the recording, prosecuted on an acting-in-concert theory), first-degree forcible sexual offense (alleged anal intercourse), and a separate misdemeanor attempted larceny to which Jeremy entered a transcript of admission.
The trial court denied motions to dismiss, adjudicated Jeremy delinquent on the two sexual charges, accepted the attempted-larceny admission, and imposed a Level 3 commitment. The Court of Appeals reversed the adjudications and the acceptance of the larceny admission in a divided opinion.
The North Carolina Supreme Court: (1) vacated the adjudications for second-degree sexual exploitation and first-degree forcible sexual offense (insufficient evidence); (2) affirmed the trial court’s acceptance of Jeremy’s attempted-larceny admission; and (3) vacated the Level 3 disposition but declined to remand for a new disposition because juvenile-court jurisdiction ended when Jeremy turned 18.

Issues

Issue	State's Argument	Jeremy's Argument	Held
Sufficiency for second-degree sexual exploitation (acting-in-concert)	Dan recorded; Jeremy’s conduct (e.g., alleged thumbs-up, presence) shows approval/participation in production or distribution	Dan did the recording; Jeremy told Dan not to record and there was no evidence of a common plan	Insufficient evidence of acting in concert to support charge; adjudication vacated
Sufficiency for first-degree forcible sexual offense (penetration)	Video and statements supply circumstantial corroboration of anal penetration	Victim explicitly denied penetration; no physiological/demonstrative corroboration	Victim’s denial plus lack of corroborative evidence defeats State’s case; adjudication vacated
Sufficiency of factual basis for acceptance of transcript of admission to attempted larceny	Prosecutor recited that witnesses saw three youths after a bike theft, Jeremy was found with bolt cutters in his backpack; coupled with defense counsel’s statements	Court of Appeals said the record lacked proof of intent/acting in concert	Supreme Court: factual basis (presence + bolt cutters + defense counsel’s admission) was adequate; admission properly accepted
Disposition and remand/jurisdiction	Trial court can re-sentence/remand if adjudications vacated	Juvenile requested release and challenged Level 3; appellee sought dismissal of appeal when he turned 18	Level 3 disposition vacated, but juvenile court lost jurisdiction when Jeremy turned 18, so no remand for new disposition is possible

Key Cases Cited

State v. Fletcher, 370 N.C. 313 (2017) (explains production/distribution element in child-pornography statutes)
State v. Barnes, 345 N.C. 184 (1997) (acting-in-concert/principal liability principles)
State v. Joyner, 297 N.C. 349 (1979) (definition and proof of acting in concert)
State v. Sanders, 288 N.C. 285 (1975) (mere presence or silent approval insufficient for guilt)
State v. Birchfield, 235 N.C. 410 (1952) (approval alone does not establish concerted criminal participation)
State v. Hicks, 319 N.C. 84 (1987) (victim’s ambiguous or nonconfirming testimony on penetration requires corroboration)
State v. Robinson, 310 N.C. 530 (1984) (lack of victim testimony to penetration requires corroborative evidence for rape/penetration charges)
State v. Sinclair, 301 N.C. 193 (1980) (plea/admission requires substantive factual basis independent of plea)
State v. Agnew, 361 N.C. 333 (2007) (court must make an independent judicial determination of factual basis for plea)
In re T.T.E., 372 N.C. 413 (2019) (standard of review for motions to dismiss for insufficiency of the evidence)
State v. Golder, 374 N.C. 238 (2020) (preservation rule: a timely motion to dismiss preserves all sufficiency issues on appeal)