In Re R.N., 206 N.C. App. 537 (Aug. 17, 2010)

The trial court erred by denying the juvenile’s motion to dismiss a charge of crime against nature; as to a second charge alleging the same offense, defects in the transcript made appellate review impossible. The first count alleged that the juvenile licked the victim’s genital area. The evidence established that the juvenile licked her private, put his mouth on her private area, and "touch[ed] . . . on her private parts." Citing, State v. Whittemore, 255 N.C. 583 (1961), the court held that the evidence was insufficient to establish penetration. As to the second count, alleging that the juvenile put his penis in the victim’s mouth, the evidence showed that the juvenile forced the victim’s head down to his private and that she saw his private area. Under Whittemore, this was insufficient evidence of penetration. However, when a social worker was asked whether there was penetration, she responded: “[the victim] told me there was (Indistinct Muttering) penetration.” The court concluded that because it could not determine from this testimony whether penetration occurred, it could not meaningfully review the sufficiency of the evidence. The court vacated the adjudication and remanded for a hearing to reconstruct the social worker’s testimony.