IN THE MATTER OF: E.S., Durham County
Juvenile No. 05 J 95
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Barbara A. Shaw, for the State.
Kevin P. Bradley, for juvenile-appellant.
JACKSON, Judge.
E.S. (“juvenile”) was adjudicated delinquent for committing a
sexual battery upon his female classmate, L.C., in their math
classroom at Carrington Middle School on 23 February 2005. In a
Level 1 disposition entered 10 June 2005, the district court placed
juvenile on twelve months of probation and ordered him to undergo
a sex offender specific evaluation and perform fifty hours of
community service. Juvenile filed timely notice of appeal from the
disposition order.
The State adduced evidence tending to show that juvenile, who
was fourteen years of age at the time of the incident, approached
complainant from behind, reached under her arm with his left hand,
and grabbed her left breast in the course of walking to the pencil
sharpener during their math class. Juvenile smirked atcomplainant, who then reported the incident to her teacher.
In class the following day, juvenile displayed a hand-drawn
picture of a naked boy with spiked hair and an earring resembling
himself having sex with a naked girl with braided hair resembling
complainant. The boy was depicted as standing behind the girl with
his hand on her breast. The drawing was admitted into evidence at
the delinquency hearing and was included in the record on appeal.
Juvenile testified that he inadvertently brushed complainant
while attempting to move past her in a narrow space in the
classroom. Although he only “kind of hit [complainant] and touched
her on the shoulder[,]” juvenile averred that “she thought that
[he] wanted to touch her breasts.” Regarding the drawing, juvenile
explained that he “did it just kind of joking around, playing
around” without intending any harm. When asked if the drawing
portrayed him and complainant, he replied, “No, only her. The guy
was some guy.”
The trial judge found beyond a reasonable doubt that juvenile
committed a sexual battery upon complainant by touching her breast.
In announcing her adjudication in open court, the trial judge found
that “the very graphic, vulgar drawing that [he] drew. . . .
without any doubt, shows his touching [was] for sexual
gratification.”
In his sole argument on appeal, juvenile claims the evidence
was insufficient to support an adjudication of sexual battery,
absent substantial evidence that his purpose in grabbing
complainant's breast was sexual gratification. See N.C. Gen. Stat.§ 14-27.5A(a) (2005). He argues that the drawing he displayed on
the day after the incident did not prove that his intent was
“sexual and not merely an inappropriate attempt at humor or to
irritate a classmate.”
Juvenile's assignment of error is not properly before this
Court. Pursuant to the provisions of North Carolina General
Statutes, section 7B-2405(6) (2005), a juvenile is “entitled to
have the evidence evaluated by the same standards as apply in
criminal proceedings against adults.” In re Dulaney, 74 N.C. App.
587, 588, 328 S.E.2d 904, 906 (1985). Accordingly, as in criminal
appeals pursuant to North Carolina Rule of Appellate Procedure
10(b)(3), “a motion to dismiss made at the close of the State's
evidence is waived if the [juvenile] presents evidence.” In re
Davis, 126 N.C. App. 64, 66, 483 S.E.2d 440, 442 (1997). Here,
juvenile made a motion to dismiss at the conclusion of the State's
evidence. After the trial court denied his motion, juvenile
testified in his own defense but did not renew his motion to
dismiss at the conclusion of all the evidence. Juvenile “is
therefore precluded from challenging the sufficiency of the
evidence presented at trial.” Id. (citing State v. Elliott, 69
N.C. App. 89, 316 S.E.2d 632, appeal dismissed and disc. review
denied, 311 N.C. 765, 321 S.E.2d 148 (1984)).
Juvenile's suggestion that his “closing argument combined a
motion to dismiss the sexual battery charge with argument to
acquit” is not supported by the hearing transcript. At no time
during his closing argument did juvenile's counsel ask the court todismiss the delinquency petition; nor did counsel obtain any ruling
from the trial court on a motion to dismiss. Rather, counsel “just
ask[ed] that [the trial court] find him not delinquent on [the]
charge, Your Honor.” While we note counsel's averment, several
paragraphs into his closing argument, that “in the light most
favorable to the State, what we have right here today is basically
a quick grope” not amounting to a sexual battery, this mere
assertion was insufficient to renew his motion to dismiss at the
conclusion of the evidence as required by Rule 10(b)(3).
The record on appeal includes additional assignments of error
not addressed by juvenile in his brief to this Court. Pursuant to
Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure,
they therefore are deemed abandoned.
Appeal dismissed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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