Filed: 17 December 2002
THOMAS, Judge.
Defendant, Joseph Edward Tucker, argues two assignments of
error in his appeal. First, he contends there is insufficient
evidence that he committed a second-degree sexual offense. Second,
he argues the trial court erred in calculating his prior record
level by equating his stay at a juvenile training school, now known
as a youth development center, with a “sentence of imprisonment.”
For the reasons herein, we find no error in the second-degree
sexual offense conviction but reverse and remand for sentencing
purposes. We note that defendant abandoned the part of his appeal
challenging convictions of crime against nature and attempted crime
against nature.
Defendant, fifteen years old at the time of these offenses,
was initially under the jurisdiction of the juvenile court.
Jurisdiction was transferred to the superior court under N.C. Gen.Stat. § 7B-2200 following findings of probable cause and a transfer
hearing.
The State's evidence at trial in superior court tends to show
the following: On the night of 12 July 2000, “Juvenile A” was
accosted by defendant and another juvenile in Juvenile A's room at
Dobbs Training School in Kinston, North Carolina. All three
juveniles had earlier been committed to the Department of Juvenile
Justice and Delinquency Prevention upon findings of delinquency and
sent to Dobbs. Defendant and the other juvenile threw Juvenile A
on his bed and instructed him to remain silent. The other juvenile
then held Juvenile A down while defendant “stuck his penis in [his]
butt.” Juvenile A did not immediately report the incident but
instead waited until defendant and the other juvenile were
transferred to the “Segregation Unit” three days later for an
alleged assault on another juvenile. The Segregation Unit is a
section of the Training School where those who commit major
infractions are isolated in individual cells. A subsequent
physical examination of Juvenile A revealed trauma to his rectal
area, including penetration, bruising, lacerations and abrasions,
all of which were probably sustained three days prior to the
examination.
On 26 August 2000, “Juvenile B” was in his cell in the
Segregation Unit at Dobbs. Defendant entered Juvenile B's cell,
which had been unlocked for cleaning, and began helping him clean.
Defendant left, returned with some grease in his hand, and
instructed Juvenile B to “bend over [and pull [his] jumpsuit down.”Defendant then proceeded to have anal intercourse with Juvenile B,
although he told defendant that it “hurt and to stop.” Defendant
eventually left the cell, but returned a few minutes later and
again instructed Juvenile B to “bend over and pull [his] jumpsuit
down.” When defendant pulled down his own jumpsuit, however,
Darnetta Kittrell, a staff member at Dobbs, entered the cell and
confronted defendant and Juvenile B. Kittrell reported that
Juvenile B was frightened, crying, and trembling when she discussed
the incident with him in a nearby office.
Juvenile B testified that he complied with defendant's
instructions because he was afraid of being beaten up by a group of
juveniles at Dobbs who were referred to as the “Raleigh boys.” Not
only had defendant threatened Juvenile B the previous night with
the use of the Raleigh boys, but Juvenile B had earlier been
“jumped” by defendant and two other boys in January 2000.
Defendant's evidence, meanwhile, tends to show the following:
No staff member at Dobbs saw defendant leaving or entering any of
the rooms during the night of 12 July 2000. On 26 August 2000,
William Harrison, the Segregation Unit supervisor, unlocked the
cell doors of both Juvenile B and defendant in order for them to
clean their cells. He noted that the boys were chatting as they
worked and Juvenile B did not seem afraid of defendant. Harrison
said he did not hear or see any unusual behavior before being
summoned by Kittrell to Juvenile B's cell.
At the close of all the evidence, defendant moved to dismiss
the charges based on insufficiency of the evidence. The trialcourt denied the motion.
The jury returned guilty verdicts of second-degree sexual
offense and crime against nature involving Juvenile A and attempted
crime against nature as to Juvenile B. Finding that the offenses
were committed while defendant was serving a sentence of
imprisonment, the trial court determined defendant to have a prior
record classification of Level II under N.C. Gen. Stat. § 15A-
1340.14. Defendant was sentenced to a minimum of 100 and a maximum
of 129 months for second-degree sexual offense, a concurrent
sentence of six to eight months for crime against nature and a
consecutive sentence of seventy-five days for attempted crime
against nature.
By his first assignment of error, defendant contends the trial
court erred in denying his motion to dismiss because there was
insufficient evidence he committed second-degree sexual offense.
The elements of second-degree sexual offense are: (1) a person
engages in a sexual act; (2) with another person; and (3) the act
is by force and against the person's will. See N.C.G.S. §
14-27.5(a) (2001). Defendant does not contest that ample evidence
was presented of a sexual act between defendant and Juvenile A.
However, defendant argues, the State failed to present sufficient
evidence to demonstrate the act was against Juvenile A's will.
Specifically, defendant asserts the testimony of security personnel
at Dobbs did not corroborate Juvenile A's accusations of force or
lack of consent, Juvenile A did not cry during the alleged assault,
and Juvenile A did not immediately report the assaults. In reviewing a motion to dismiss, the court must determine
whether there is both substantial evidence of each element of the
offense charged and substantial evidence that the defendant is the
perpetrator. State v. Stroud, 345 N.C. 106, 111, 478 S.E.2d 476,
479 (1996), cert. denied, 522 U.S. 826, 139 L. Ed. 2d 43 (1997).
“Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.” State v. Olson,
330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The evidence must
be considered in the light most favorable to the State, drawing all
reasonable inferences in the State's favor whether the evidence is
direct, circumstantial, or both. State v. Israel, 353 N.C. 211,
539 S.E.2d 633 (2000).
Actual physical force is not required under North Carolina's
sexual offense statute to satisfy the requirement of the sexual act
being committed “by force and against the will” of the victim.
State v. Locklear, 304 N.C. 534, 540, 284 S.E.2d 500, 503 (1981).
“Fear of serious bodily harm reasonably engendered by threats or
other actions of a defendant and which causes the victim to consent
to the sexual act takes the place of force and negates the
consent.” Id.
In Locklear, the victim, a seventeen-year-old, had been
arrested and placed in a cell with three other young offenders who
threatened and assaulted him until he agreed to perform fellatio on
all of them. Id. at 540, 284 S.E.2d at 503-04. The victim did not
report the incidents until he was removed from jail two days later
for a court appearance despite wardens being available during theinterim. Id. Nonetheless, our Supreme Court held that since the
victim was placed in a cell with strangers from which he could not
escape, and was threatened with harm to his life, there was
sufficient evidence to satisfy the element of “by force and against
the will” of the victim. Id. at 540-41, 284 S.E.2d at 504.
Here, Juvenile A presented evidence of being thrown onto his
bed, face down, by defendant and the other juvenile, and being held
during the assault. He was told that if he did not remain silent
they would “beat [him] down.” Juvenile A immediately reported the
incident after his assailants were transferred to another unit,
then feeling safe enough to do so. A subsequent physical
examination showed Juvenile A suffered trauma to his rectum,
including penetration, lacerations, bruising, and abrasions.
This evidence of actual force, substantiated by physical
evidence, and evidence of the threat of greater physical violence,
were sufficient to allow a jury to determine whether Juvenile A was
forced to engage in a sexual act by force and against his will.
Defendant's assignment of error therefore lacks merit.
By his second assignment of error, defendant contends the
trial court erred by assigning a sentencing point because defendant
was in training school at the time of the offense. He argues that
he was not serving a sentence of imprisonment so as to make N.C.
Gen. Stat. . 15A-1340.14(b)(7) applicable. We agree.
Under the Structured Sentencing Act, N.C. Gen. Stat. §§ 15A-
1340.10 to 1340.23, the trial court must determine a defendant's
prior record level by assigning points for previous convictionsbefore imposing a sentence. N.C. Gen. Stat. § 15A-1340.14 (2001).
An offender with one to four points is classified as Level II for
sentencing purposes, whereas an offender with no points is
classified as Level I. N.C. Gen. Stat. § 15A-1340.14(c) (2001).
One point is assigned:
If the offense was committed while the
offender was on supervised or unsupervised
probation, parole, or post-release
supervision, or while the offender was serving
a sentence of imprisonment, or while the
offender was on escape from a correctional
institution while serving a sentence of
imprisonment[.]
N.C. Gen. Stat. § 15A-1340.14(b)(7) (2001).
The Act “applies to criminal cases in North Carolina.” N.C.
Gen. Stat. § 15A-1340.10 (2001). Under our Juvenile Code, “[a]n
adjudication that a juvenile is delinquent or commitment of a
juvenile to the Department for placement in a youth development
center shall neither be considered conviction of any criminal
offense nor cause the juvenile to forfeit any citizenship rights.”
N.C. Gen. Stat. . 7B-2412 (2001) (emphasis added).
Further, the juvenile justice system is permitted to lack the
full array of constitutional guarantees because it does not contain
clearly criminal or civil proceedings, and provides for the
possibility of an “intimate, informal protective proceeding.”
McKeiver v. Pennsylvania, 403 U.S. 528, 545, 29 L. Ed. 2d 647 ___,
(1971). For example, there is no right to bond in North Carolina's
juvenile system, and no right to a jury trial. See In re Whichard,
8 N.C. App. 154, 174 S.E.2d 281 (1970), cert. denied, 403 U.S. 940,
29 L. Ed. 2d 719 (1971). The juvenile system is designed toprotect both the welfare of the delinquent child as well as the
best interest of the State. Matter of Hardy, 39 N.C.App. 610, 614,
251 S.E.2d 643, 646 (1979). As a result, the objectives of
confinement under the Juvenile Code significantly differ from those
for imprisonment under our criminal statutes.
The primary purposes of criminal sentencing
are to “impose a punishment commensurate with
the injury the offense has caused ...; to
protect the public by restraining offenders;
to assist the offender toward rehabilitation
...; and to provide a general deterrent to
criminal behavior.” N.C. Gen. Stat. § 15A-
1340.12 (1994). A juvenile disposition on the
other hand, has as its primary purpose “to
design an appropriate plan to meet the needs
of the juvenile and to achieve the objectives
of the State in exercising jurisdiction.”
N.C.
Gen. Stat. § 7A-646 (1995)
Matter of Carter, 125 N.C. App. 140, 141, 479 S.E.2d 284, 285
(1997). The Juvenile Code was modified effective 1 July 1999 with
the following purposes and policies:
(1) To protect the public from acts of
delinquency.
(2) To deter delinquency and crime, including
patterns of repeat offending:
a. By providing swift, effective dispositions
that emphasize the juvenile offender's
accountability for the juvenile's actions; and
b. By providing appropriate rehabilitative
services to juveniles and their families.
(3) To provide an effective system of intake
services for the screening and evaluation of
complaints and, in appropriate cases, where
court intervention is not necessary to ensure
public safety, to refer juveniles to
community-based resources.
(4) To provide uniform procedures that assure
fairness and equity; that protect the
constitutional rights of juveniles, parents,
and victims; and that encourage the court and
others involved with juvenile offenders to
proceed with all possible speed in making and
implementing determinations required by thisSubchapter.
N.C. Gen. Stat. § 7B-1500 (2001). Additionally, dispositions have
the following purpose:
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, including the protection of the
public. The court should develop a disposition
in each case that:
(1) Promotes public safety;
(2) Emphasizes accountability and
responsibility of both the parent, guardian,
or custodian and the juvenile for the
juvenile's conduct; and
(3) Provides the appropriate consequences,
treatment, training, and rehabilitation to
assist the juvenile toward becoming a
nonoffending, responsible, and productive
member of the community.
N.C. Gen. Stat. § 7B-2500 (2001). While protection of the public
has received new emphasis, and accountability has become an
integral part of rehabilitation, the Juvenile Code remains far from
a punitive system.
Accordingly, the State's argument that the plain language of
section 15A-1340.14(b)(7), stating that an “offense . . . committed
. . . while the offender was serving a sentence of imprisonment”
clearly applies in all instances when an offender is detained
against his will or restrained in some manner is too broad and, in
the juvenile context, inapposite. A juvenile in North Carolina is
not convicted in Juvenile Court of anything. Likewise, a juvenile
is not sentenced by the Juvenile Court and there is no sentence of
imprisonment. A juvenile may be adjudicated delinquent by the
Juvenile Court and, where appropriate, committed to the Departmentof Juvenile Justice and Delinquency Prevention for placement in a
youth development center. See N.C. Gen. Stat. § 7B-2506(24)
(2001). There is a fundamental legal difference between these
wording choices unrelated to mere delicacy of diction.
Therefore, while we find no error in defendant's conviction of
second-degree sexual offense, we reverse that part of the order
placing defendant in a Level II classification and remand for
sentencing consistent with this opinion.
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