IN THE MATTER OF:
C.J. Robeson County &nbs
p;
No. 03 J 492
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).
AFFIRMED.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e).
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