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.
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
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.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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