IN THE MATTER OF: Mecklenburg County
No. 2002-J-744
V.A.M.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Margaret A. Force, for the State.
Hall & Hall, P.C., by Susan P. Hall and Douglas L. Hall, for
defendant-appellant.
HUNTER, Judge.
The district court adjudicated V.A.M. (“juvenile”) for two
acts of indecent exposure against the minor children A and B, and
for soliciting A to commit a crime against nature. The court found
insufficient proof to support a fourth charge that juvenile
solicited B to commit a crime against nature. In a separate
disposition order, the court placed juvenile on twelve months of
probation and ordered him to complete the juvenile sex offender
program and perform fifty hours of community service. Juvenile
appealed. For the reasons stated herein, we affirm the judgment of
the trial court, but remand for correction of a clerical error. Initially, juvenile claims a violation of his constitutional
right to due process, arguing that the transcript of his
adjudication hearing is so rife with inaudible or unintelligible
passages as to preclude meaningful appellate review. We have
thoroughly examined the transcript of juvenile's adjudication
hearing. Although there are numerous instances in the transcript
reflecting that portions of statements made in open court were
inaudible, these gaps generally involve individual words or
phrases, most of which are illuminated by context. Moreover,
inaudible passages of witnesses' testimony are effectively cured
either by counsel repeating the question to obtain a second
response on the record, or by counsel's request to the trial court
that the record reflect the nature of the witness' otherwise
inaudible response. Juvenile has failed to identify any particular
claim or issue which the transcript impedes his ability to raise on
appeal. See State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836,
837 (1984) (awarding new relief where flaws in the transcript
prevented review of jury instructions at death penalty phase of
murder trial). “Where '“the transcript, despite its imperfections,
is not so inaccurate as to prevent meaningful review by this
Court[,]”' the assertion that the recordation of juvenile court
proceedings are inadequate to protect juvenile's rights is properly
overruled.” In re Hartsock, 158 N.C. App. 287, 293, 580 S.E.2d
395, 399 (2003) (quoting State v. Hammonds, 141 N.C. App. 152, 168,
541 S.E.2d 166, 178 (2000), aff'd, 354 N.C. 353, 554 S.E.2d 645
(2001), cert. denied, 536 U.S. 907, 153 L. Ed. 2d 184 (2002)). Because we hold the hearing transcript is sufficient to allow for
meaningful review of the district court proceedings, we overrule
this assignment of error.
Juvenile next contends that the charges alleged in the
delinquency petition were not proven beyond a reasonable doubt. A
juvenile may challenge the sufficiency of the evidence by making a
motion to dismiss the petition in district court. See In re
Hartsock, 158 N.C. App. at 291, 580 S.E.2d at 398. Juvenile made
such a motion at the conclusion of the State's case-in-chief, which
the district court denied. Juvenile then, however, “presented
evidence and failed to renew his motion at the close of all the
evidence” and “is therefore precluded from challenging the
sufficiency of the evidence presented at trial.” In re Davis, 126
N.C. App. 64, 66, 483 S.E.2d 440, 442 (1997) (citing State v.
Elliott, 69 N.C. App. 89, 316 S.E.2d 632 (1984)); In the matter of
Rikard, ___ N.C. ___, ___, 587 S.E.2d 467, 470 (2003); N.C.R. App.
P. 10(b)(3).
Juvenile further avers the district court failed to indicate
in its order which facts had been proven to support the
adjudication of delinquency. He notes that the adjudication order
merely lists the various numbered counts of the 17 July 2002
petition as having been proved beyond a reasonable doubt, without
reference to the relevant criminal statute. As a result, juvenile
suggests the district court provided no means by which “this Court
can deduce what had been proven beyond a reasonable doubt.” Juvenile's challenge to the sufficiency of the district
court's findings of fact neither refers nor corresponds to either
of the two assignments of error in the record on appeal.
Therefore, it is not properly before this Court for review. We
observe that the trial court made the following oral findings
regarding the adjudication of delinquency:
Based on the evidence that has been presented,
I find that the State has met its burden as
shown that [juvenile] has committed two acts
of indecent exposure, one against A[] and one
against B[], and I adjudicate him delinquent
on both of those charges.
I also find that the State has shown
beyond a reasonable doubt that he has
committed one act of solicitation of a crime
against nature against A[]. I adjudicate him
delinquent on that charge.
Similarly, the district court's written adjudication order
identifies the petition by its filing date of 17 July 2002, lists
by name the offenses alleged in the juvenile petition, and finds
that they “have been proven beyond a reasonable doubt[.]” These
findings are sufficient to support an adjudication of delinquency.
See Rikard, ___ N.C. App. at ___, 587 S.E.2d at 469-70.
We note a clerical error in the 3 December 2002 adjudication
order. As set forth above, the district court found beyond a
reasonable doubt that juvenile committed two acts of indecent
exposure against A and B, and that he solicited A to commit the
crime against nature. The court further found, however, that “the
State has failed to meet its burden beyond a reasonable doubt” on
a second count of solicitation of a crime against nature against B.
The disposition order correctly reflects the district court'sadjudication of delinquency for two counts of indecent exposure and
one count of solicitation of a crime against nature. The written
adjudication mistakenly lists two counts of indecent exposure and
two counts of solicitation as having been proven beyond a
reasonable doubt. Because the hearing transcript and disposition
order plainly show the district court found juvenile responsible
for just one of the two acts of solicitation charged in the
petition, we remand for correction of the adjudication order to
reflect this finding. See In re D.D., 146 N.C. App. 309, 324-25,
554 S.E.2d 346, 356 (remanding for correction of adjudication
order), appeal dismissed and disc. review denied, 354 N.C. 572, 558
S.E.2d 867 (2001).
Affirmed; remanded for correction of clerical error.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***