In the Matter of J.D., ___ N.C.App.___ (August 20, 2019)

• Facts: Zane, a guest at J.D.’s house for a sleepover, awoke to find his pants pulled down and J.D. behind him. J.D. also had his pants down and was engaged in a thrusting motion behind Zane. Zane testified that he believed someone was holding his legs and that he felt J.D.’s privates on his butt, although he did not feel penetration. Two other boys, Dan and Carl, were also present for the sleepover. Dan videotaped some of the incident on his phone. J.D. can be heard on the video telling Dan not to record the incident. At the end of the video, J.D. gives a thumbs up. The video eventually ended up on Facebook. J.D. was adjudicated delinquent for committing first-degree forcible sexual offense and second-degree exploitation of a minor. Prior to disposition, J.D. admitted to attempted larceny of a bicycle in a separate incident. The trial court entered a Level 3 disposition, committing J.D. to a YDC, and denied J.D.’s request to be released pending his appeal.
• Second-degree sexual exploitation of a minor:  The evidence was insufficient to support this charge as a matter of law. There was no evidence that J.D. took an active role in the production or distribution of the video, as required for this offense. There is no evidence that J.D. acted with Dan as part of a common plan or purpose. Instead, the evidence shows that J.D. did not want to be filmed as he explicitly told Dan to stop. There is no evidence that J.D. wanted the video to be made or that he was the one who distributed it. Adjudication for this charge should be vacated.
• First-degree forcible sexual offense: This offense requires that the juvenile engaged in a sexual act with another person by force and against the will of the other person. A sexual act requires penetration, however slight. The victim specifically testified that penetration did not occur. The circumstantial evidence provided by the video cannot overcome the direct testimony of the victim. Therefore, the evidence was not sufficient to show that penetration occurred. The trial court erred in denying J.D.’s motion to dismiss this charge.
• Attempted larceny: There was not a sufficient factual basis for J.D.’s admission to this offense. There was not a showing of intent to steal, or assist others in stealing, the bicycle. The adjudications for attempted larceny should be vacated.
• Right of confrontation:  While J.D.’s attorney failed to object to the entry of out-of-court statements made by Dan and Carl during adjudication, the issue is still properly before the court on appeal because G.S. 7B-2405 requires the court to protect the rights of juveniles during a delinquency hearing, including the right of confrontation. The right to appeal is preserved when a trial court acts contrary to a statutory mandate and the juvenile is thereby prejudiced.

The out-of-court statements by Dan and Carl were used to overcome the testimony of the victim indicating that penetration did not occur. The State referenced the statements numerous times in closing statements. The additional evidence provided in these statements, that penetration occurred, was prejudicial to J.D.’s defense. The State failed to prove that admission of this testimony was harmless beyond a reasonable doubt.

• Disposition errors: The disposition and commitment orders did not contain adequate written findings. The trial court did not adequately explain its decision to ignore the evaluations and recommendation by the court counselor and CHA, which both recommended a Level 2 disposition. It also did not explain how its findings satisfied the five factors required by G.S. 7B-2501(c).
• Confinement pending appeal: The trial court’s order that only recited allegations made by defense counsel and the State does not satisfy the requirement that the court list compelling reasons for continuing J.D.’s confinement while the appeal was pending, as required by G.S. 7B-2605. There were also no compelling reasons stated on the Appellate Entries form.

Dissent

• First-degree forcible sexual offense: Penetration can be proved by circumstantial evidence alone. The video provides such circumstantial evidence through the position and proximity of J.D. and Zane and J.D.’s constant thrusting motion. J.D.’s own statement is also evidence of penetration, as he stated that he had a semi-erect penis, it was pressing against Zane’s anus, and he was thrusting. He also described the incident as “intercourse.” The trial court appropriately weighed this evidence against Zane’s testimony and found that at least slight penetration occurred. It is not the job of the appellate court to re-weigh the evidence. Zane’s testimony also provided sufficient evidence that J.D. acted with force and against Zane’s will. Finally, the tone of the conversation on the video between Dan and J.D. as well as the nature of their actions on the video support the inference that J.D. was aided and abetted by Dan. There was sufficient evidence to deny the motion to dismiss this charge.
• Sexual exploitation of a minor: The evidence, viewed in the light most favorable to the State, supports an inference that J.D. acted in concert with Dan in recording the incident. J.D.’s tone, the position of the cell phone, and J.D.’s action of giving a thumbs up at the end of the recording all support the inference that J.D. had knowledge and approved of the recording and that he was working with Dan to make the video.
• Right of confrontation: Based on the harmless beyond a reasonable doubt standard, inclusion of the statements of Dan and Carl suggesting that penetration occurred does not justify a new hearing. The trial court based its determination that penetration occurred on the video and J.D.’s own statements and not on these statements.
• Attempted larceny admission: the recitation of facts that the bicycle was stolen by two boys and with bolt cutters, J.D. was found with two boys matching the description of the boys who stole the bike, J.D. admitted to knowing about the larceny, and the bolt cutters used in the larceny were found in J.D.’s possession laid a sufficient factual basis for accepting J.D.’s admission to the larceny.
• Disposition order: the trial court made multiple findings of fact that addressed all of the five factors required to be addressed in orders of disposition under G.S. 7B-2501. Adequate evidence was provided to support those findings. The trial court’s choice between a Level 2 or Level 3 disposition should only be disturbed on a showing that the decision was manifestly unsupported by reason. Evidence of J.D.’s good behavior does not support the conclusion that the trial court’s decision to impose a Level 3 disposition was unreasonable.
• Confinement pending appeal: While compelling reasons are required to justify denial of a juvenile’s release pending appeal, those reasons do not need to be verbose. The trial court’s written acknowledgement that J.D. had a lack of structure in the home, continued with delinquent behavior following this adjudication, and that he was to remain at the YDC for the protection of the public was sufficient.