IN THE MATTER OF NICHOLAS JONES, A Juvenile
1. Rape--juvenile petitions--sexual offense by older defendant against young victim--
no allegation of ages--insufficient
Juvenile petitions alleging violations of N.C.G.S. § 14-27.4(a)(1) (a sexual act with a
child under 13 by a defendant at least 12 years old and at least 4 years older than the victim)
were fatally defective where they did not contain the crucial allegations of the ages of the victim
and respondent and did not allege a violation of any other lesser or related sexual offense.
2. Rape--young victim and older defendant--no evidence of defendant's age--evidence
insufficient
There was plain error in a prosecution of a juvenile for violation of N.C.G.S. § 14-
27.2(a)(1) (rape of a child under 13 by a defendant at least 12 and at least 4 years older than the
victim) where the court failed to dismiss the charge for insufficient evidence in that the State did
not offer any evidence of respondent's age. No decisions of the North Carolina Supreme Court
allow the trial court to find beyond a reasonable doubt the respondent's age in a juvenile
prosecution for first-degree rape merely by observing the juvenile in the courtroom where the
State offers no direct or circumstantial evidence of the respondent's age and where the
respondent's age is an essential element of the crime charged.
Judge EDMUNDS concurring Appeal by respondent juvenile from an order entered 2 June
1998 by Judge Shirley H. Brown in Buncombe County District Court.
Heard in the Court of Appeals 23 September 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Daniel D. Addison, for the State.
Public Defender J. Robert Hufstader, by Assistant Public
Defender Patricia A. Kaufmann, for respondent appellant.
HORTON, Judge.
On 14 January 1998, Detective J. D. Owenby, Jr., of the
Buncombe County Sheriff's Department, verified five juvenile
petitions alleging that the respondent, Nicholas Jones, was a
delinquent juvenile by reason of various sexual offenses
involving L.G.C., a female juvenile. The petitions were approved
for filing by the Juvenile Intake Counselor on 26 January 1998.
The first of those petitions alleged, in pertinent part,
[t]hat the juvenile [respondent] is a
delinquent juvenile as defined by G.S. 7A-
517(12), in that at and in the county named
above [Buncombe], and on or about the 25th
day of November, 1997, the juvenile
unlawfully, willfully, and feloniously did
engage in a sex offense with [L.G.C.].
The offense charged here is in violation of
G.S. 14-27.
The second and third petitions were identical to the first,
except that both alleged the date of the offense to be 27November 1997. The fourth petition was also identical to the
first three petitions, except that it alleged the date of the
offense to be 28 November 1997. We will discuss the fifth
petition, which purported to charge the respondent with first-
degree rape, below.
[1]/A HREF>We first note that N.C. Gen. Stat. § 14-27 was repealed
in 1979. 1979 N.C. Session Laws, ch. 682, § 7, effective 1
January 1980. It appears from the record and the briefs of the
parties that the State intended to charge respondent with a
violation of N.C. Gen. Stat. § 14-27.4(a)(1) (Cum. Supp. 1998),
first-degree sexual offense, which reads as follows:
(a) A person is guilty of a sexual offense in the first
degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years
and the defendant is at least 12 years old and is at least four
years older than the victim[.]
The respondent's trial was conducted on the theory that he
was charged with first-degree sexual offense, and the trial court
adjudicated respondent to be delinquent "by reason of four counts
of 1st degree sex offense in violation of G.S. 14-27." The four
petitions described above, however, did not contain any
allegation of the age of the victim or the respondent. Respondent
argues that they were fatally defective on their faces, and that
judgment should be arrested in the four cases. We agree. N.C. Gen. Stat. § 7A-560 (1995), a part of our juvenile
code, provides, in pertinent part:
. . . In cases of alleged delinquency or
undisciplined behavior, the petitions shall be
separate.
A petition in which delinquency is alleged shall
contain a plain and concise statement, without
allegations of an evidentiary nature, asserting facts
supporting every element of a criminal offense and the
juvenile's commission thereof with sufficient precision
clearly to apprise the juvenile of the conduct which is
the subject of the accusation.
Respondent was, of course, entitled to adequate notice of
the charges against him so that he can defend himself against the
allegations of the petitions.
"Notice must be given in juvenile proceedings which
would be deemed constitutionally adequate in a civil or
criminal proceeding; that is, notice must be given the
juvenile and his parents sufficiently in advance of
scheduled court proceedings to afford them reasonable
opportunity to prepare, and the notice must set forth
the alleged misconduct with particularity."
State v. Drummond, 81 N.C. App. 518, 520, 344 S.E.2d 328, 330
(1986) (quoting In re Burrus, 275 N.C. 517, 530, 169 S.E.2d 879,
887 (1969)). Here, the four petitions did not state respondent's
alleged misconduct with particularity, in that they did not
contain the crucial allegations of the ages of the victim and
respondent as required for an alleged violation of N.C. Gen.
Stat. § 14-27.4(a)(1). Further, it does not appear that the
petitions in this case alleged a violation of any other lesser orrelated sexual offense described in Article 7 (Rape and Kindred
Offenses) of Chapter 14 of our General Statutes. The petitions
were fatally defective and the judgments based on them must be
arrested.
(1) With a victim who is a child under the age of 13 years
and the defendant is at least 12 years old or is at least four
years older than the victim[.]
Respondent objected to the amendment, and contends the trial
court erred in overruling his objection. We need not reach the
merits of respondent's argument, however, because the State didnot offer any evidence at trial that respondent was at least 12
years old or at least four years older than L.G.C. Respondent
contends the trial court committed plain error in failing to
dismiss the charge of first-degree rape for insufficiency of the
evidence. We note that respondent did not move to dismiss the
charges against him at trial, however, we have elected, pursuant
to our inherent authority and Rule 2 of the Rules of Appellate
Procedure, to consider whether there was sufficient evidence of
every element of the offense of first-degree rape to submit the
charge to the trial court as the trier of fact.
Under the plain error rule, the error of the trial court
must have "had a probable impact on the
jury's finding of guilt." Defendant,
therefore, "must convince this Court not only
that there was error, but that absent the
error, the jury probably would have reached a
different result."
State v. Allen, 339 N.C. 545, 555, 453 S.E.2d 150, 155-56 (1995)
(citations omitted), abrogated by State v. Gaines, 345 N.C. 647,
483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177
(1997). On a motion to dismiss,
the question is whether the evidence is
legally sufficient to support a verdict of
guilty on the offense charged, so as to
warrant submission of the charge to the jury.
We must view the evidence in the light most
favorable to the State and afford the State
every reasonable inference that may arise
from the evidence. There must be substantialevidence to support a finding that an offense
has been committed and that the defendant
committed it. Substantial evidence is such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
State v. Jackson, 119 N.C. App. 285, 287, 458 S.E.2d 235, 237
(1995) (citations omitted). Respondent contends the State failed
to offer evidence of his age at the time of the offense, that his
age was an essential element of the offense, and that the charge
of first-degree rape should be dismissed. We agree.
Our Supreme Court confronted the issue of a motion to
dismiss on a sex offense charge in State v. Rhodes, 321 N.C. 102,
361 S.E.2d 578 (1987). In Rhodes, the defendant was charged with
first-degree rape under N.C. Gen. Stat. § 14-27.2(a)(1). As in
the case before us, the ages of the victim and defendant were
elements of the offense. In Rhodes, the Supreme Court held that
the evidence of the respective ages of the victim and defendant
was sufficient to withstand the motion to dismiss:
A person may be guilty of first degree rape
if (1) he has vaginal intercourse with a
child under the age of 13 years, (2) he is at
least 12 years old and (3) he is at least
four years older than the victim. In this
case two witnesses, the ten year old
prosecuting witness and her nine year old
brother, testified the defendant had
intercourse with the ten year old girl. There
was testimony from several witnesses that the
prosecuting witness was ten years of age. The
defendant testified he was born on 4 February
1956 which would make him 29 years of age on4 January 1986. This evidence is sufficient
to withstand a motion to dismiss on the
charge of first degree rape.
Rhodes, 321 N.C. at 104, 361 S.E.2d at 580 (emphasis added)
(citation omitted). In the case before us, the defendant's age
is an essential element of the offense of the amended offense of
first-degree rape. The State bears the burden of proving each
element of a criminal offense beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 362, 25 L. Ed. 2d 368, 374 (1970). The
State did not, however, offer any evidence, direct or
circumstantial, of respondent's age at the time of the offense in
question. In the context of a motion to dismiss, the State must
present substantial evidence of each element of the offense
charged. State v. Nobles, 350 N.C. 483, 504, 515 S.E.2d 885, 898
(1999). The State contends, however, that in North Carolina the
jury may determine a criminal defendant's age merely by observing
him in the courtroom. In support of that position, the State
relies on the cases of State v. Samuels, 298 N.C. 783, 787, 260
S.E.2d 427, 430 (1979); State v. Evans, 298 N.C. 263, 267, 258
S.E.2d 354, 356 (1979), overruled on other grounds by State v.
Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989); State v. Gray, 292
N.C. 270, 286, 233 S.E.2d 905, 915 (1977); State v. Overman, 269
N.C. 453, 470, 153 S.E.2d 44, 58 (1967), overruled on other
grounds by State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986). Careful analysis of the facts of the cases cited by the State,
and other relevant North Carolina decisions, convinces us that
our evidentiary rule does not allow a jury to determine the age
of a criminal defendant beyond a reasonable doubt merely by
observing him in the courtroom without having the benefit of
other evidence, whether circumstantial or direct.
The first North Carolina decisions to deal with proof of the
age of a defendant were State v. Arnold, 35 N.C. 184 (1851) and
State v. McNair, 93 N.C. 628 (1885). In each case, the defendant
contended he was less than fourteen years of age at the time of
the offense in question, and thus presumptively incapable under
the common law of committing a criminal offense. "In cases of
rape, the common law presumption of incapacity was conclusive to
age fourteen." State v. Rogers, 275 N.C. 411, 424, 168 S.E.2d
345, 352 (1969), cert. denied, 396 U.S. 1024, 24 L. Ed. 2d 518
(1970). In Arnold, a prosecution for murder, the defendant
offered no evidence of his age at trial, but insisted on appeal
that he appeared to be under fourteen years of age, "and,
therefore, that it was incumbent on the State to prove that he
was over that age . . . ." Arnold, 35 N.C. at 187. Chief
Justice Ruffin opined for the Court that "[a]s the subject of
direct proof, the onus was certainly on the prisoner, as the
reputed age of every one is peculiarly within his own knowledge,and also the persons by whom it can be directly proved." Id. at
192. In McNair, the defendant also contended in defense of the
charge of murder that he was under the age of fourteen years at
the time of the alleged offense. There was testimony before the
jury on the issue of his age, the "mother of the prisoner
rendering it somewhat uncertain whether he was of that age, and a
number of witnesses for the State placing it at about seventeen
years." McNair, 93 N.C. at 630-31. In instructing the jury, the
trial court stated: "It is for you to say whether he is under
fourteen years of age or not, being, as you see him before you,
grown to the stature of manhood." Id. at 631. The prosecutor
suggested to the trial court that the instruction might be
construed as expressing an opinion on the defendant's age, and
the trial court gave the jury an additional instruction:
What the court said to them in reference to the size
and appearance of the prisoner was not to be taken by
them as indicating the opinion of the court as to the
prisoner's age, but that they had a right to consider
his size and appearance to aid them in coming to a
conclusion as to his age.
Id. at 631. In affirming McNair's conviction and death sentence,
Chief Justice Smith noted that "it was competent for the jury to
look at the prisoner and draw such reasonable inferences as to
his youth as his appearance warranted. Indeed, the burden rested
on him to prove his incapacity from nonage to commit the imputedcrime." Id. at 632 (emphasis added). Thus, in both Arnold and
McNair, we note that the burden was on the defendant to prove the
common law defense of "nonage." In Arnold, the defendant offered
no direct evidence as to his age, and thus failed to carry his
burden even though he was a "small boy," and appeared to be less
than fourteen years of age. In McNair there was conflicting
evidence from the defendant's mother and the State's witnesses,
so that it was held proper for the trial court to allow the jury
to observe the defendant himself to "aid" the jury in resolving
the conflicting testimony as to his age. Although neither of
these early decisions hold that a jury may determine the age of a
criminal defendant based entirely upon in-court observations,
without other evidence, these early cases apparently led to the
broad statement by Stansbury that the jury "may look upon the
prisoner, although he is not in evidence, to estimate his age."
Stansbury's, North Carolina Evidence, § 119 (2d ed. 1963).
In Overman, 269 N.C. 453, 153 S.E.2d 44, a prosecution for
rape, our Supreme Court held that it was not improper for the
assistant solicitor to comment in his argument to the jury on the
relative sizes of the prisoner and the alleged victim. In
finding that the argument was neither "offensive [n]or
inflammatory," the Supreme Court cited the above statement from
Stansbury relative to a jury "estimating" the age of a defendant. Id. at 470, 153 S.E.2d at 58. We note that in Overman, the size
of the defendant was not an essential element of the offense
charged.
A decade later, our Supreme Court decided Gray, 292 N.C.
270, 233 S.E.2d 905, in which the defendant was charged with
rape, felonious assault, and first-degree burglary. The State
was required to prove, as an essential element of the offense,
that the defendant was more than sixteen years of age. The
Supreme Court decided, as a matter of first impression, that when
age is in issue, the trial court may properly admit into evidence
the opinions of lay witnesses regarding a person's age. In Gray,
numerous lay witnesses offered their opinions as to the
defendant's age, and the defendant himself testified about his
Navy duty, his marriage and his two children. "From defendant's
own testimony the conclusion that he was more than sixteen years
old, although admittedly one for the jury to draw, is simply
inescapable." Id. at 286, 233 S.E.2d at 915. We note that the
record indicates that the defendant Gray was in fact twenty-
eight years of age at the time of his trial.
In Evans, 298 N.C. 263, 258 S.E.2d 354, the defendant was
charged with first-degree burglary, assault on a female with
intent to commit rape, and felonious larceny. The jury found the
defendant guilty of first-degree burglary, not guilty offelonious larceny, and guilty of misdemeanor assault on a female.
The trial court imposed an active sentence of life imprisonment
on the charge of burglary, and imposed a concurrent two-year
sentence on the misdemeanor of assault on a female. On appeal,
the defendant argued in part that the State failed to offer
evidence on an element of misdemeanor assault on a female because
there was no evidence that he was more than 18 years of age. In
affirming defendant's conviction, the Supreme Court cited McNair
and Stansbury for the proposition that "the jury may look upon a
person and estimate his age." Evans, 298 N.C. at 267, 258 S.E.2d
at 356. The Court continued, however, by pointing out that "any
error . . . relative to the assault charge was harmless[,]"
because the sentences ran concurrently. Id. at 267, 258 S.E.2d
at 356-57.
Later in 1979, the question was again presented to our
Supreme Court in Samuels, 298 N.C. 783, 260 S.E.2d 427.
Defendant Samuels was charged with first-degree rape and with
robbery with a dangerous weapon. He was convicted on the rape
count, and sentenced to life imprisonment. On appeal to our
Supreme Court, counsel for Samuels stated that he could find no
error prejudicial to defendant, and asked that the Supreme Court
review the record for possible prejudicial error. Justice
Copeland, writing for the Court, stated that one of the essentialelements of first-degree rape was that the defendant be more than
sixteen years of age at the time of its commission. Id. at 787,
260 S.E.2d 430. "Here, the jury had ample opportunity to view
the defendant and estimate his age. See State v. Evans, 298 N.C.
263, 258 S.E.2d 354 (1979)." Id. Although the brief opinion in
Samuels gives the impression that there was no other evidence of
defendant Samuel's age, requiring the jury to "estimate" his age,
one investigating officer testified that the victim described the
man who attacked her as "about 25 years of age, about 6 feet one
inches tall, 190 lbs., medium complexion, black hair . . . ."
Another officer also testified that the victim described her
assailant as "about 25 years of age . . . ." The victim
identified the defendant Samuels as her assailant. Thus, there
was competent lay opinion evidence of Samuels' age upon which the
jury could find that he was more than sixteen years of age at the
time of the offense charged.
In Barnes, 324 N.C. 539, 380 S.E.2d 118, the defendant was
convicted, among other things, for statutory rape. An element of
the offense was that the defendant be at least 12 years of age
and at least four years older than the victim. On appeal,
defendant challenged the constitutionality of the decisions in
Evans, Gray, and McNair, insofar as they allowed the jury to
"determine a defendant's age based on their observations of thedefendant." Barnes, 324 N.C. at 540, 380 S.E.2d at 119. Our
Supreme Court did not reach the constitutional question in
Barnes, however, because "the State [in Barnes] presented
adequate circumstantial evidence from which the jury could
determine defendant's age." Id.
In the case before us, the State offered no evidence, direct
or circumstantial, of the respondent's age although the State
itself moved to amend the juvenile petition and alleged that the
respondent was more than 12 years of age and more than four years
older than the alleged victim at the time of the offense. We do
not believe that any of the decisions of our Supreme Court allow
the trial court to find beyond a reasonable doubt the
respondent's age in a juvenile prosecution for first-degree rape,
merely by observing the juvenile in the courtroom, where the
State offers no direct or circumstantial evidence of the
respondent's age, and where the age of the respondent is an
essential element of the crime charged. The difficulty of
determining the age of a juvenile by merely observing the
juvenile is exacerbated by the requirement that the age of the
juvenile at the time of the alleged offense is the crucial
determination, not the age of the juvenile at the time of trial.
Further, the trial court made no specific finding as to
respondent's age at the time of the offenses alleged; theJuvenile Adjudication Order merely states that "after hearing all
the evidence in this matter that the juvenile did commit the acts
alleged and finds the juvenile to be delinquent." In light of
our decision, we need not reach the related constitutional
questions which arise if we relieve the State of the burden of
proving beyond a reasonable doubt an essential element of a
felony charge against a juvenile respondent.
We hold the trial erred in failing to dismiss the four
charges of first-degree sexual offense as fatally defective, and
in failing to dismiss the charge of first-degree rape at the
close of the evidence, the State having failed to offer any
evidence of respondent's age. In light of our decision, we need
not consider respondent's contention that the trial court erred
in allowing the State to amend over his objection the juvenile
petition charging him with first-degree rape.
Reversed.
Judge WYNN concurs.
Judge EDMUNDS concurs in result with separate opinion.
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