In re J.D., ___ N.C. ___, ___ S.E.2d ___ (Dec. 18, 2020)

In this juvenile case, the trial court erred by denying the respondent’s motions to dismiss charges of second-degree sexual exploitation of a minor and first-degree forcible sexual offense but did not err by accepting his admission of attempted larceny in an incident unrelated to the alleged sex crimes.

The State relied on an acting in concert theory in proceeding against the respondent on the second-degree sexual exploitation of a minor charge because all testimony was that a person other than the respondent made a video recording of the respondent apparently engaging in non-consensual sexual contact with the victim.  The court reviewed the evidence presented at trial and found it insufficient to show that the respondent and the person who recorded the video acted with a common plan or scheme to make the recording.  The court stated that the evidence showed that the respondent “did not wish to be recorded and that [the other person’s] decision to record the incident was of his own volition.”

The evidence of penetration was insufficient to support the first-degree forcible sexual offense charge allegedly based on anal intercourse as the victim unambiguously and explicitly denied that anal penetration occurred and the State did not present sufficient other evidence corroborating the allegation of penetration.  The court rejected the State’s argument that a witness’s description of the incident as the respondent and the victim “doing it” was sufficient evidence of penetration and noted that at the adjudicatory hearing the State had conceded “that there was not evidence of penetration.”

There was a sufficient factual basis to support the respondent’s admission to an unrelated charge of attempted misdemeanor larceny of a bicycle where the respondent was found near the crime scene with two people fitting a witness’s description of the suspects, had bolt cutters in his backpack, and denied committing but expressed some knowledge of the larceny to an investigating officer.  Though the trial court did not err by accepting the respondent’s admission to attempted misdemeanor larceny, the court could not remand the matter for a new disposition hearing to account for its rulings related to the sufficiency of the evidence of the sex crimes because the trial court’s juvenile jurisdiction terminated when the respondent turned eighteen years old while the appeal was pending. 

Justice Newby concurred in part and dissented in part, expressing the view that the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and that the matter should be remanded for entry of an amended adjudication for that offense.