NO. COA02-828

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2003

    Appeal by juvenile from judgments entered 14 January 2002 and 11 February 2002 by Judge Wendy M. Enochs in Guilford County District Court. Heard in the Court of Appeals 20 February 2003.

    Roy Cooper, Attorney General, by Diane G. Miller, Assistant Attorney General, for the State.

    James M. Bell for juvenile-appellant.

    STEELMAN, Judge.

    Juvenile Sampson Goliath Fitzgerald appeals a trial court judgment adjudicating him delinquent and committing him to the Department of Juvenile Justice and Delinquency Prevention (DJJDP) for placement into a youth academy for an indefinite term greater than six months. He sets forth five assignments of error. For the reasons discussed herein, we affirm the trial court's decision.
    On 28 September 2001, the juvenile was in a high school class with the victim, A.A. The teacher was in a work room at the rear of the classroom during a portion of the class. The juvenile wassitting in a seat next to A.A. A.A. knew the juvenile, but not as a friend. During the class, the juvenile repeatedly asked A.A. if he could “finger her.” A.A. repeatedly told him no. The juvenile persisted in his questioning. A.A. finally relented and told him he could when they returned to the tables in the classroom.
    Near the end of the class period, the students returned to the tables. The juvenile again asked A.A. if he could finger her. She told him “no,” but the juvenile unzipped her pants and inserted his finger into her vagina. Another student, J.W., saw the juvenile put his hand in A.A.'s pants and heard her tell the juvenile to stop twice. It appeared to J.W. that A.A. was struggling with the juvenile and trying to push his hand away. When the bell rang, the juvenile removed his hand and left the classroom.
    That night, A.A. told her aunt and a friend about the incident at school. She subsequently told her mother and other people and reported the incident to a school counselor on 1 October 2001.
    At trial, A.A.'s testimony was corroborated by her mother, aunt, two classmates and two police officers. The juvenile testified that he propositioned A.A. but never touched her.
    The trial court adjudicated the juvenile delinquent for committing a felony sexual offense. He was committed to the DJJDP for placement in a youth program for an indefinite period greater than six months and ordered to undergo intensive treatment forsexual offending. The juvenile appeals.
    By his first assignment of error, the juvenile argues the trial court committed reversible error by denying his motion for a mistrial. We disagree.
    The decision to grant a motion for a mistrial is within the discretion of the trial court. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). A mistrial should be declared only if there are serious improprieties making it impossible to reach a fair, impartial verdict. Id. at 383, 462 S.E.2d at 35-36. Here, a witness testified that A.A. had contacted her via the internet and told her what had happened. The witness replied to A.A., “'Well, I really think you should do something about it because I know [the juvenile has] done it to other people too, including myself.'” The trial court allowed a motion to strike, but denied the motion for a mistrial. After a careful review of the transcript, we find no evidence that the trial court abused its discretion in denying the motion for a mistrial. This argument is overruled.
    By his second and third assignments of error, the juvenile argues the trial court erred by denying his motion to dismiss for insufficiency of the evidence as to the “against the victim's will” element. We disagree.
    In order to withstand a motion to dismiss charges contained ina juvenile petition, there must exist substantial evidence of each of the material elements of the offense alleged. In re Eller, 331 N.C. 714, 417 S.E.2d 479 (1992) (citing In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985)). The evidence must be considered in the light most favorable to the State, and the State is entitled to receive every reasonable inference of fact that may be drawn from the evidence. Id., (citing State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980)).
    A person is guilty of a sexual offense in the second-degree if the person engages in a sexual act with another person by force and against the will of the other person. N.C. Gen. Stat. § 14- 27.5(a)(1) (2001). A “sexual act” means the penetration, however slight, by any object into the genital or anal opening of another person's body. N.C. Gen. Stat. § 14-27.1(4) (2001). Here, the State presented evidence that the juvenile digitally penetrated A.A.'s vagina despite her repeated requests to stop. Further, there was evidence that another student saw A.A. trying to push the juvenile's hands away. Thus, there was substantial evidence of a sexual act against the will of A.A. This argument is overruled.
    By his fourth assignment of error, the juvenile argues the trial court erred in committing him to DJJDP at the dispositional stage of the hearing. We disagree.
    “Under the Juvenile Code, the trial court must consider thejuvenile's delinquency history level as well as the classification of the current offense in determining the appropriate disposition limit in a juvenile proceeding.” In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001) (citing N.C. Gen. Stat. § 7B-2508). “The delinquency history level for a delinquent juvenile is determined by calculating the sum of the points assigned to each of the juvenile's prior adjudications and probation status, if any[.]” N.C. Gen. Stat. § 7B-2507(a) (2001). In the instant case, it was uncontroverted that the juvenile had eight points, a high delinquency history. He was therefore subject to a Level 3 dispositional limit pursuant to section 7B-2508(e), which provides
A court exercising jurisdiction over a juvenile who has been adjudicated delinquent and for whom the dispositional chart in subsection (f) of this section prescribes a Level 3 disposition shall commit the juvenile to the Department for placement in a youth development center in accordance with G.S. 7B-2506(24). However, a court may impose a Level 2 disposition rather than a Level 3 disposition if the court submits written findings on the record that substantiate extraordinary needs on the part of the offending juvenile.

N.C. Gen. Stat. § 7B-2508(e) (2001). There were no findings to substantiate the juvenile's extraordinary needs. Further, the trial court no longer has to select the least restrictive disposition. In re Robinson, 151 N.C. App. 733, 736, 567 S.E.2d 227, 229 (2002). Absent an abuse of discretion, an appellate courtwill not disturb the trial court's choice between dispositional levels of punishment. Id. at 737, 567 S.E.2d at 229. An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision. Id. We do not find an abuse of discretion here. This argument is overruled.
    By his fifth and final assignment of error, the juvenile argues the trial court erred in requiring him to register as a sex offender because the trial court did not make a finding that he was a danger to the community. We disagree.
    Section 7B-2509 provides that:
In any case in which a juvenile, who was at least 11 years of age at the time of the offense, is adjudicated delinquent for committing a violation of G.S. 14-27.2 (first-degree rape), G.S. 14-27.3 (second degree rape), G.S. 14-27.4 (first-degree sexual offense), G.S. 14-27.5 (second degree sexual offense), or G.S. 14-27.6 (attempted rape or sexual offense), the judge, upon a finding that the juvenile is a danger to the community, may order that the juvenile register in accordance with Part 4 of Article 27A of Chapter 14 of the General Statutes.

N.C. Gen. Stat. § 7B-2509 (2001). In an order dated 8 October 2001, the trial court found that the juvenile “has demonstrated that he is a danger to property or persons.” In an order dated 11 February 2002, the trial court specifically found that it was “in the best interests of the community” for the juvenile to “beregistered pursuant to G.S. 7B-2509 as a sex offender.” We therefore hold that the trial court did not err in requiring the juvenile to register as a sex offender. This argument is overruled.
    AFFIRMED.
    Judges MCGEE and HUDSON concur.
    Report per Rule 30(e).

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