An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1575


Filed: 02 August 2005

    C.J.                        Robeson County          &nbs p;                   No. 03 J 492


    Appeal by juvenile from adjudication and disposition orders entered 4 June 2004 and 9 August 2004 by Judge James Gregory Bell in Robeson County District Court. Heard in the Court of Appeals 16 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

    Michelle FormyDuval Lynch, for juvenile-appellant.

    STEELMAN, Judge.

    This case arises out of an incident which occurred in November of 2003. A nine year old boy, C.J. (the juvenile), spent the night at a friend's house (Mickey), along with a six year old boy, C.M. (the victim). According to C.M., he and the juvenile slept on the floor next to Mickey's bed (where Mickey was sleeping). At some point during the night, C.M. testified, the juvenile kissed him, touched his penis, and put his mouth on his penis for “one minute.” C.M. further testified that he put his mouth on the juvenile's penis, and that the juvenile inserted a penny in his “butt”. C.M. admitted in court that he was scared while he was testifying. C.M.'s testimony was at times contradictory. The juveniletestified and claimed that C.M. initiated physical contact with him, but that he told C.M. to leave him alone, and that nothing of a sexual nature occurred between them. The juvenile was adjudicated delinquent based on a finding that he had committed a crime against nature on 1 June 2004. On 3 August 2004 the trial court entered its disposition order placing the juvenile on probation for twelve months, and further ordered that the juvenile and his mother comply with additional conditions, including inter alia: mental health evaluation, sex offender based counseling, and following the recommendations of his court counselor. From this adjudication, juvenile appeals.
    In his first argument, juvenile contends that the juvenile petition in this case alleging a crime against nature is fatally defective and requires that the adjudication of delinquency be vacated. We disagree.
    “'Notice must be given in juvenile proceedings which would be deemed constitutionally adequate in a civil or criminal proceeding; that is, notice must be given the juvenile and his parents sufficiently in advance of scheduled court proceedings to afford them reasonable opportunity to prepare, and the notice must set forth the alleged misconduct with particularity.'” State v. Drummond, 81 N.C. App. 518, 520, 344 S.E.2d 328, 330 (1986), quoting In re Burrus, 275 N.C. 517, 530, 169 S.E. 2d 879, 887 (1969). “An indictment which charges that defendant did unlawfully, wilfully and feloniously commit the infamous crime against nature with a particular man, woman or beast is sufficient[to charge a crime against nature].” State v. O'Keefe, 263 N.C. 53, 54, 138 S.E.2d 767, 768 (1964). In the instant case, the juvenile petition in question states that he is delinquent because on the date in question he unlawfully, willfully and feloniously committed “the abominable and detestable crime against nature with [the victim]. The offense charged here is in violation of G.S. 14-177. Crime against nature.” The juvenile requests that we ignore or overrule this precedent established by our Supreme Court. We have neither the authority nor the inclination to do this.
    The juvenile quotes language in O'Keefe stating that where a defendant “feels that he may be taken by surprise or that the indictment fails to impart information sufficiently specific as to the nature of the charge, he may before trial move the court to order a bill of particulars to be filed. ” O'Keefe, 263 N.C. at 55, 138 S.E.2d at 768. The juvenile argues that he requested a bill of particulars, that one was not provided to him, and that under O'Keefe this constitutes a deficiency in the juvenile petition. However, an indictment is either sufficient or insufficient on its face, and the inclusion or exclusion of a bill of particulars cannot affect this status. State v. Thornton, 251 N.C. 658, 660, 111 S.E.2d 901, 902 (1960). If the juvenile believed he was prejudiced by the trial court's response to his motion for a bill of particulars, he was required to preserve that issue by separate assignment of error in the record. State v. White, 82 N.C. App. 358, 360, 346 S.E.2d 243, 245 (1986). This he failed to do. This argument is without merit.    In his second argument, the juvenile contends the trial court erred in overruling his objections to the State's asking leading questions of the victim. We disagree.
    It is undisputed that the State asked leading questions to the seven year old victim C.M. when inquiring about the sexual allegations against the juvenile. Generally, leading questions are improper on direct examination. State v. Harding, 110 N.C. App. 155, 160, 429 S.E.2d 416, 420 (1993). The appropriate standard of review on appeal is abuse of discretion. “It is within the sound discretion of the trial judge to allow leading questions on direct examination, and in cases involving children or an inquiry into delicate subjects such as sexual matters, the judge is accorded wide latitude to exercise that discretion.” State v. Chandler, 324 N.C. 172, 190, 376 S.E.2d 728, 739 (1989). Our appellate courts have repeatedly found no abuse of discretion when the State asked leading questions to child victims of sexual abuse, including children older that the seven year old victim in the instant case. See State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978); State v. Dalton, 96 N.C. App. 65, 384 S.E.2d 573 (1989); State v. Sturgis, 74 N.C. App. 188, 328 S.E.2d 456 (1985).
    In this case, a seven year old boy was testifying concerning allegations that the juvenile performed oral sex on him and inserted a penny in his anus. We hold that the trial court did not abuse its discretion in allowing the State to ask leading questions of this child concerning these sensitive sexual acts. Further, this was a bench trial, with the trial court sitting as the factfinder. In such a situation, it is presumed that the trial court ignores any incompetent evidence. In re Hartsock, 158 N.C. App. 287, 290, 580 S.E.2d 395, 397-98 (2003). It is the appellant's burden to rebut this presumption. Id., 580 S.E.2d 395, 398. Juvenile has failed to meet this burden in this case. This argument is without merit.
    In the juvenile's third argument, he contends that the trial court erred in denying his motion to dismiss the charge at the close of all the evidence. We disagree.
    “The question is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion to dismiss should be allowed. This is true even though the suspicion so aroused by the evidence is strong.” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (citations omitted). “[T]he State is entitled to every reasonable intendment and every reasonable inference to be drawn from the evidence; contradictions and discrepancies do not warrant dismissal of the case -- they are for the [finder of fact] to resolve.” Id. at 67, 296 S.E.2d at 653. “The court is to consider all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State. The defendant's evidence, unless favorable to the State, is not to be taken into consideration.” Id.
    The juvenile argues that there was insufficient evidence of the required elements of the offense of crime against nature, specifically that there was no evidence of penetration by or of a sexual organ. “The essential element of the so-called 'crime against nature, with mankind' is 'some penetration, however slight, of a natural orifice of the body.' Our Supreme Court has previously stated that 'penetration need not be to any particular distance.'” In re Heil, 145 N.C. App. 24, 29, 550 S.E.2d 815, 819- 20 (2001) (citations omitted). “[T]he offense is broad enough to include all forms of oral and anal sex ....” State v. Stiller, 162 N.C. App. 138, 140, 590 S.E.2d 305, 307 (2004).
    In the instant case, the testimony of the victim was sufficient for the trial court to reasonably conclude the juvenile placed his penis in the victim's mouth, and placed the victim's penis in his mouth. This evidence of oral sex, even if there was contradictory evidence admitted at the hearing, was sufficient to survive the juvenile's motion to dismiss the charge of crime against nature. See In re Heil, 145 N.C. App. 24, 550 S.E.2d 815, (2001). This argument is without merit.
    In his fourth argument, the juvenile contends that the trial court committed prejudicial error in conducting a disposition hearing and entering a disposition order without first consideringa predisposition report pursuant to N.C. Gen. Stat. § 7B-2413 (2004). We disagree.
    N.C. Gen. Stat. § 7B-2413 states in relevant part:
        The court shall proceed to the dispositional hearing upon receipt of the predisposition report. A risk and needs assessment, containing information regarding the juvenile's social, medical, psychiatric, psychological, and educational history, as well as any factors indicating the probability of the juvenile committing further delinquent acts, shall be conducted for the juvenile and shall be attached to the predisposition report. In cases where no predisposition report is available and the court makes a written finding that a report is not needed, the court may proceed with the dispositional hearing.

In the instant case, there is no indication in the record that the trial court considered any predisposition report, and the trial court did not make a finding of fact that a predisposition report was not necessary. This is a violation of N.C. Gen. Stat. § 7B- 2413.
    The juvenile did not object to the lack of a predisposition report at the disposition hearing held 3 August 2004. In fact, at the end of the adjudication hearing 1 June 2004, the juvenile objected to the State's request for a continuance to prepare for disposition stating “certainly they know everything else they need to know and in fact, they probably have a pretty good guess about what the recommendations are going to be. We could just do it [disposition] without spending the time doing the evaluation. We'd ask that disposition go forward today.”    “As a general rule, defendant's failure to object to alleged errors by the trial court operates to preclude raising the error on appeal.” State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (citations omitted). However, “when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court's action is preserved, notwithstanding defendant's failure to object at trial.” Id. (emphasis added).
    In light of the juvenile's request at the adjudication hearing to proceed directly to disposition, though no predisposition report had been prepared, and due the complete absence of any argument in his brief as to how the lack of a predisposition report has prejudiced him, we hold that this error was harmless. This argument is without merit.
    Because the juvenile has not argued his other assignments of error in his brief, they are deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
    Judges HUDSON and JACKSON concur.
    Report per Rule 30(e).

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