IN THE MATTER OF: Union County
JAMES NICHOLAS ALLEN No. 99 J 145
Attorney General Roy A. Cooper III, by Assistant Attorney
General David Gordon, for the State.
Carol L. Huffman for juvenile-appellant.
EAGLES, Chief Judge.
Nicholas Allen (“juvenile”) was adjudicated delinquent upon a
finding that he committed the offense of attempted second degree
sexual offense. In a 25 September 2000 disposition order, the
trial court placed juvenile on supervised probation for a period of
twelve months upon the conditions that he receive a sex offender
evaluation, that he not associate with any juvenile under the age
of sixteen unless accompanied by an adult, that he have no contact
with his victim, and that he complete 150 hours of community
service following probation. Juvenile appeals.
The evidence tends to show the following: Between July and
October 1999, juvenile, a thirteen-year old male, offered J.T.
(“the victim”), a nine-year old male, an art set if the victim
would enter his home, specifically his bedroom. The victim agreed,entered juvenile's bedroom, and laid on the bed. While on the bed,
juvenile took off the victim's clothes and “stuck his penis in [the
victim's] behind.” Based on the evidence in the record, it is not
conclusive whether juvenile's penis actually touched the victim on
the inside or “outside of [his] bottom.” In late October 1999, the
victim informed his parents that he had been sexually assaulted by
juvenile.
On 29 October 1999, the parents took the victim to see Dr.
Gwendolyn Perkins for a sexual assault evaluation. During the
evaluation, the victim told Dr. Perkins that “he had had at least
three episodes of rectal sex with” juvenile in juvenile's bedroom.
Upon a full physical examination, Dr. Perkins found abnormalities
in the victim's rectal area -- specifically, redness around the
rectum, a relaxed sphincter, and a small healing fissure. Based on
the victim's history and her physical examination of the victim,
Dr. Perkins opined that the victim had been sexually assaulted.
Thereafter, the parents contacted Detective Robert Rollins of
the Union County Sheriff's Office. On 2 November 1999, Detective
Rollins interviewed the victim. During the interview, the victim
described several sexual acts performed by juvenile upon him
beginning in the summer of 1999 and continuing until October 1999.
Specifically, the victim detailed one occasion in juvenile's
bedroom when juvenile “pushed him to the floor, pulled his pants
down, and stuck his . . . private in [the victim's] butt.”
On 1 February 2000, three identical juvenile petitions were
filed in Union County District Court alleging that juvenile wasdelinquent in that between July and October 1999 “juvenile did
unlawfully, willfully, and feloniously engage in a sex offense with
[the victim], age 9 years, by force and against that victim's
will,” in violation of G.S. § 14-27.5. On 7 August 2000, an
adjudicatory hearing was held before the Honorable Joseph Williams.
During the hearing, the victim testified that between July and
October 1999 juvenile “stuck his penis up [his] behind” in
juvenile's bedroom, at the creek near juvenile's home, and in
juvenile's living room. Following Dr. Perkins' and Detective
Rollins' testimony, juvenile testified and denied all of the
allegations.
After the parties presented their closing arguments, the trial
court found that
[i]t's clear to [the court] when these
petitions were drawn it was the intent that it
be in regard to three instances that allegedly
occurred at this juvenile's home. In regards
to those three instances [the court] find[s]
that the State has proven beyond a reasonable
doubt that he did commit one of these offenses
and the other two they have not proven.
By order entered 7 August 2000, the trial court further found
that based upon the evidence presented in this
matter . . . the allegations set forth in the
petitions are true and correct and that the
juvenile is adjudicated to be a deliinquent
[sic] juvenile as defined by NCGS 7B-1501(7)
for the offense of Attempt 2nd Degree Sex
Offense . . .
and ordered that the case be continued for disposition.
Subsequently, a dispositional hearing was held on 25 September
2000. At the conclusion of the hearing, the trial court entered a
dispositional order placing juvenile on supervised probation for aperiod of twelve months dependent upon his compliance with several
court-ordered conditions.
At the outset, we note that juvenile's notice of appeal
indicates only that he is appealing from the trial court's
dispositional order entered on 25 September 2000. However,
juvenile focuses in his brief on alleged errors arising from the
trial court's adjudicatory order entered on 7 August 2000. “As a
general rule, the appellate court obtains jurisdiction only over
the rulings specifically designated in the notice of appeal as the
ones from which the appeal is being taken.” Chee v. Estes, 117
N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994). Nevertheless, this
Court may liberally construe a notice of appeal to determine it has
jurisdiction over a ruling not specified in the notice if the
appellant made a mistake and “the intent to appeal from the
judgment can be fairly inferred from the notice and the appellee
was not misled by the mistake.” Id. at 452, 451 S.E.2d at 350-51.
Here, we conclude that the intent to appeal from the adjudicatory
order could be inferred from the notice and the State was not
misled. Even assuming that the intent to appeal could not be
fairly inferred from the notice, we note that this Court has the
authority to review the merits of this appeal by certiorari
pursuant to N.C.R. App. P. 21.
First, juvenile assigns error to the trial court's denial of
his motion to dismiss. Specifically, juvenile argues that the
State failed to present sufficient evidence that he committed anyoffense. After careful review of the record, we conclude that
juvenile is precluded from raising this issue on appeal.
Here, three identical juvenile petitions were filed alleging
that
[t]he juvenile is a delinquent juvenile as
defined by G.S. 7A-517(12) in that on or about
the date of offense shown [between July and
October 1999] and in the county named above
[Union], the juvenile did unlawfully,
willfully, and feloniously engage in a sex
offense with [the victim], age 9 years, by
force and against that victim's will[.]
The offense charged here is in violation of
G.S[.] 14-27.5. Class C felony.
During the hearing, the victim testified that between July and
October 1999 juvenile “stuck his penis up [his] behind” in
juvenile's bedroom, at the creek near juvenile's home, and in
juvenile's living room. Thereafter, Dr. Perkins testified that the
victim told her that “he had had at least three episodes of rectal
sex with” juvenile in juvenile's bedroom; and Detective Rollins
testified that the victim reported only one episode of anal sex
which occurred in juvenile's bedroom. Both witnesses testified
that the victim did not report assaults occurring at the creek or
in juvenile's living room.
At the close of the State's evidence, juvenile filed a motion
to dismiss the charge related to the offense alleged to have
occurred at the creek. The trial court denied the motion.
Following the denial, juvenile presented evidence. Pursuant to
G.S. § 7B-2405(6), all rights afforded adult offenders are
conferred upon respondents in juvenile adjudicatory hearings withcertain exceptions not applicable in this case. “N.C.R. App. P.
10(b)(3) . . . provides that a motion to dismiss made at the close
of the State's evidence is waived if the defendant presents
evidence. The rule requires that a defendant must again move to
dismiss the charge at the close of all the evidence in order to
challenge the sufficiency of the evidence on appeal.” In re Davis,
126 N.C. App. 64, 66, 483 S.E.2d 440, 442 (1997). Here, juvenile
renewed his motion to dismiss the charge related to the creek at
the close of all the evidence. Again, the trial court denied the
motion.
After the parties' closing arguments, the trial court found
that
[i]t's clear to [the court] when these
petitions were drawn it was the intent that it
be in regard to three instances that allegedly
occurred at this juvenile's home. In regards
to those three instances [the court] find[s]
that the State has proven beyond a reasonable
doubt that he did commit one of these offenses
and the other two they have not proven.
In other words, the trial court found that the juvenile petitions
were not intended to be in regard to the offense that allegedly
occurred at the creek. Thus, we conclude that the trial court in
essence dismissed all charges related to the creek. Accordingly,
juvenile's argument in that regard is moot in that dismissal of the
offense allegedly committed at the creek has already occurred.
As to the offenses alleged to have occurred in juvenile's
home, we note that the record reflects that juvenile did not file
any motions for dismissal. “N.C.R. App. P. 10(b)(3) provides that
'[a] defendant in a criminal case may not assign as error theinsufficiency of the evidence to prove the crime charged unless he
moves to dismiss the action, or for judgment as in the case of
nonsuit, at trial.'” Davis, 126 N.C. App. at 66, 483 S.E.2d at
441. Since juvenile did not move to dismiss the charges related to
the offenses alleged to have occurred in his home during the
adjudicatory hearing, juvenile is precluded from raising the issue
as to the sufficiency of the evidence on appeal. See id. at 66,
483 S.E.2d at 441-42; see In re Clapp, 137 N.C. App. 14, 19, 526
S.E.2d 689, 693 (2000).
In his next assignment of error, juvenile argues that the
trial court committed reversible error by failing to state with
particularity which alleged event it found him responsible for --
the event in juvenile's bedroom, the creek, or juvenile's living
room. After careful review, we disagree.
As stated above, the trial court found based on proof beyond
a reasonable doubt that juvenile did attempt to commit one sexual
assault upon the victim in juvenile's home. Here, the victim
testified that one of the assaults occurred in juvenile's bedroom,
and both Dr. Perkins and Detective Rollins testified that the
victim reported that at least one sexual assault occurred in
juvenile's bedroom. While we are aware that there were
discrepancies in the victim's testimony, we conclude that there is
substantial evidence in the record to support the finding that at
least one attempted sexual offense occurred in juvenile's home.
Juvenile is correct in that the trial court did not state with
particularity in the adjudicatory order the alleged event for whichit found him responsible; however, it is clear from the record of
the hearing that the trial court was referring to the offense which
occurred in juvenile's bedroom as opposed to those events alleged
to have occurred at the creek and in juvenile's living room. Even
assuming arguendo that the trial court erred in failing to state
with particularity the event for which it found juvenile
responsible, the error was harmless. See G.S. § 1A-1, Rule 61.
“Where the court's decision is clear from the record, the absence
of a formal ruling is not prejudicial.” State v. Hicks, 79 N.C.
App. 599, 601, 339 S.E.2d 806, 808 (1986). Accordingly, we affirm
the trial court.
In sum, we conclude that juvenile is precluded by his failure
to move for dismissal during the adjudicatory hearing from raising
any issue as to the sufficiency of the evidence on appeal.
Additionally, the trial court's failure to state with particularity
which specific offense juvenile committed was harmless.
Affirmed.
Judges HUDSON and BRYANT concur.
Report per Rule 30(e).
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