Appeal by juvenile from adjudication order entered 26
April 2006 by Judge Herbert L. Richardson and disposition order
entered 19 June 2006 by Judge W. Jeffrey Moore in District Court,
Robeson County. Heard in the Court of Appeals 7 June 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Chris Z. Sinha, for the State.
Lisa Skinner Lefler for juvenile-appellant
Juvenile appeals from order adjudicating him delinquent for
committing indecent liberties between children, in violation of
N.C. Gen. Stat. § 14-202.2, and the subsequent dispositional order.
Because we conclude that the trial court did not unequivocally
state that it found the facts underlying the adjudication order to
be true beyond a reasonable doubt, we remand.
The State's evidence tended to show that juvenile masturbated
in front of a seven year-old girl (the victim) on 15 July 2005.
A juvenile petition, alleging that juvenile had taken indecent
liberties with the victim, was filed in Robeson County on or about
10 October 2005. The petition was heard on 6 and 18 April 2006.
Juvenile was adjudicated delinquent in Robeson County District
Court on 26 April 2006. On 8 June 2006, the trial court conducted a dispositional
hearing, entering a disposition order on 19 June 2006. The
disposition order placed juvenile on probation, under the
supervision of a court counselor, for up to twelve months, and
ordered the juvenile to cooperate with specified programs,
including a sex offender evaluation. The trial court also ordered
a curfew, restrictions on contact with anyone under age thirteen
without adult supervision, intermittent confinement of up to five
twenty-four hour periods, and testing for use of drugs or alcohol.
From the adjudication and disposition orders, juvenile appeals.
II. Motion to Dismiss
Juvenile first contends that the trial court erred by failing
to rule on defense counsel's motions to dismiss for insufficiency
of the evidence at the close of the State's evidence and at the
close of all the evidence. Alternatively, juvenile contends that
even if the trial court properly denied the motion to dismiss, the
evidence is insufficient to support an adjudication of delinquency.
We note that failure to obtain a ruling upon the party's
request, objection or motion[,] ordinarily results in waiver of
appellate review of the issue. N.C.R. App. P. 10(b)(1).
However, the record shows that after juvenile moved to dismiss
on 6 April 2006, the trial judge took the case under advisement,
and the case reconvened on 18 April 2006. Upon reconvening,
juvenile's trial counsel reminded the trial judge of the motion to
dismiss. The trial judge then advised counsel regarding severalcases he had discovered in his research. The trial judge then
So, therefore, the Court finds in this
particular case, that the act of exposing
themselves or masturbating in front of a child
within six to eight feet for purposes of
arousing and satisfying his sexual desire is
to meet the statutory requirement
of taking indecent liberties with a minor, and
the Court will so find.
We conclude that in making this statement, the trial court
denied juvenile's motion to dismiss for insufficiency of the
evidence. Therefore, we conclude that juvenile's actual argument
is that the trial court erred by failure to grant
the motion to
dismiss. Furthermore, the State did not raise the issue of waiver,
and fully contested the issue on its merits. Therefore, we will
consider the assignment of error on its merits.
Generally, a juvenile in an adjudication hearing has [a]ll
rights afforded adult offenders[,] subject to certain exceptions
not relevant to the case sub judice
. N. C. Gen. Stat. § 7B-2405
These rights include the right to have the
evidence evaluated by the same standards as
apply in criminal proceedings against adults.
Therefore, in order to withstand a motion to
dismiss the charges contained in a juvenile
petition, there must be substantial evidence
of each of the material elements of the
offense charged. The evidence must be
considered in the light most favorable to the
State, and the State is entitled to every
reasonable inference of fact which may be
drawn from the evidence.
In re Bass
, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985)
(citations and internal quotation marks omitted).
Juvenile's own brief essentially concedes that the State
presented sufficient evidence to survive the motion to dismiss.
Juvenile argues that [t]here was no evidence that B.E. did
anything sexual, other than the other child's testimony. However,
our Supreme Court has held that [t]he uncorroborated testimony of
the [child] victim is sufficient to convict under N.C.G.S. §
14-202.1 [taking indecent liberties with children] if the testimony
establishes all of the elements of the offense. State v. Quarg
334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993).
The essential elements of indecent liberties between children
relevant to the case sub judice
are: (1) a perpetrator under age
16, (2) who willfully takes any immoral, improper, or indecent
liberties with a child, (3) who is at least three years younger
than the perpetrator, (4) for the purpose of arousing or gratifying
sexual desire. N.C. Gen. Stat. § 14-202.2(a)(1) (2005).
The State presented evidence that the victim was seven years
old, and that the juvenile was fifteen years old when the incident
in question took place. This evidence satisfies the first and
third elements. The State also presented evidence that B.E.
masturbated in front of victim. This evidence satisfies the second
and fourth elements. Accordingly, we conclude that the State
presented substantial evidence of each element of indecent
liberties between children and that juvenile was the perpetrator of
the offense. The motion to dismiss was therefore properly denied.
III. Standard of Proof
Juvenile next contends that the trial court erred when it
adjudicated him delinquent by clear, cogent and convincing
evidence, instead of beyond a reasonable doubt. We agree.
The adjudication order contains the following relevant
The following facts have been proven beyond a
1. That on or about July 15, 2005 the
juvenile, [B.E.] did unlawfully and willfully
commit indecent liberties between children
against [the victim], a child who was at least
three (3) years younger than the juvenile,
being an offense in violation of G.S.
14-202.2, by clear, cogent & convincing
The underlined portion of the above finding is the pre-printed
wording of a standard form Juvenile Adjudication Order
(Delinquent), AOC-J-460, New 7/99. The remainder of the finding
was typed into a blank on the form.
The State agrees with juvenile's contention that the proper
standard of proof for a juvenile to be adjudicated delinquent is
beyond a reasonable doubt. However, the State contends that
juvenile essentially waived his right to object to this error by
his failure to obtain a ruling on his motion to dismiss made on 6
April 2006, when the case reconvened on 18 April 2006.
Alternatively, the State cites In re Eades
, 143 N.C. App. 712,
713, 547 S.E.2d 146, 148 (2001), to contend that an oral statement
of the standard of proof is sufficient, and cites In re Mitchell
87 N.C. App. 164, 166, 359 S.E.2d 809, 811 (1987), to contend thatan oral statement of the standard of proof is unnecessary if the
standard of proof is included in the written order. The State
further argues that the trial judge's statement in response to
juvenile's motion to dismiss at the close of the State's evidence
(Well, I'll reserve ruling on that to [sic] at the conclusion of
all that. And then we're rehear based on -- beyond a reasonable
doubt, we'll do at that point.), and a statement by juvenile's
trial counsel when he renewed his motion to dismiss at the close of
all evidence (And if in some way you should rule against me, then
obviously we would need to come back and I'm going to argue
reasonable doubt.), together with the pre-printed words on the
standard form, show undeniably that the trial court found the
facts beyond a reasonable doubt. The State finally argues that the
foregoing shows that the words clear, cogent and convincing
evidence, which were included on the adjudication order after the
correct standard of beyond a reasonable doubt was a pure
administrative error, which should be ignored by this Court as
We first reject the State's contention that juvenile failed to
preserve his assignment of error regarding the standard of proof
for review. Certainly, as noted by the State, the trial judge
never stated in open court that he would use clear, cogent and
convincing evidence as a standard of proof. Therefore, juvenile
would have been unaware of this error and unable to object until he
received the completed adjudication order, from which he duly
appealed. We also reject the State's contention that the ambiguity in
the adjudication order is a pure administrative error. One of
our basic constitutional rights is that the State prove all
elements of a criminal charge, including an juvenile delinquency
petition, beyond a reasonable doubt. In re Vinson
, 298 N.C. 640,
657, 260 S.E.2d 591, 602 (1979). This constitutional right is
codified in the North Carolina Juvenile Code, which provides that
[t]he allegations of a petition alleging the juvenile is
delinquent shall be proved beyond a reasonable doubt. N.C. Gen.
Stat. § 7B-2409 (2005). Further, [i]f the court finds that the
allegations in the petition have been proved as provided in G.S.
7B-2409, the court shall
so state. N.C. Gen. Stat. § 7B-2411
(2005) (emphasis added). Accordingly, this Court has previously
held that the provisions of N.C. Gen. Stat. § 7B-2411 are
mandatory and that it is reversible error for a trial court to fail
to state affirmatively that an adjudication of delinquency is based
upon proof beyond a reasonable doubt. In re Walker
, 83 N.C. App.
46, 47, 348 S.E.2d 823, 824 (1986).
The trial court's standard of proof in a juvenile delinquency
proceeding must be reflected in the record, either orally or in
writing. In re Rikard
, 161 N.C. App. 150, 154, 587 S.E.2d 467, 469
(2003). While the trial court may choose whether to state its
standard of proof either orally or in writing, protection of a
fundamental constitutional right should not be lightly inferred
from fragments of a long and sometimes ambiguous record. State v.
, 131 N.C. App. 350, 364, 507 S.E.2d 577, 586 (1998), aff'dper curiam
, 350 N.C. 586, 516 S.E.2d 382, cert. denied
, 528 U.S.
944, 145 L. Ed. 2d 280 (1999).
In the case sub judice
, the State is asking us to infer from
an ambiguous record that the trial court found that the allegations
of the petition had been proved beyond a reasonable doubt.
However, we are not able to ascertain the standard of proof from
the record. The trial court's passing comment quoted above is
simply not adequate to show that the adjudication of delinquency
was based upon proof beyond a reasonable doubt. Nor is the trial
court's adjudication order, which found beyond a reasonable doubt
[that defendant violated] G.S. 14-202.2, by clear, cogent &
Furthermore, there was substantial conflicting evidence
regarding the allegations against juvenile. It is apparent from
the trial judge's comments during the hearing and his taking the
case under advisement to consider it more carefully that he could
have had some reasonable doubt regarding juvenile's guilt.
Finally, we find an elementary principle of contract
interpretation instructive in this case. When a contract is
partly written or typewritten and partly printed any conflict
between the printed portion and the [type] written portion will be
resolved in favor of the latter. National Heater Co., Inc. v.
Corrigan Co. Mech. Con., Inc.
, 482 F.2d 87, 89 (8th Cir. 1973).
The words on the order which indicate that the State has failed
satisfy the required standard of proof, would be, according to theelementary principles of contract law, controlling as to the
The trial court must unequivocally state the standard of proof
in its order pursuant to N.C. Gen. Stat. § 7B-2411 (2005). Because
the adjudication order contains an ambiguity which this Court
cannot resolve, we conclude that the trial court erred.
Because the trial court has already made its determinations as
to the credibility of the witnesses and has weighed the evidence,
we do not require a new hearing. Rather, we remand to the trial
court for clarification of the standard of proof used in the
adjudication order. See Minter v. Minter
, 111 N.C. App. 321, 329,
432 S.E.2d 720, 726, disc. review denied
, 335 N.C. 176, 438 S.E.2d
If the trial court did find that the facts underlying the
adjudication were proved beyond a reasonable doubt, it must enter
an amended order so stating. If the trial court did not find that
these facts were proved beyond a reasonable doubt, the trial court
must dismiss the petition with prejudice and vacate the disposition
order based thereupon. N.C. Gen. Stat. § 7B-2411.
Judges ELMORE and STEELMAN concur.
*** Converted from WordPerfect ***