In re: S.A.A.Â
251 N.C. App. 131
| N.C. Ct. App. | 2016|
Check Treatment IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-540
Filed: 20 December 2016
Orange & Alamance Counties,1 Nos. 15 JB 36, 121
IN THE MATTER OF: S.A.A.2
Appeal by Juvenile from orders entered 22 July 2015 by Judge Beverly Scarlett
in Orange County District Court and order entered 22 October 2015 by Judge
Kathryn W. Overby in Alamance County District Court. Heard in the Court of
Appeals 1 November 2016.
Attorney General Roy Cooper, by Assistant Attorney General Janelle E. Varley,
for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
Andrews, for Juvenile.
STEPHENS, Judge.
This appeal arises from Juvenile’s adjudication as delinquent based upon
petitions alleging he committed two counts each of simple assault and sexual battery
against two female schoolmates by draping his arms around the girls’ shoulders in
1As noted infra, this matter originated in Orange County District Court, where the adjudication order
was entered, but was transferred to Alamance County District Court in August 2015 where the
disposition order was entered.
2 Pursuant to North Carolina Rule of Appellate Procedure 3.1(a), we use initials or pseudonyms to
refer to all juveniles discussed in this opinion.
IN RE: S.A.A.
Opinion of the Court
order to smear a glowing liquid on them during an evening of Halloween trick-or-
treating. Because the State failed to introduce sufficient evidence that Juvenile
touched the tops of the girls’ breasts for a sexual purpose, we vacate the adjudication
of sexual battery and remand the case for entry of a new disposition order.
Factual and Procedural Background
On 20 April and 26 May 2015, the State filed petitions against Juvenile S.A.A.
(“Scott”), alleging that he had committed two counts each of sexual battery and simple
assault. On 21 July 2015, Scott appeared in Orange County Juvenile Court for an
adjudication hearing before the Honorable Beverly Scarlett, Judge presiding.
Evidence at the adjudication hearing tended to show the following: The petitions
arose from events that took place on Friday, 31 October 2014, in Chapel Hill. On that
Halloween evening, Scott, then a 13-year-old student at Culbreth Middle School, and
three of his male friends went to the Southern Village neighborhood where many
other Culbreth students were walking around, trick-or-treating, trying to scare each
other, and acting “crazy.” Scott was wearing a “crazy” costume, including a black
body suit, “LED light teeth,” and “glow gloves.” After one of his gloves “busted,” Scott
began wiping glowing green liquid from the glove3 on trees, signs, and “tons” of
people.
3 Some witnesses referred to the liquid as coming from Scott’s glove, while others referred to it as
coming from a “glow stick.”
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IN RE: S.A.A.
Opinion of the Court
Sixth-grade Culbreth students “Lauren” and “Melissa,” both then age eleven,
were trick-or-treating in Southern Village when they saw Scott walking with some
other boys. Melissa testified that Scott asked the girls if they wanted drugs. As
Lauren and Melissa walked away, Scott followed, coming up between the girls and
draping an arm over each girl’s shoulder. Lauren testified that Scott “rubbed this
green glow stick stuff on” her, leaving glowing liquid on her shirt near her collar bone.
Melissa testified that Scott reached his arm around her shoulder and “put this weird
green glowing stuff” on her arm and back, also touching her “boobs” over her
sweatshirt.
After the incident, Lauren and Melissa ran to the nearby home of Joe Rice, a
friend of their parents. Lauren was upset that the glowing liquid was on her clothes,
and Rice used wet paper towels to wipe off the material. Rice believed that “the glow
stick was the primary way that [the girls] had been harassed.” Lauren and Melissa
then “trick or treated some more,” returning to Lauren’s house between 8:30 and 9:00
p.m.
When Melissa’s father picked her up at about 10:00 p.m., she reported that a
boy with glow paint on his hands had tried to grab her “chest or boobs.” That night,
Lauren told her mother that something had happened, but did not provide many
details until the next morning, when she reported that a boy had “grabbed her from
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IN RE: S.A.A.
Opinion of the Court
behind with glow stick material . . . on his hand and touched her.” Neither Lauren’s
nor Melissa’s parents contacted the police over the weekend.
However, when Lauren and Melissa returned to school the following Monday,
they reported the incident to school resource officer Stan Newsome of the Chapel Hill
Police Department. Newsome called Lauren’s mother, explained that he would
prepare an incident report, and discussed possible charges against Scott. About a
month later when Newsome told Scott he was investigating an incident on Halloween,
Scott responded, “Oh, the thing with the glow in the dark stuff.” Newsome testified
that Scott admitted wiping the glowing liquid on Melissa’s and Lauren’s shoulders,
but denied touching their breasts.
At the adjudication hearing, Scott admitted putting the glow glove liquid on
trees, signs, and some people. When asked why he did so, Scott replied, “Because it
was Halloween.” Scott testified that he did not remember seeing Lauren and Melissa
on Halloween night. However, Scott’s friend “Brandon,” who had been trick-or-
treating with Scott, testified that Scott touched a girl’s shoulder with his leaking glow
glove, and the girl asked Scott to get away from her. According to Brandon, in
response, Scott apologized and walked away.
At the conclusion of the hearing, Judge Scarlett adjudicated Scott delinquent
on all charges. In August 2015, Judge Scarlett transferred the case to Alamance
County where Scott and his family had moved. On 10 September 2015, Scott
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IN RE: S.A.A.
Opinion of the Court
appeared in Alamance County District Court for a dispositional hearing before the
Honorable Kathryn W. Overby, Judge presiding. Judge Overby imposed a Level 1
sentence and ordered Scott to be placed on probation for 12 months. The disposition
order was based upon the most serious offense before the district court, to wit, sexual
battery. Scott gave notice of appeal at the hearing.
Discussion
On appeal, Scott argues that the district court erred by (1) denying his motion
to dismiss the sexual battery petitions, (2) adjudicating him delinquent on a theory
of sexual battery not stated in the petitions, (3) failing to make findings of fact in
support of its dispositional order, and (4) imposing probation and drug and alcohol
screenings. 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 entry of a new disposition order.
I. Motion to dismiss sexual battery petitions
Scott first contends that the district court should have allowed his motion to
dismiss the sexual battery petitions because the State failed to prove that Scott
touched the breasts of Lauren and Melissa for the purpose of sexual arousal or sexual
gratification. We agree.
As an initial matter, we address the State’s contention that Scott failed to
preserve this issue for appellate review. As Scott concedes, at the adjudication
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IN RE: S.A.A.
Opinion of the Court
hearing, his attorney moved to dismiss the sexual battery petitions at the close of the
State’s evidence, but failed to renew the motion after Scott presented his case. To
preserve an argument of error in a trial court’s denial of his motion to dismiss, a
juvenile must move to dismiss the petitions against him at the close of the State’s
evidence and again at the close of all the evidence. In re Hodge, 153 N.C. App. 102, 107,568 S.E.2d 878
, 881 (2002) (“[I]f a [juvenile] 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.” (citation and internal quotation marks
omitted)).
We may suspend th[e] prohibition under [Appellate] Rule
2, however, to prevent manifest injustice to a party. When
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.
In re K.C., 226 N.C. App. 452, 455,742 S.E.2d 239
, 242 (citations and internal quotation marks omitted), disc. review denied,367 N.C. 218
,747 S.E.2d 530
(2013).
We exercise our discretion under Rule 2 to review the merits of Scott’s appeal in order
to prevent manifest injustice because we conclude that the evidence against Scott is
insufficient to support an adjudication of delinquency as to sexual battery.
We review a court’s denial of a juvenile’s motion to dismiss
de novo. 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. The
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IN RE: S.A.A.
Opinion of the Court
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.
Id.(citations, internal quotation marks, ellipses, and brackets omitted). However, if the evidence raises only a suspicion that the juvenile committed the offense, the motion to dismiss should be granted. In re R.N.,206 N.C. App. 537
, 540,696 S.E.2d 898
, 901 (2010). “This is true even though the suspicion so aroused by the evidence is strong.” In re Vinson,298 N.C. 640
, 657,260 S.E.2d 591
, 602 (1979) (citation
omitted).
The elements of sexual battery are met if a juvenile, (1) for the purpose of
sexual arousal, sexual gratification, or sexual abuse, (2) engages in sexual contact
with another (3) by force and against the will of the other person. N.C. Gen. Stat. §
14-27.5A(a) (2013).4 In criminal cases involving adult defendants, the element of acting for the purpose of sexual arousal, sexual gratification, or sexual abuse may be inferred “from the very act itself[.]” In re T.S.,133 N.C. App. 272
, 275,515 S.E.2d 230
, 232 (citations omitted), disc. review denied,351 N.C. 105
,540 S.E.2d 751
(1999). “However, . . . intent to arouse or gratify sexual desires may [not] be inferred in children under the same standard used to infer sexual purpose to adults.” Id. at 276,515 S.E.2d at 233
. Rather, this Court has held that a sexual
purpose does not exist without some evidence of the child’s
maturity, intent, experience, or other factor indicating his
4 Section 14-27.5A was recodified as N.C. Gen. Stat. § 14-27.33 by Session Laws 2015-181, s. 15,
effective 1 December 2015, and applicable to offenses committed on or after that date.
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IN RE: S.A.A.
Opinion of the Court
purpose in acting. Otherwise, sexual ambitions must not
be assigned to a child’s actions. The element of purpose
may not be inferred solely from the act itself. . . . The mere
act of touching is not enough to show purpose.
In re K.C., 226 N.C. App. at 457, 742 S.E.2d at 242-43 (citations and internal
quotation marks omitted).
In In re T.C.S., an almost-twelve-year-old juvenile was seen coming out of the
woods holding hands with the five-year-old victim who “looked ‘roughed up’ with
twigs and branches in her hair, barefoot, clothes on backwards, and tags hanging
out[,]” and a witness saw the juvenile “appear[] to put his hands on his private parts
while [the victim] was taking off her clothes.” 148 N.C. App. 297, 302-03,558 S.E.2d 251
, 254 (2002). In addition, when another witness confronted the juvenile about what he was doing, the juvenile “smarted off” and told the adult witness his actions with the victim were “none of [her] business.”Id. at 303
,558 S.E.2d at 254
. This
Court held that
[t]he age disparity, the control by the juvenile, the location
and secretive nature of their actions, and the attitude of
the juvenile is evidence of the maturity and intent of the
juvenile. Taking all of the circumstances in the light most
favorable to the State, there is sufficient evidence of
maturity and intent to show the required element of “for
the purpose of arousing or gratifying sexual desire.”
Id. In contrast, in In re K.C., this Court considered an adjudication of delinquency on
the basis of sexual battery where the fifteen-year-old juvenile, “Keith,” was alleged to
have touched and squeezed the buttocks of a fifteen-year-old classmate, “Karen,”
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IN RE: S.A.A.
Opinion of the Court
during school. 226 N.C. App. at 454, 742 S.E.2d at 241. Karen reported that, on a
day when a substitute teacher was present, Keith had seated himself, not in his
assigned place, but at a desk near a classroom bookshelf. Id. When Karen stood near
Keith and bent over to re-shelve a book, “Keith ‘touched and grabbed her.’ Karen
reacted by informing Keith: ‘Don’t do that.’ Keith did not respond.” Id. (brackets
omitted). The evidence about Keith’s intent and purpose in touching Karen’s buttocks
was conflicting:
. . . Keith . . . 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.
....
When Karen was asked why she believed the contact was
intentional, she responded: “You can’t touch and grab
someone and not be accident [sic] and especially if you’re a
boy.” She also testified that Keith had said certain “nasty
stuff” to her at the beginning of the school year.
Specifically, Karen described an instance in which Keith
purportedly asked her, “When are you going to let me hit?,”
which Karen took to mean, “When are you going to let me
have sex with you?” When Keith was asked if he had ever
“talked to Karen about anything in a sexual nature,” he
avowed that he had not.
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Id. at 454, 457, 742 S.E.2d at 241, 243 (some brackets omitted). In holding this
evidence insufficient “to raise more than a suspicion or possibility that Keith
committed sexual battery[,]” we noted that
Keith and Karen [were] the same age and there [was] no
evidence that Keith exercised any particular control over
the situation. The incident occurred in a public school room
during the school day. Keith contends that the touching
was accidental and also made a statement to that effect
directly after the event. Further, Keith’s alleged request to
“hit” was made months before the moment of contact
between him and Karen, with no evidence of any contact of
any sort between the two of them from the beginning of
the school year, presumably in late August, through late
February.
Id. at 457-58, 742 S.E.2d at 243.
Here, we conclude that the evidence supporting an inference that Scott acted
with “the purpose of arousing or gratifying sexual desire” when he touched Melissa’s
and Lauren’s breasts is far weaker than that in In re T.C.S. and falls short even of
the evidence held insufficient in In re K.C. At the time of the incident, Scott was 13
years old and the girls 11 years old, and all three were students at the same middle
school. Scott consistently denied touching either girls’ breast, instead contending
that he had only put his hands around their shoulders. This account was supported
by testimony from one of Scott’s male friends who witnessed the incident and
described Scott touching a girl’s shoulder but not her breast. Neither the location nor
the alleged manner of the touching was secretive in nature. Rather, Scott and the
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Opinion of the Court
girls were on a public street with numerous other juveniles who were trick-or-
treating, and many other young people were acting “crazy,” running around, and
generally behaving as children and young teens might be expected to do on Halloween
night. The evidence was undisputed that Scott had been wiping the green glowing
liquid from his glove on trees, signs, and other young people during the night—
annoying, possibly even distressing and obnoxious, behavior—but not an obviously
sexual act. Similarly, nothing about Scott’s attitude suggested a sexual motivation
in rubbing the glowing liquid on the girls. Neither girl testified that Scott made any
sexual remarks to them, either on Halloween night or in any previous interactions
with him. Further, according to Brandon, when another young girl—apparently
neither Lauren nor Melissa—told Scott to stop putting the liquid on her on Halloween
night, Scott stopped, apologized, and walked away. Finally, when the girls ran away
after Scott touched them, Scott did not pursue or try to stop them, or attempt to exert
control over them in any way. This evidence, even taken in the light most favorable
to the State, does not support an inference that Scott touched Lauren’s and Melissa’s
breasts for “the purpose of arousing or gratifying sexual desire.” Accordingly, we
vacate the adjudication of sexual battery, affirm the adjudication of simple assault,
and remand for a new dispositional order, the previous disposition having been based
upon sexual battery as the most serious offense before the district court. In light of
this result, we do not address Scott’s additional arguments.
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Opinion of the Court
VACATED IN PART AND REMANDED.
Judges BRYANT and CALABRIA concur.
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