In the Matter of: T.C.S., Juvenile
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth N. Strickland, for the State.
Law Offices of James R. Ansley, by James R. Ansley and Robert
J. Clements, for respondent-appellant.
WALKER, Judge.
On 26 July 1999, T.C.S., a juvenile, only one month from being
twelve years old, was charged with second degree rape and taking
indecent liberties between children involving A.H. who was five
years old. The adjudication hearing began on 18 November 1999, and
when it was not concluded that day, the juvenile court tentatively
scheduled the hearing to continue on 22 December 1999. However,
the hearing did not resume until 23 February 2000.
The State's evidence tended to show the following. On 26 July
1999, Martha Sullivan saw three children, two girls and a boy,
walking by her house between 1:00 p.m. and 3:00 p.m. She
identified A.H. and her younger sister as the two girls but did not
know the identity of the boy. Ms. Sullivan testified that the boywas tall and slender, was wearing jeans and a hat, and appeared to
be white. Ms. Sullivan testified that, as she observed these
children, A.H. pulled down her shorts and underpants and laid down
on the ground at what appeared to be the request of the boy. The
boy's back was toward Ms. Sullivan, but she testified that “he had
his hands down like, you know, on his privates. And then he got
down on the ground on his knee and gotten on--getting on top of her
. . . . Just like he had put [his hands] down on the front, you
know, of his privates and whenever he got--and then he got on top
of her.” Ms. Sullivan then ran to the back door and “hollered at
them.” A.H. got up and put her clothes on. Then the three
children walked away in the direction of the next trailer.
John Sullivan, Ms. Sullivan's husband, was also home that day
and testified that, after being called to the back door by his
wife, he saw A.H. on the ground and it appeared she did not have on
any shorts or underpants. He then observed a boy who at first
walked away but then turned around and came back for his bike. Mr.
Sullivan testified that he could not identify the boy.
Candi Bowen testified that on the day in question, at around
1:00 p.m., after talking with her younger brother, she went looking
for the juvenile to speak with him. After searching, Ms. Bowen
found the juvenile and A.H. holding hands and coming from the
direction of the woods and a trampoline on which the children
played. A.H.'s sister was following behind them. When Ms. Bowen
asked where they had been, the juvenile “smarted off at me like
'none of your business.'” A.H. told Ms. Bowen that they had beenon the trampoline. Ms. Bowen testified that “[A.H.] looked roughed
up. She had branches in her hair. She didn't have no shoes on or
no socks on. Her pants were on backwards. Her tags were sticking
out the front of her shorts and was smiling, but you know, she
looked kind of--her eyes were like big, like kind of real big kind
of acting.”
A.H. was called to testify, but after being non-responsive to
examination by the judge and the prosecutor, the juvenile court
determined A.H. was not in a position to testify and declared her
unavailable for questioning.
A.H.'s mother testified that when she got home from work on
the evening of 26 July 1999, her daughter was “shook up” and
“looked rough.” She testified that A.H. told her that “her private
parts was hurting her.” After talking on the telephone with the
clinic, she took her daughter to Wake Medical Center the next day.
The testimony of A.H.'s mother showed that she related to the
clinic physician that A.H. had been playing in the woods when she
and a boy went off together. A.H. pulled down her pants and laid
down on the ground. The boy got on top of her and “stuck his wee
wee in.” Vivian Denise Everett, M.D., the Director of the
Child Sexual Abuse Team (the Team) at Wake Medical Center,
testified that she examined A.H. on 10 August 1999, pursuant to a
referral to the Team. Although she personally had not interviewed
A.H., Dr. Everett stated that a social worker on the Team had
interviewed her and reported her findings to Dr. Everett. Over
objection, Dr. Everett testified as to statements made by A.H. tothe social worker who then related them to Dr. Everett in
preparation for the medical examination. According to Dr. Everett,
A.H. told the social worker, in response to leading questions and
using anatomically correct dolls, that the juvenile took his pants
off and got on top of A.H. with her pants and underwear off. The
social worker asked whether the juvenile put “his wee wee” in A.H.
and A.H. nodded her head. The social worker asked “if his wee wee
went on the outside or if it went on the inside” of A.H.'s private
parts and A.H. responded that it was on the inside.
Dr. Everett also testified that her physical examination of
A.H. revealed the following in part:
that there was asymmetry, so that the hymen is
shaped like a crescent and you would expect on
either side of 12 o'clock to basically look
the same, since the hymen would be a crescent.
Instead, it was asymmetric, so the area at 11
o'clock was much higher than that at 1 o'clock
.... My assessment was that the physical exam
was consistent with the history that she gave,
which was that of penile vaginal penetration.
When the hearing resumed on 23 February 2000, Terry Gallagher
of the Cary Police Department testified that she twice interviewed
A.H. Officer Gallagher was called to the scene at the time of the
initial report on 26 July 1998 and returned one week later with a
photographic lineup created by Seth Lambert, a juvenile
investigator for the Cary Police Department. A.H. pointed out one
of the photographs presented to her to be that of the perpetrator.
Officer Lambert testified that he responded to the original
call from Ms. Harris. He had developed a photographic lineup from
a yearbook which included a photograph of the juvenile. Hetestified that neither Mr. nor Ms. Sullivan could identify the
perpetrator. He also interviewed the juvenile's father, who
indicated that, on 26 July 1999, the juvenile had been with him all
day and had been watching television in the living room.
At the close of the evidence, the juvenile successfully argued
for the dismissal of the charge of second degree rape by reason of
the failure of the evidence to support all of the elements of the
charge. However, the juvenile court denied the motion to dismiss
the charge of indecent liberties between children. The juvenile
did not present any evidence.
On appeal, the juvenile argues that the juvenile court erred
in failing to dismiss the charge of indecent liberties between
children for insufficient evidence. To survive a motion to
dismiss, the State must present “'substantial evidence of each
element of the charged offenses sufficient to convince a rational
trier of fact beyond a reasonable doubt of defendant's guilt.'” In
re Lucas, 94 N.C. App. 442, 452-53, 380 S.E.2d 563, 569 (1989)
(quoting State v. Griffin, 319 N.C. 429, 433, 355 S.E.2d 474, 476
(1987)). This may be from either direct or circumstantial evidence
and taken in a light most favorable to the State. Id.
The juvenile was charged under the “Indecent liberties between
children” statute, N.C. Gen. Stat. § 14-202.2 (1999), which states
as follows:
(a) A person who is under the age of 16 years
is guilty of taking indecent liberties with
children if the person either:
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties with
any child of either sex who is at least three
years younger than the defendant for the
purpose of arousing or gratifying sexual
desire.
Thus, the State must prove that (1) this juvenile (2) who is under
the age of sixteen years (3) took or attempted to take (4) indecent
liberties (5) with A.H. (6) who is at least three years younger
than the juvenile (7) for the purpose of arousing or gratifying
sexual desire.
The juvenile first claims there was insufficient evidence of
his being the perpetrator of the crime. Ms. Sullivan testified
that between the hours of 1:00 p.m. and 3:00 p.m. on 26 July 1999,
she saw A.H., A.H.'s sister, and another boy, who was roughly
twelve years old, walking together. Ms. Sullivan saw A.H., at the
urging of the boy, take off her clothes and lie down while the boy
climbed on top of her.
Ms. Bowen testified that, at a time consistent with the time
when Ms. Sullivan saw the three children, she saw A.H. walk out of
the woods holding hands with the juvenile with A.H.'s sister
trailing behind. A.H. looked “roughed up” with twigs and branches
in her hair, barefoot, clothes on backwards, and tags hanging out.
Officer Gallagher testified that A.H. identified the
perpetrator from a photographic lineup created by Officer Lambert
which included the juvenile. After the identification, the
officers continued their investigation of the juvenile. Although
the evidence is conflicting, when viewed in its totality and in thelight most favorable to the State, it is sufficient to show that
the juvenile was the perpetrator.
The juvenile also contends there was insufficient evidence to
show that he acted “for the purpose of arousing or gratifying
sexual desire” as required by N.C. Gen. Stat. § 14-202.2. In
arguing for a dismissal, the juvenile's counsel argued that even if
the juvenile were the perpetrator, the State failed to present any
evidence that he committed this act for the purpose of arousing or
gratifying sexual desire.
This Court has recently interpreted this provision of N.C.
Gen. Stat. § 14-202.2 in the case of In re T.S., 133 N.C. App. 272,
515 S.E.2d 230, disc. rev. denied, 351 N.C. 105, 540 S.E.2d 751
(1999). In that case, we held that, unlike the adult statute, “the
purpose to arouse or gratify sexual desires should not be inferred
from the act alone between children.” In re T.S., 133 N.C. App.
at 276, 515 S.E.2d at 233. “[A] lewd act by adult standards may be
innocent between children, and unless there is a showing of the
child's sexual intent in committing such an act, it is not a crime
under G.S. 14-202.2.” Id. Thus, this Court has held that the
State must show “some evidence of the child's maturity, intent,
experience, or other factor indicating his purpose in acting”
before imputing sexual ambitions to the child. Id. at 277, 515
S.E.2d at 233.
Here, the juvenile was almost twelve years of age when he was
seen holding hands with the five-year-old victim in the presence ofher three-year-old sister. The children were coming from a wooded
area and A.H. looked “roughed up.” Ms. Sullivan testified that
A.H.'s actions appeared to be done at the insistence and direction
of the boy she saw. Although his back was to her, Ms. Sullivan
testified that he appeared to put his hands on his private parts
while A.H. was taking off her clothes.
Also, as a result of a discussion with her younger brother,
Ms. Bowen searched for the juvenile on the afternoon of 26 July
1999. When found and confronted by Ms. Bowen as he was walking out
of the woods with A.H., the juvenile “smarted off” and told Ms.
Bowen that what the children had been doing was “none of your
business.” A.H.'s mother testified that A.H. stated that she and
a boy went off by themselves while they were out playing and the
boy “stuck his wee wee in” her.
The 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.” Thus, the juvenile court properly denied the
motion to dismiss the charge of indecent liberties between
children.
The juvenile next contends that the juvenile court erred in
admitting the statements of A.H. to the social worker through the
testimony of Dr. Everett. Our Courts have held that statements ofa victim to a social worker, even if ultimately used for the
purpose of medical diagnosis, are inadmissible hearsay if the
record fails to show that the victim “had a treatment motive” or
that there was some other indicia of reliability and truthfulness
in the manner of obtaining the statement. See State v. Waddell,
351 N.C. 413, 527 S.E.2d 644 (2000); State v. Hinnant, 351 N.C.
277, 523 S.E.2d 663 (2000); State v. Bates, 140 N.C. App. 743, 538
S.E.2d 597 (2000), disc. rev. denied, 353 N.C. 383, 547 S.E.2d 20
(2001).
Here, the State failed to show that A.H. knew her statements
were for treatment purposes or were otherwise reliable. Thus, the
admittance of the testimony of Dr. Everett that A.H. told the
social worker that the juvenile was the perpetrator was in error.
However, in light of the other evidence of identity, there was no
prejudicial error in admitting such evidence.
The juvenile finally contends that there was plain error in
the recess and continuing of the hearing for three months. The
juvenile has failed to show prejudice as a result of the delay. We
find there was no plain error. This assignment of error is
overruled.
In conclusion, we find there was sufficient evidence for the
juvenile court to adjudicate T.C.S. as delinquent based on his
committing indecent liberties between children. The hearing was
free of prejudicial error.
Affirmed. Judges WYNN and THOMAS concur.
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