In re J.F., 237 N.C. App. 218 (Nov. 18, 2014)

(1) In a delinquency case where the petitions alleged sexual offense and crime against nature in that the victim performed fellatio on the juvenile, the court rejected the juvenile’s argument that the petitions failed to allege a crime because the victim “was the actor.” Sexual offense and crime against nature do not require that the accused perform a sexual act on the victim, but rather that the accused engage in a sexual act with the victim. (2) The court rejected the juvenile’s argument that to prove first-degree statutory sexual offense and crime against nature the prosecution had to show that the defendant acted with a sexual purpose. (3) Penetration is a required element of crime against nature and in this case insufficient evidence was presented on that issue. The victim testified that he licked but did not suck the juvenile’s penis. Distinguishing In re Heil, 145 N.C. App. 24 (2001) (concluding that based on the size difference between the juvenile and the victim and “the fact that the incident occurred in the presumably close quarters of a closet, it was reasonable for the trial court to find . . . that there was some penetration, albeit slight, of juvenile’s penis into [the four-year-old victim’s] mouth”), the court declined the State’s invitation to infer penetration based on the surrounding circumstances.