In re A.A.P. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1051
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
In the matter of:
A.A.P.
Onslow County
No. 10JB109
Appeal by juvenile from orders entered 26 April 2013 by
Judge Sarah C. Seaton in Onslow County District Court. Heard in
the Court of Appeals 5 February 2014.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Stephanie A. Brennan, for the State.
Mary McCullers Reece, for the juvenile.
DILLON, Judge.
The juvenile (“Adam”)1 appeals from a Level 2 disposition
order entered 26 April 2013 adjudicating him delinquent. The
basis of the disposition was two counts of sexual battery, and
the disposition included fourteen days intermittent confinement
and nine months of probation. We affirm.
1
A pseudonym.
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The evidence of record tends to show that Adam, who was
fourteen years old and in seventh grade, rode the school bus
with Tucker,2 a thirteen-year-old eighth grader, and Tom, a ten-
year old.
Tucker described Adam as someone whom he knew from riding
the bus, and whom he would only see “just down the hallway” at
school. Tucker never saw Adam outside of school. Tucker
testified that Adam grabbed his penis outside his clothes with
his hand on a number of occasions. Tucker provided a written
statement: “A guy I sit by on the bus keeps touching me and
grabbing me in my private parts and has caused me to switch
seats while the bus was moving or fall out of my seat. I
appreciate it if you did not write [him] up and please do not
tell him it was me.” Three or four other students saw the
foregoing happen.
Another thirteen-year-old eighth grader, named Ben,
testified that he saw Adam go behind Tom, who was Ben’s brother,
and pretend to “rape him from behind” on multiple occasions.
Specifically, Ben said Adam was “mimicking the movements of
inserting his parts into [Tom]’s behind.” According to Ben,
Adam said, “Oh look I’m raping him.” Ben also affirmed that
2
Pseudonyms are used throughout this opinion.
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Adam “reached his arm around” his brother, Tom, and “grabbed
[him] on the chest[,]” and Ben described the touching as
“rubbing.” Ben said he had never seen Adam and Tom talking
before the incidents, and when asked whether they were friends,
Ben said, “they’re sort of neutral[.]” Ben provided the
following written statement:
When me and my brother, [Tom], get on the
bu[s] in the afternoon, there’s this kid
named [Adam] who yesterday said that he was
molesting [Tom] and touching his nipples.
This happened once before except he was
pretending to have jabbing [(sic)] his
wiener into [Tom’s] butt. He has also
spanked [another kid] but many kids have
seen it but some will laugh at the actions.
I’m very concerned about these actions
because [Tom] is young and these kind of
things [(sic)] can haunt someone for the
rest of their life.
Testimony also showed that Adam “was making sexual sounds”
during this incident.
The assistant principal testified that Tucker told her “he
was being touched inappropriately by [Adam] on the bus.” When
the assistant principal asked Tucker why Adam touched him,
Tucker said, “you know, messing around, just cutting up.” In
addition to the foregoing incidents, the assistant principal
also testified to other incidents, one in which Adam “pants
another student[,]” meaning that he “pull[ed] their . . . gym
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shorts down[,]” and another called the “ball bagging game” that
involved “hitting, . . . grabbing, pulling . . . the male
genitals of another person.” When specifically asked whether
she thought this behavior was horseplay, the assistant principal
replied, “I think it was probably intended that way, but it was
not perceived or received that way.”
Adam described his behavior as “just a game that other boys
do[,] . . . a game called nut check[,]” where “we both hit each
other inside the nut part[,]” and that “it wasn’t nothing like
towards for pleasure or anything it was just something we did,
sir.” Adam also said, “I never grabbed his penis, I mean, I hit
him but I never grabbed his penis.”
At the close of the State’s evidence and at the close of
all evidence, Adam’s counsel moved to dismiss the charges,
arguing that there was a lack of substantial evidence that Adam
acted with a sexual purpose. The trial court denied Adam’s
motion, stating the following:
I think Mr. Taylor asked the appropriate
questions when he asked uhm, Ms. Hardin, ‘how
do you think [Adam] perceived this versus how
the boys perceived it’ and you may have been
messing around but you don’t grab anybody’s
penis that’s not a close friend of yours on
your basketball team for that matter. I can
understand how getting in a locker room with
the buddies that’s on your basketball team,
uhm, you can do that kind of thing and that
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seems to be a big joke, but you don’t do it
to people that you’re not close to. Uh, and
the allegations in this case are you
obviously did it to two individuals that you
were not close to. Uh, that’s the basis for
the Court’s decision. . . .
The trial court entered a Level 2 disposition adjudicating Adam
delinquent, from which Adam appeals, challenging the trial
court’s denial of his motion to dismiss.
I: Motion to Dismiss
In Adam’s sole argument on appeal, he contends the trial
court erred by denying his motion to dismiss the charges of
sexual battery because there was insufficient evidence of a
sexual purpose. We disagree.
“We review a . . . court’s denial of a [juvenile’s] motion
to dismiss de novo.” In re S.M.S., 196 N.C. App. 170, 171, 675
S.E.2d 44, 45 (2009) (citation omitted). “Where the juvenile
moves to dismiss, the . . . court must determine whether there
is substantial evidence (1) of each essential element of the
offense charged, . . . and (2) of [the juvenile’s] being the
perpetrator of such offense.” In re Heil, 145 N.C. App. 24, 28,
550 S.E.2d 815, 819 (2001) (citation and quotation marks
omitted). “The evidence must be such that, when it is viewed in
the light most favorable to the State, it is sufficient to raise
more than a suspicion or possibility of the respondent’s guilt.”
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In re Walker, 83 N.C. App. 46, 48, 348 S.E.2d 823, 824 (1986).
A juvenile can be found delinquent of sexual battery if,
“for the purpose of sexual arousal, sexual gratification, or
sexual abuse, [the juvenile] engages in sexual contact with
another person . . . [b]y force and against the will of the
other person[.]” N.C. Gen. Stat. § 14-27.5A (2011). Adam
argues that, in this case, there is not sufficient evidence to
support a finding of sexual purpose.
On the question of sexual purpose, this Court has held
“that such a purpose does not exist without some evidence of the
child’s maturity, intent, experience, or other factor indicating
his purpose in acting[.]” In re K.C., ___ N.C. App. ___, ___,
742 S.E.2d 239, 242-43, disc. review denied, __ N.C. __, 747
S.E.2d 530 (2013) (citation and quotation marks omitted).
“Otherwise, sexual ambitions must not be assigned to a child’s
actions.” Id.The element of purpose may not be inferred
solely from the act itself. Rather, factors
like age disparity, control by the juvenile,
the location and secretive nature of the
juvenile’s actions, and the attitude of the
juvenile should be taken into account. The
mere act of touching is not enough to show
purpose.
Id. (citations and quotation marks omitted).
In this case, the evidence shows that Adam’s conduct was
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repeated; he used sexual language, such as saying that he was
“raping” Tom, while “rubbing” Tom’s chest, making sexual noises,
and simulating a sexual act; he also said to Tucker, “you know
you like it like that[;]” and he showed a pattern of
inappropriately touching other boys. Adam argues that there is
insufficient evidence of sexual purpose because the evidence
shows that Adam’s actions were merely horseplay. We believe,
however, when the evidence is viewed in the light most favorable
to the State, it could be inferred from the evidence that Adam
acted for the purpose of sexual arousal or sexual abuse.
Accordingly, we believe the evidence was sufficient to withstand
Adam’s motion to dismiss.
AFFIRMED.
Judge BRYANT and Judge STEPHENS concur
Report per Rule 30(e).