{ "id": 11218872, "name": "IN THE MATTER OF T.S., Juvenile", "name_abbreviation": "In re T.S.", "decision_date": "1999-05-18", "docket_number": "No. COA98-928", "first_page": "272", "last_page": "277", "citations": [ { "type": "official", "cite": "133 N.C. App. 272" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "156 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "715", "parenthetical": "holding that there is a rebuttable presumption that a person between ages seven and fourteen is incapable of contributory negligence" } ], "opinion_index": 0 }, { "cite": "271 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564179 ], "year": 1967, "pin_cites": [ { "page": "400", "parenthetical": "holding that there is a rebuttable presumption that a person between ages seven and fourteen is incapable of contributory negligence" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0396-01" ] }, { "cite": "159 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "272 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574206 ], "year": 1968, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0644-01" ] }, { "cite": "501 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659968, 1659857, 1659819, 1659829 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0285-03", "/nc/348/0285-01", "/nc/348/0285-04", "/nc/348/0285-02" ] }, { "cite": "495 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "756" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656120 ], "year": 1998, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0592-01" ] }, { "cite": "367 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "147", "parenthetical": "holding that evidence that defendant took victim to an isolated room and touched her genitals was sufficient to infer he acted for the purpose of arousing or gratifying his sexual desires" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524160 ], "year": 1988, "pin_cites": [ { "page": "598", "parenthetical": "holding that evidence that defendant took victim to an isolated room and touched her genitals was sufficient to infer he acted for the purpose of arousing or gratifying his sexual desires" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0584-01" ] }, { "cite": "502 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551266, 551304, 551064, 551133, 551167 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0579-02", "/nc/347/0579-05", "/nc/347/0579-04", "/nc/347/0579-01", "/nc/347/0579-03" ] }, { "cite": "493 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "295", "parenthetical": "allowing evidence of defendant touching victim's genitals and defendant's later exculpatory statements to support inference that he intended to satisfy his sexual desires" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 685", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799764 ], "year": 1997, "pin_cites": [ { "page": "690", "parenthetical": "allowing evidence of defendant touching victim's genitals and defendant's later exculpatory statements to support inference that he intended to satisfy his sexual desires" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0685-01" ] }, { "cite": "174 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "666", "parenthetical": "holding nonsuit \"no less required in a case in which a juvenile is involved\" than it would be in a case against an adult when evidence is insufficient" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553292 ], "year": 1970, "pin_cites": [ { "page": "520", "parenthetical": "holding nonsuit \"no less required in a case in which a juvenile is involved\" than it would be in a case against an adult when evidence is insufficient" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0517-01" ] }, { "cite": "456 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "337" }, { "page": "337-38" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920513 ], "year": 1995, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0662-01" ] }, { "cite": "377 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "276" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527973 ], "year": 1989, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0224-01" ] }, { "cite": "361 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "580", "parenthetical": "listing essential elements for adult indecent liberties conviction" }, { "page": "580", "parenthetical": "allowing defendant's act of intercourse to support inference of purpose to arouse or gratify" } ], "opinion_index": 0 }, { "cite": "321 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566911 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "104", "parenthetical": "listing essential elements for adult indecent liberties conviction" }, { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0102-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "parenthetical": "hereinafter \"Adult statute\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1998, "opinion_index": 0 } ], "analysis": { "cardinality": 665, "char_count": 13931, "ocr_confidence": 0.779, "pagerank": { "raw": 5.008111093181818e-07, "percentile": 0.9362321895986986 }, "sha256": "62d232a726721cc3911839b7717f05d2316fbcd731c0456bf443c365d5cad57c", "simhash": "1:777955727a2c27e6", "word_count": 2302 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and HORTON concur." ], "parties": [ "IN THE MATTER OF T.S., Juvenile" ], "opinions": [ { "text": "LEWIS, Judge.\nRespondent was charged on 31 December 1997 in a juvenile petition with violation of N.C. Gen. Stat. \u00a7 14-202.2 (Cum. Supp. 1998). The petition alleged that \u201con or about the 17th day of August 1997, the child unlawfully and willfully did commit a lewd and lascivious act upon the body of [the victim]... for the purpose of arousing and gratifying sexual desire.\u201d At the time of the offense, respondent was nine years of age and the victim was three. The petition alleged that by virtue of this crime, respondent was a delinquent child as defined by N.C. Gen. Stat. \u00a7 7A-517(12) (Cum. Supp. 1998).\nThe matter was heard on 12 March 1998, and respondent pled \u201cnot responsible.\u201d No record was made of the proceedings, but the summary of evidence as provided in the record indicates that the victim\u2019s mother, a neighbor, and a Cary police officer testified for the State. Quotes are from the evidence as summarized and agreed to by. the parties. The State\u2019s evidence indicated that on 17 August 1997, the victim\u2019s family watched a NASCAR race on television at the home of respondent\u2019s neighbors. The victim\u2019s mother testified that the children played outside for several hours, and after returning home the victim told her \u201csomething funny happened today.\u201d The mother further testified that her son told her that respondent told him to pull his pants down and sucked his \u201cpee-pee.\u201d The victim\u2019s mother testified she called a friend, B., to discuss what her son had told her. B. was a neighbor of respondent who had ongoing problems with respondent\u2019s family. B. told the victim\u2019s mother to ask the child specifically \u201cif (respondent) touched his pee-pee.\u201d B. then confronted respondent and respondent\u2019s father. B. testified that respondent denied and then admitted the act, saying he had seen other boys in the neighborhood \u201cdo this type of thing.\u201d Respondent\u2019s father contacted the Cary Police Department.\nOfficer Guthrie of the Cary Police Department testified that respondent was quiet and shy, and that respondent stated that he \u201csucked\u201d the younger boy\u2019s penis. He further testified that respondent said he had seen other children \u201cdoing it\u201d in the woods. Officer Guthrie asked respondent how many times \u201cthis\u201d had happened before, and respondent answered \u201ctwo times,\u201d including the alleged incident. When Officer Guthrie asked the victim if respondent sucked his \u201cpee pee,\u201d the victim pointed to his pants. The victim told Officer Guthrie that \u201cthis\u201d had never happened before.\nRespondent presented evidence. Respondent\u2019s father testified that respondent never said he \u201csucked the boy\u2019s penis.\u201d Another neighbor testified that respondent had not previously behaved in a manner to indicate \u201cthis type of action.\u201d Detective Tingen of the Cary Police Department investigated the incident. He testified that respondent made no admissions to him during the course of interviews conducted both with and without respondent\u2019s father present.\nAt the close of the State\u2019s evidence and again at the close of all evidence, respondent moved to dismiss for the State\u2019s failure to prove all elements of the charge in the petition. Specifically, respondent asserted that the State had produced no evidence that the act was \u201cfor the purpose of arousing or gratifying sexual desire.\u201d Both motions were denied. The trial court found the following facts, in their entirety:\nRespondent contested the allegation. From evidence presented, the Court found beyond a reasonable doubt that respondent committed the act alleged.\nBased on these findings of fact, the trial court concluded as a matter of law, \u201csaid juvenile [was] within [the court\u2019s] juvenile jurisdiction as Delinqnent [sic].\u201d\nRespondent argues three assignments of error. He alleges that the trial court erred in denying his motion to dismiss, first at the close of the State\u2019s evidence and second at the close of all evidence. Finally, he alleges that the trial court erred in its conclusion of law that the juvenile was responsible, because each element was not proved beyond a reasonable doubt. The assignments of error have a common basis, that the State has failed to show the act was committed for the purpose of arousing or gratifying respondent\u2019s sexual desire.\nThis is the first time the \u201cIndecent liberties between children\u201d statute (hereinafter \u201cChildren\u2019s statute\u201d) has reached our Court. The statute provides:\n(a) A person who is under the age of 16 years is guilty of taking indecent liberties with children if the person either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex who is at least three years younger than the defendant for the purpose of arousing or gratifying sexual desire; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex who is at least three years younger than the defendant for the purpose of arousing or gratifying sexual desire.\n(b) A violation of this section is punishable as a Class 1 misdemeanor.\nN.C. Gen. Stat. \u00a7 14-202.2 (Cum. Supp. 1998). The adult version of this crime, N.C. Gen. Stat. \u00a7 14-202.1 (1993) (hereinafter \u201cAdult statute\u201d), applies to individuals over age 16 and at least five years older than the child victim. The Children\u2019s statute act requirements in sections (1) and (2) are identical to provisions of the Adult statute, except the Children\u2019s statute denotes an additional requirement that a lewd or lascivious act under (a)(2), like an immoral, improper, or indecent liberty under (a)(1), also be for the purpose of sexual arousal or gratification. Language requiring such purpose is present in the Adult statute under only (a)(1). Therefore, the essential elements of indecent liberties between children under G.S. 14-202.2(a)(2) are: (1) a perpetrator under age 16; (2) who willfully commits or attempts a lewd or lascivious act upon the body of a child; (3) where the child is at least three years younger than the perpetrator; (4) for the purpose of arousing or gratifying sexual desire. Cf. State v. Rhodes, 321 N.C. 102, 104, 361 S.E.2d 578, 580 (1987) (listing essential elements for adult indecent liberties conviction).\nIn a juvenile hearing, the evidence presented is evaluated using the same standards as in an adult criminal proceeding. See In re Cousin, 93 N.C. App. 224, 225, 377 S.E.2d 275, 276 (1989). In reviewing a motion to dismiss, the evidence is viewed in the light most favorable to the State. See In re Stowe, 118 N.C. App. 662, 664, 456 S.E.2d 336, 337 (1995). If a rational trier of fact could find every element of the crime beyond a reasonable doubt from the evidence presented, a motion to dismiss is properly denied in juvenile court just as in adult criminal proceedings. See id. at 664, 456 S.E.2d at 337-38. However, as in adult proceedings, if the evidence does not support each element of the crime, the charge must be dismissed. See In re Alexander, 8 N.C. App. 517, 520, 174 S.E.2d 664, 666 (1970) (holding nonsuit \u201cno less required in a case in which a juvenile is involved\u201d than it would be in a case against an adult when evidence is insufficient).\nAlthough not present in the summary, both parties agree that respondent was nine years old and the victim was three years old at the time of the incident. While there is sufficient, though hearsay, evidence to support that the act in fact occurred, there is no evidence indicating that respondent acted for the purpose of arousing or gratifying his sexual desires. The State asserts that although no direct evidence of respondent\u2019s purpose of arousal or sexual gratification was presented, such intent should be inferred from the very act itself, as has been done in certain of our cases interpreting the Adult statute. See e.g., Rhodes, 321 N.C. at 105, 361 S.E.2d at 580 (allowing defendant\u2019s act of intercourse to support inference of purpose to arouse or gratify); State v. Connell, 127 N.C. App. 685, 690, 493 S.E.2d 292, 295 (1997) (allowing evidence of defendant touching victim\u2019s genitals and defendant\u2019s later exculpatory statements to support inference that he intended to satisfy his sexual desires), disc. review denied, 347 N.C. 579, 502 S.E.2d 602 (1998); State v. Jones, 89 N.C. App. 584, 598, 367 S.E.2d 139, 147 (1988) (holding that evidence that defendant took victim to an isolated room and touched her genitals was sufficient to infer he acted for the purpose of arousing or gratifying his sexual desires). We agree that intent is seldom provable through direct evidence. See State v. Creech, 128 N.C. App. 592, 598, 495 S.E.2d 752, 756, disc. review denied, 348 N.C. 285, 501 S.E.2d 921 (1998). However, we do not believe that intent to arouse or gratify sexual desires may be inferred in children under the same standard used to infer sexual purpose to adults.\nThe trial summary provided in the record includes scant evidence of respondent\u2019s purpose in performing fellatio. There was testimony that respondent was mimicking behavior he had seen by others in the woods. The State urges that Officer Guthrie\u2019s testimony that respondent told him this act had occurred twice indicates the nine year old had a purpose to arouse or gratify his sexual desires. We do not know whether, when, or with whom the first act took place. The State\u2019s con-clusory argument ignores that both alleged incidents may have been without the purpose to arouse or gratify. If such were the case, there is no evidence of an essential element of the crime.\nFurthermore, we are persuaded by the plain language of the statute that the purpose to arouse or gratify sexual desires should not be inferred from the act alone between children. The legislature could have merely lowered the age requirements in the Adult statute if it intended the two classes of indecent liberties perpetrators, children and adults, to receive equal consideration. Instead, an entirely new statute was enacted, and the clause \u201cfor the purpose of arousing or gratifying sexual desire\u201d was added in (a)(2) in the Children\u2019s statute where it does not appear in the Adult statute. We believe that this addition indicates a legislative recognition that a lewd act by adult standards may be innocent between children, and unless there is a showing of the child\u2019s sexual intent in committing such an act, it is not a crime under G.S. 14-202.2.\nWe note that civil courts also treat adults and children differently when applying presumptions. Our courts presume that a child of respondent\u2019s age is incapable of negligence. Bell v. Page, 271 N.C. 396, 400, 156 S.E.2d 711, 715 (1967) (holding that there is a rebuttable presumption that a person between ages seven and fourteen is incapable of contributory negligence). The child\u2019s discretion, maturity, knowledge, and experience interact in rebutting the presumption. See Hoots v. Beeson, 272 N.C. 644, 649, 159 S.E.2d 16, 20 (1968). It would be incongruous to presume that because of his age respondent is incapable of negligence in his actions, and yet presume that in spite of his age respondent had or sought to arouse sexual desires by his actions. We will not put words in the Legislative mouth by saying a presumption exists here. That branch can speak for itself.\nAccordingly, we hold that without some evidence of the child\u2019s maturity, intent, experience, or other factor indicating his purpose in acting, sexual ambitions must not be assigned to a child\u2019s actions. Adults can and should be presumed to know the nature and consequences of their acts; this is not always the case with children. The common law recognizes this in its age distinctions for negligence liability, and the General Assembly recognized this when it insisted that sexual purpose be shown under both sections of the Children\u2019s statute.\nWe are not asked to and do not hold that a nine year old is incapable of acting for the purpose of arousing or gratifying his sexual desires. We have no evidence on this question. We do not believe, however, that the State may rest on an allegation of the act alone between, for example, a four year old and a one year old, to infer sexual purpose. We hold that the element \u201cfor the purpose of arousing or gratifying sexual desire\u201d may not be inferred solely from the act itself under G.S. 14-202.2. The evidence presented by the State in respondent\u2019s case was insufficient to support a finding of the element of purpose. The motions to dismiss should have been granted at the conclusion of the State\u2019s case or after all the evidence. We need not reach respondent\u2019s third assignment of error.\nReversed and remanded for entry of order of dismissal.\nJudges TIMMONS-GOODSON and HORTON concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Sarah Y. Meacham, for the State.", "James R. Ansley for Respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF T.S., Juvenile\nNo. COA98-928\n(Filed 18 May 1999)\nIndecent Liberties\u2014 children\u2019s statute \u2014 intent\u2014sufficiency of evidence\nThe trial court erred in the prosecution of a nine-year-old for taking indecent liberties against a three-year-old under N.C.G.S. \u00a7 14-202.2 by denying defendant\u2019s motion to dismiss where the State\u2019s evidence was insufficient to support a finding of purpose. Although intent may be inferred from the act itself under the adult statute, sexual ambitions must not be assigned to a child\u2019s actions without some evidence of the child\u2019s maturity, intent, experience, or other factor indicating his purpose in acting. Although the record includes scant evidence of respondent\u2019s purpose, there was testimony that respondent was mimicking behavior he had seen by others and there is no evidence indicating that he acted for the purpose of arousing or gratifying sexual desires.\nAppeal by respondent from order entered 12 March 1998 by Judge Russell G. Sherrill, III, in Wake County District Court, Juvenile Session. Heard in the Court of Appeals 21 April 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Sarah Y. Meacham, for the State.\nJames R. Ansley for Respondent-appellant." }, "file_name": "0272-01", "first_page_order": 302, "last_page_order": 307 }