Appeal by juvenile from orders entered 11 January 1999 and 18
June 1998 by Judge Pattie S. Harrison in District Court, Caswell
County. Heard in the Court of Appeals 25 April 2001.
Attorney General Michael F. Easley, by Assistant Attorney
General Amy C. Kunstling, for the State.
George B. Daniel, P.A., by John M. Thomas, for juvenile-
appellant.
TIMMONS-GOODSON, Judge. Jonathan Heil (“juvenile”) appeals from an order adjudicat
ing
him delinquent within the meaning of section 7A-517(12) of the
North Carolina General Statutes
(See footnote 1)
and a dispositional order placing
him on probation and ordering him to make restitution. For the
reasons herein stated, we affirm the adjudication of delinquency
but reverse the trial court's dispositional order and remand for
reconsideration of the restitution issue.
On 28 January 1998, a juvenile petition was filed alleging
that juvenile was delinquent, in that he “commit[ted] the
abominable and detestable crime against nature with [C.I.] in
violation of [North Carolina General Statutes section] 14-177.”
The adjudication hearing was held on 8 and 18 June 1998, and the
State's evidence showed that at the time of the incident alleged in
the petition, juvenile was eleven years old and the victim, C.I.,
was four years old. Juvenile's and C.I.'s family socialized
together at their church and in other settings. One night in
October 1996, C.I. and his mother, Janet Isackson (“Mrs.
Isackson”), visited the Heil's home. At some point during the
visit, C.I. and juvenile went upstairs to play, but after
approximately fifteen minutes, C.I. returned downstairs and
informed his mother that he was ready to go home.
Mrs. Isackson later asked C.I. whether he had fun at the
Heil's house, to which C.I. responded that he had not enjoyed thevisit. C.I. informed his mother that juvenile had put him in a
closet, shut the door, and touched his penis. Upon further
inquiry, C.I. demonstrated how juvenile touched him by placing his
hands on his penis.
The next day, C.I.'s father, Bradley Isackson (“Mr.
Isackson”), questioned C.I. concerning the incident. Mr. Isackson
testified as a rebuttal witness for the State. According to Mr.
Isackson, C.I. informed his father and mother that while in a
closet at the Heil's house, juvenile wanted C.I. to lick his penis.
Mrs. Isackson then inquired, “'[C.I.] show me what [juvenile]
wanted you to do,'” to which C.I. responded, “'He wanted me to
lick.'” Mrs. Isackson further inquired, “'Exactly what did you
do?'” According to his father's testimony, “'[C.I.] just went
over there and just licked [Mrs. Isackson's] thumb and that was it.
And then [C.I.] said, '[Juvenile] wanted me to do it again,' and he
said, 'No, I don't want out [sic].' He said, 'I don't like that.
I'm not going to do that.'”
In October 1997, C.I. informed Mrs. Isackson that on another
occasion, juvenile had put his hands down C.I.'s pants underneath
his underwear and touched his penis. The Isacksons reported this
and the October 1996 incident to the Department of Social Services
and later to the police.
Shortly thereafter, an investigator with the Caswell County
Sheriff's Department, now Chief of the Yanceyville Police
Department, Eric Taylor (“Chief Taylor”), interviewed juvenile and
C.I. separately. During his interview with Chief Taylor, juvenile
denied that the incidents ever occurred. However, C.I. told ChiefTaylor that one day at the Heil's home, juvenile made him go into
a closet, shut the door, and touched his penis. C.I. further
mentioned that juvenile put his hands down his pants. However,
according to Chief Taylor, “[C.I.] stated that [juvenile] did not
put his mouth on him and - did not put his mouth on [C.I.] and that
[C.I.] did not put his mouth on him in any way.”
Dr. Mary Baker Sinclair (“Dr. Sinclair”), an expert in
pediatric psychology, conducted interviews with C.I. and his
parents concerning his alleged encounters with juvenile. Dr.
Sinclair testified at trial that C.I. identified the penis on an
anatomically correct drawing of a male, although her assessment
otherwise indicated that C.I. had limited exposure to sexual
content. Dr. Sinclair stated that despite some inconsistencies in
his story, including the number of times he was fondled and where
the fondling took place, C.I. consistently identified juvenile as
the person who touched his penis. Dr. Sinclair explained that the
“somewhat inconsistent” nature of C.I.'s accounts indicated to her
that he was truthful and was not being coached into a “robotic”
answer. C.I. did not testify at the adjudication proceeding.
Juvenile's evidence included testimony from his mother,
Johnetta Heil (“Mrs. Heil”), and his sister that during C.I.'s fall
1996 visit to their home, C.I. and juvenile never went upstairs
together. Mrs. Heil specifically testified that during that
particular visit, she never saw any of her children or C.I. go
upstairs. Mrs. Heil further testified that juvenile denied to her
that the incident ever occurred and that she believed him.
Juvenile's sister likewise testified that she did not believe thatjuvenile fondled the alleged victim. She further related an
incident in which C.I., whom she described as “very rambunctious,”
pinched her breast. According to juvenile's sister, when she
informed C.I.'s parents of the incident, Mrs. Isackson simply
stated, “'Well, you know, you're going to like it when you're
older.'”
Also testifying on juvenile's behalf, his Boy Scout master
stated that he had never received any reports of misconduct on the
part of juvenile, nor had he personally witnessed any misconduct.
Members of the church attended by both juvenile and C.I. generally
described juvenile as being of good character and obedient, while
they described C.I. as being “hungry for attention” and
undisciplined. Juvenile, testifying on his own behalf, denied the
allegations in the petition.
After the presentation of all the evidence, juvenile moved to
dismiss the petition, arguing that there was insufficient evidence
to support the allegations contained therein. The court denied the
motion and upon hearing arguments from counsel, adjudicated
juvenile delinquent. The dispositional portion of the proceedings
was postponed for the completion of a sex offender evaluation of
juvenile.
Following the dispositional hearing, the trial court ordered
juvenile committed to the Division of Youth Services for a period
not to exceed his eighteenth birthday. The court suspended the
aforementioned disposition in lieu of a one-year period of
probation. As a condition of juvenile's probation, the court
further ordered, inter alia, that he receive psychotherapy and thatjuvenile have no contact with the victim or any unsupervised
contact with children younger than himself. The “Dispositional
Order” also included the following provision: “[Juvenile] shall pay
restitution in the sum of $1,305.00 . . . to be disbursed to [the
North Carolina] Victims Compensation Fund. Monthly payments in the
amount of $50.00 shall be made on or before the 3rd [of] each month
beginning February 3, 1999 until the total is paid.” Juvenile gave
notice of appeal in open court.
[1]We first examine juvenile's argument that the trial court
erred in failing to dismiss the petition at the close of all of the
evidence, in that there was insufficient evidence to prove his
guilt beyond a reasonable doubt as to each of the elements of a
crime against nature.
“[A]ll rights afforded adult offenders” are bestowed upon
juveniles in adjudication proceedings. N.C. Gen. Stat. § 7A-631
(1995) (repealed 1 July 1999). The juvenile is therefore “entitled
to have the evidence evaluated by the same standards as apply in
criminal proceedings against adults.”
In re Dulaney, 74 N.C. App.
587, 588, 328 S.E.2d 904, 906 (1985). Like adult defendants,
juveniles “may challenge the sufficiency of the evidence by moving
to dismiss the juvenile petition.”
In re Davis, 126 N.C. App. 64,
65-66, 483 S.E.2d 440, 441 (1997). Juvenile in the case
sub judice
satisfied the aforementioned requirement, and therefore, his
argument concerning the sufficiency of the evidence is properly
before this Court.
See N.C.R. App. P. 10(b)(3)(2000). Where the juvenile moves to dismiss, the trial court m
ust
determine “whether there is substantial evidence (1) of each
essential element of the offense charged, . . . and (2) of
[juvenile's] being the perpetrator of such offense.”
State v.
Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations
omitted). When the evidence raises no more than “a suspicion or
conjecture as to either the commission of the offense or the
identity of the [juvenile] as the perpetrator of it, the motion
should be allowed.”
Id.
The existence of only circumstantial evidence, however, does
not warrant dismissal.
State v. Barnes, 334 N.C. 67, 430 S.E.2d
914 (1993) . Where the evidence is circumstantial, “the court must
consider whether a reasonable inference of [juvenile's] guilt may
be drawn from the circumstances.”
Id. at 75, 430 S.E.2d at 919
(citation omitted). When the court determines that an inference
may be drawn, it is then within the court's fact-finding function
to determine “whether the facts, taken singly or in combination,
satisfy [the court] beyond a reasonable doubt” that the juvenile is
delinquent.
State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661,
665 (1965). “Both competent and incompetent evidence must be
considered.”
State v. Lyons, 340 N.C. 646, 658, 459 S.E.2d 770,
776 (1995). Moreover, the court must disregard the juvenile's
evidence, unless it supports or explains the State's case without
contradicting it, or unless it is otherwise favorable to the State.
State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455,
cert.
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000) . In reviewing a challenge to the sufficiency of evidence, it is
not our duty to weigh the evidence, but to determine whether there
was substantial evidence to support the adjudication, viewing the
evidence in the light most favorable to the State, and giving it
the benefit of all reasonable inferences.
Id. at 378-79, 526
S.E.2d at 455 .
The petition in the present case alleged that juvenile was
delinquent for violating North Carolina General Statutes section
14-177, which provides: “If any person shall commit the crime
against nature, with mankind or beast, he shall be
punished . . . .“ N. C. Gen. Stat. § 14-177 (1999). The essential
element of the so-called “crime against nature, with mankind” is
“some penetration,
however slight, of a natural orifice of the
body.”
State v. Whittemore, 255 N.C. 583, 585, 122 S.E.2d 396, 398
(1961) (emphasis added)
; State v. Joyner, 295 N.C. 55, 243 S.E.2d
367 (1978). Our Supreme Court has previously stated that
“penetration need not be to any particular distance.”
Whittemore,
255 N.C. at 585, 122 S.E.2d at 398.
C.I.'s father, Mr. Isackson, testified that when inquiring of
C.I. “[e]xactly what did you do” after juvenile asked C.I. to lick
his penis, C.I. “just went over there and just licked [Mrs.
Isackson's] thumb
.” On appeal, juvenile contends that even if the
aforementioned testimony were taken as true, it was insufficient to
support a finding that penetration occurred. We disagree.
We recognize that the evidence of penetration is, at best,
slight. However, in light of the relative size difference betweena four-year old and an eleven-year old, and the fact that the
incident occurred in the presumably close quarters of a closet
, it
was reasonable for the trial court to find based on Mr. Isackson's
testimony that there was some penetration, albeit slight, of
juvenile's penis into C.I.'s mouth. We therefore find the evidence
sufficient to support juvenile's adjudication, as there was
evidence from which the trial court could find that “some
penetration” had occurred.
Whittemore, 255 N.C. at 585, 122 S.E.2d
at 398.
Juvenile further contends that the evidence does not support
his adjudication because Mr. Isackson's testimony, the only
evidence allegedly demonstrating penetration, was hearsay, was
uncorroborated, and was even contradicted. Juvenile points to the
testimony of C.I.'s mother, Mrs. Isackson, Chief Taylor, and Dr.
Sinclair, none of whom testified that C.I. ever mentioned the
incident described by Mr. Isackson. Juvenile specifically
references Chief Taylor's testimony, in which he stated that C.I.
expressly informed him that juvenile never put his mouth on C.I.
and that C.I. never put his mouth on juvenile. With this argument,
we also disagree.
First, in his appellate brief, juvenile expressly withdraws
his assignment of error concerning the admission of Mr. Isackson's
testimony and further does not present any support for his
contention that it was hearsay or inadmissible. We therefore
presume that juvenile has abandoned any argument he may present
against the admissibility of that testimony and its effect on his
adjudication.
See N.C.R. App. P. 28(b)(5)(2000). Second,concerning the inconsistencies in
the testimony, as noted
supra<
/i>,
inconsistencies and discrepancies cannot be the basis for granting
a motion to dismiss or for overruling a trial court's denial of
said motion. Barnes, 334 N.C. 67, 430 S.E.2d 914. Resolving
contradictions and inconsistences in the evidence falls within the
province of the trial court when performing as the fact finder, and
thus, it is not our place to now weigh the evidence on appeal. See
Fritsch, 351 N.C. 373, 526 S.E.2d 451. As we find the evidence
sufficient to support the adjudication of delinquency, juvenile's
first argument is overruled.
[2]By his second argument, juvenile contends that the trial
court erred in ordering restitution payable to the North Carolina
Victim's Compensation Fund. Juvenile argues that no evidence was
introduced at the adjudication or dispositional proceedings
indicating the amount of restitution due the victim or his family.
Juvenile further argues that the Victim's Compensation Fund was not
entitled to receive restitution, as it suffered no loss based upon
his alleged delinquency. Because juvenile did not object to the
award of restitution based upon the particular grounds he raises on
appeal, he has not preserved the aforementioned argument for
appellate review. See N.C.R. App. P. 10(b)(1).
Juvenile's failure to preserve his arguments for review
notwithstanding, the State has brought to our attention errors in
the juvenile court's disposition, which we believe necessitate
remanding the case for entry of a modified dispositional order.
The State notes that given the statutory provisions and relevantcase law governing restitution in juvenile dispositions, the trial
court erred in failing to consider or make findings concerning
juvenile's best interest and in considering his parents' ability to
pay. We must agree.
Section 7A-649 of our General Statutes authorized the juvenile
court to order a delinquent juvenile to “make specified financial
restitution” as a condition of his probation. N.C. Gen. Stat. §
7A-649(8)(e)(1995)(repealed 1 July 1999). This Court has
consistently “endors[ed] the discriminate and prudent use of
restitution in juvenile cases” but has cautioned that “compensation
of victims should never become the only or paramount concern in the
administration of juvenile justice.” In re Register, 84 N.C. App.
336, 339, 352 S.E.2d 889, 891 (1987) (emphasis added); see also
N.C. Gen. Stat. § 7A-646 (1995) (repealed 1 July 1999) (“The
purpose of dispositions in juvenile actions is to design an
appropriate plan to meet the needs of the juvenile and to achieve
the objectives of the State in exercising jurisdiction.”) As such,
requiring “that a juvenile make restitution as a condition of
probation must be supported by the record and appropriate findings
of fact which demonstrate that the best interest of the juvenile
will be promoted by the enforcement of the condition.” In re
Berry, 33 N.C. App. 356, 360, 235 S.E.2d 278, 280-81 (1977); In re
Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001). See also In
re McKoy, 138 N.C. App. 143, 530 S.E.2d 334 (2000).
Furthermore, the juvenile court “shall not require the
juvenile to make restitution if the juvenile satisfies the courtthat he does not have, and could not reasonably acquire, the means
to make restitution.” N.C. Gen. Stat. § 7A-649(2). Section 7A-
649(2) emphasizes that the focus of the restitution award should
be the ability of the juvenile, not his parents, to pay
restitution. See McKoy, 138 N.C. App. at 148, 530 S.E.2d at 336.
Thus, the statute “does not authorize the juvenile court to
consider the parents' ability to pay restitution when ordering the
juvenile to make restitution to the victim as a condition of [his]
probation.” Id.
At the dispositional proceeding in the present case, the
juvenile court made no inquiry or findings concerning whether
ordering juvenile to make restitution as a condition of his
probation was in his best interest. Immediately upon being
informed by the State that C.I.'s therapy bills totaled $1,305.00,
the court stated, “They will have to pay restitution . . . ,”
presumably referring to juvenile's family. (Emphasis added).
Juvenile's mother, Mrs. Heil, informed the court that she could
afford to pay only “five dollars now,” at which time the court
informed her, “You're going to have to do some extra work or
something.” (Emphasis added). The court did acknowledge that
juvenile “himself [could] clean yards or something” and that
“really it should be his bill, not his parents.” However, the
court went on to state that it “expect[ed] the parents to help[.]”
This excerpt from the dispositional proceeding reveals that
the court's paramount concern was indeed the ability of juvenile's
family to pay restitution, not juvenile's best interest. Likewise,the amount of restitution ordered by the court reflected the exact
amount quoted by the State in reference to C.I.'s therapy bills,
indicating a concern to compensate the victim with no consideration
for or adjustment based upon juvenile's best interest or his
ability to pay. Accordingly, we conclude that the court erred
in failing to consider or make findings concerning whether the
restitution award was in juvenile's best interest and whether
juvenile, not his family, had the ability to pay restitution.
The State likewise points out other blatant errors in the
court's dispositional order which require our consideration.
First, by ordering that the period of restitution payments
perpetuate “until the total is paid,” the court also violated
section 7A-649(2), which requires that restitution must be “payable
within a 12-month period.” N.C. Gen. Stat. § 7A-649(2). Also,
there was an unexplained $200.00 discrepancy between the amount of
the restitution award, $1,305.00, and the amount of C.I.'s therapy
bills, as reflected in a “Determination of Director Award,” filed
by the commission who administers the Victim's Compensation Fund.
Despite juvenile's failure to challenge the errors raised by
the State and preserve them for appellate review, we suspend the
Rules of Appellate Procedure, see N.C.R. App. P. 2, and vacate that
portion of the 11 January 1999 dispositional order making
restitution a condition of juvenile's probation. We remand the
present case to the juvenile court to structure a modified
dispositional order reflecting a re-examination of the restitution
amount and payment schedule consistent with this opinion. In so
doing, we specifically instruct the court to (1) consider and makefindings concerning whether restitution is in juvenile's best
interest; (2) examine whether juvenile had or could reasonably
acquire the means to pay restitution; and (3) if the court finds
that a restitution payment schedule is in juvenile's best interest,
restrict the schedule to a period of twelve months or less and re-
examine the restitution amount in light of the above noted $200.00
discrepancy. We further affirm the 18 June 1998 adjudication order
and 11 January 1999 dispositional order in all other respects.
Affirmed in part, vacated and remanded in part.
Judges WYNN and HUDSON concur.
Footnote: 1