In the Matter of S.A.A., __ N.C. App. __, 795 S.E.2d 602 (2016)

In a simple assault and sexual battery case, the trial court erred by denying the juvenile’s motion to dismiss the sexual battery petitions for insufficient evidence of a sexual purpose. The 13-year-old juvenile was adjudicated delinquent for two counts each of simple assault and sexual battery for approaching two girls on Halloween night and draping his arms around their shoulders in order to rub a glowing liquid on their shirts. One of the girls testified the juvenile touched her “boobs” over her sweatshirt.

Issue Preservation. The juvenile’s argument regarding the insufficiency of the evidence was not properly preserved because his attorney did not move to dismiss at the close of all the evidence. However, because the court concluded there was insufficient evidence to support the sexual battery adjudication, it invoked Rule 2 to review the merits of the appeal to prevent manifest injustice.

Sufficiency of the Evidence. The state presented insufficient evidence that the juvenile touched the girls’ breasts for a sexual purpose. When children are involved, the purpose cannot be inferred from the act itself. There must be “evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting.” In this case, the juvenile was 13-years old, the girls were both 11, and all three attended the same middle school. The juvenile denied ever touching the girls' breasts, which was corroborated by a witness. The incident occurred on a public street around numerous other juveniles who were trick or treating and acting “crazy,” as kids might be expected to do on Halloween night. Also, no evidence suggested that the juvenile made any remarks to the girls on that night or on previous occasions to suggest that he had a sexual motivation for touching them.