{ "id": 11241095, "name": "IN THE MATTER OF NICHOLAS JONES, A Juvenile", "name_abbreviation": "In re Jones", "decision_date": "1999-11-02", "docket_number": "No. COA99-19", "first_page": "400", "last_page": "411", "citations": [ { "type": "official", "cite": "135 N.C. App. 400" } ], "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": "260 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "24 L. Ed. 2d 518", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "396 U.S. 1024", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11422113, 11421961, 11421868, 11422063, 11422229, 11422166, 11422008, 11421917 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/396/1024-06", "/us/396/1024-03", "/us/396/1024-01", "/us/396/1024-05", "/us/396/1024-08", "/us/396/1024-07", "/us/396/1024-04", "/us/396/1024-02" ] }, { "cite": "168 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "275 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558852 ], "year": 1969, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0411-01" ] }, { "cite": "93 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275013 ], "weight": 5, "year": 1885, "pin_cites": [ { "page": "630-31" }, { "page": "631" }, { "page": "631" }, { "page": "632", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/93/0628-01" ] }, { "cite": "35 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274519 ], "weight": 3, "year": 1851, "pin_cites": [ { "page": "187" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/35/0184-01" ] }, { "cite": "346 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772331 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0457-01" ] }, { "cite": "153 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "58" }, { "page": "58" } ], "opinion_index": 0 }, { "cite": "269 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564264 ], "weight": 2, "year": 1967, "pin_cites": [ { 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"year": 1979, "pin_cites": [ { "page": "356" }, { "page": "356" }, { "page": "356-57" } ], "opinion_index": 0 }, { "cite": "298 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569948 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0263-01" ] }, { "cite": "260 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "298 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574147 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "787" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0783-01" ] }, { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "year": 1999, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0483-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "362" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "361 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "580", "parenthetical": "emphasis added" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0102-01" ] }, { "cite": "458 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "237", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": 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App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914636 ], "year": 1995, "pin_cites": [ { "page": "287", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0285-01" ] }, { "cite": "139 L. Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11525121, 11525092, 11524582, 11524807, 11524710, 11525031, 11524847, 11524689, 11524884, 11524761, 11524635, 11524924, 11524734, 11524959 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0900-14", "/us/522/0900-13", "/us/522/0900-01", "/us/522/0900-07", "/us/522/0900-04", "/us/522/0900-12", "/us/522/0900-08", "/us/522/0900-03", "/us/522/0900-09", "/us/522/0900-06", "/us/522/0900-02", "/us/522/0900-10", "/us/522/0900-05", "/us/522/0900-11" ] }, { "cite": "483 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53878 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0647-01" ] }, { "cite": "453 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "155-56", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "339 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2559246 ], "year": 1995, "pin_cites": [ { "page": "555", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0545-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(2)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "169 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "275 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559163 ], "year": 1969, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0517-01" ] }, { "cite": "344 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "330", "parenthetical": "quoting In re Burrus, 275 N.C. 517, 530, 169 S.E.2d 879, 887 (1969)" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524187 ], "year": 1986, "pin_cites": [ { "page": "520", "parenthetical": "quoting In re Burrus, 275 N.C. 517, 530, 169 S.E.2d 879, 887 (1969)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0518-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1998, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "439 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "335 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527119 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc/335/0301-01" ] }, { "cite": "392 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "99 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521396 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc-app/99/0143-01" ] }, { "cite": "509 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "177" } ], "opinion_index": 1 }, { "cite": "349 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571673 ], "year": 1998, "pin_cites": [ { "page": "674" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0656-01" ] }, { "cite": "516 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "198", "parenthetical": "citing Meads v. N.C. Dep't of Agric., 349 N.C. 656, 674, 509 S.E.2d 165, 177 (1998)" } ], "opinion_index": 1 }, { "cite": "133 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220679 ], "year": 1999, "pin_cites": [ { "page": "578", "parenthetical": "citing Meads v. N.C. Dep't of Agric., 349 N.C. 656, 674, 509 S.E.2d 165, 177 (1998)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/133/0573-01" ] }, { "cite": "441 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "114 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527465 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc-app/114/0253-01" ] }, { "cite": "181 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "11 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555573 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/nc-app/11/0437-01" ] }, { "cite": "275 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "225" } ], "opinion_index": 1 }, { "cite": "51 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646793 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc-app/51/0113-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "344 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 1 }, { "cite": "81 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524187 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/nc-app/81/0518-01" ] } ], "analysis": { "cardinality": 988, "char_count": 26496, "ocr_confidence": 0.743, "pagerank": { "raw": 1.0159449783398248e-07, "percentile": 0.5434376676014702 }, "sha256": "0470914b5b137676616b78ca44dfe5c6f7bfad8532ccafbce9d00eefa7e5cb85", "simhash": "1:ee634323f60fe4fc", "word_count": 4543 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge EDMUNDS concurs in result with separate opinion." ], "parties": [ "IN THE MATTER OF NICHOLAS JONES, A Juvenile" ], "opinions": [ { "text": "HORTON, Judge.\nOn 14 January 1998, Detective J. D. Owenby, Jr., of the Buncombe County Sheriff\u2019s Department, verified five juvenile petitions .alleging that the respondent, Nicholas Jones, was a delinquent juvenile by reason of various sexual offenses involving L.G.C., a female juvenile. The petitions were approved for filing by the Juvenile Intake Counselor on 26 January 1998. The first of those petitions alleged, in pertinent part,\n[t]hat the juvenile [respondent] is a delinquent juvenile as defined by G.S. 7A-517(12), in that at and in the county named above [Buncombe], and on or about the 25th day of November, 1997, the juvenile unlawfully, willfully, and feloniously did engage in a sex offense with [L.G.C.],\nThe offense charged here is in violation of G.S. 14-27.\nThe second and third petitions were identical to the first, except that both alleged the date of the offense to be 27 November 1997. The fourth petition was also identical to the first three petitions, except that it alleged the date of the offense to be 28 November 1997. We will discuss the fifth petition, which purported to charge the respondent with first-degree rape, below.\nWe first note that N.C. Gen. Stat. \u00a7 14-27 was repealed in 1979. 1979 N.C. Session Laws, ch. 682, \u00a7 7, effective 1 January 1980. It appears from the record and the briefs of the parties that the State intended to charge respondent with a violation of N.C. Gen. Stat. \u00a7 14-27.4(a)(l) (Cum. Supp. 1998), first-degree sexual offense, which reads as follows:\n(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:\n(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim[.]\nThe respondent\u2019s trial was conducted on the theory that he was charged with first-degree sexual offense, and the trial court adjudicated respondent to be delinquent \u201cby reason of four counts of 1st degree sex offense in violation of G.S. 14-27.\u201d The four petitions described above, however, did not contain any allegation of the age of the victim or the respondent. Respondent argues that they were fatally defective on their faces, and that judgment should be arrested in the four cases. We agree.\nN.C. Gen. Stat. \u00a7 7A-560 (1995), apart of our juvenile code, provides, in pertinent part:\n... In cases of alleged delinquency or undisciplined behavior, the petitions shall be separate.\nA petition in which delinquency is alleged shall contain a plain and concise statement, without allegations of an evidentiary nature, asserting facts supporting every element of a criminal offense and the juvenile\u2019s commission thereof with sufficient precision clearly to apprise the juvenile of the conduct which is the subject of the accusation.\nRespondent was, of course, entitled to adequate notice of the charges against him so that he can defend himself against the allegations of the petitions.\n\u201cNotice must be given in juvenile proceedings which would be deemed constitutionally adequate in a civil or criminal proceeding; that is, notice must be given the juvenile and his parents sufficiently in advance of scheduled court proceedings to afford them reasonable opportunity to prepare, and the notice must set forth the alleged misconduct with particularity.\u201d\nState v. Drummond, 81 N.C. App. 518, 520, 344 S.E.2d 328, 330 (1986) (quoting In re Burrus, 275 N.C. 517, 530, 169 S.E.2d 879, 887 (1969)). Here, the four petitions did not state respondent\u2019s alleged misconduct with particularity, in that they did not contain the crucial allegations of the ages of the victim and respondent as required for an alleged violation of N.C. Gen. Stat. \u00a7 14-27.4(a)(l). Further, it does not appear that the petitions in this case alleged a violation of any other lesser or related sexual offense described in Article 7 (Rape and Kindred Offenses) of Chapter 14 of our General Statutes. The petitions were fatally defective and the judgments based on them must be arrested.\nII.\nThe fifth petition alleges that respondent\nis a delinquent juvenile as defined by G.S. 7A-517(12), in that at and in the county named above, and on or about the 28th day of November, 1997, the juvenile did unlawfully and willfully and feloniously did ravish and carnally know [L.G.C.], by force and against the person[\u2019]s will.\nThe offense charged here is in violation of G.S. 14-27.2.\nThe petition states a violation of N.C. Gen. Stat. \u00a7 14-27.2(a)(2), first-degree rape. Immediately prior to trial, the State moved to amend the fifth petition to allege a violation of N.C. Gen. Stat. \u00a7 14-27.2(a)(l) (Cum. Supp. 1998), which statute provides that:\n(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old or is at least four years older than the victim[.]\nRespondent objected to the amendment, and contends the trial court erred in overruling his objection. We need not reach the merits of respondent\u2019s argument, however, because the State did not offer any evidence at trial that respondent was at least 12 years old or at least four years older than L.G.C. Respondent contends the trial court committed plain error in failing to dismiss the charge of first-degree rape for insufficiency of the evidence. We note that respondent did not move to dismiss the charges against him at trial, however, we have elected, pursuant to our inherent authority and Rule 2 of the Rules of Appellate Procedure, to consider whether there was sufficient evidence of every element of the offense of first-degree rape to submit the charge to the trial court as the trier of fact.\nUnder the plain error rule, the error of the trial court\nmust have \u201chad a probable impact on the jury\u2019s finding of guilt.\u201d Defendant, therefore, \u201cmust convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.\u201d\nState v. Allen, 339 N.C. 545, 555, 453 S.E.2d 150, 155-56 (1995) (citations omitted), abrogated by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997). On a motion to dismiss,\nthe question is whether the evidence is legally sufficient to support a verdict of guilty on the offense charged, so as to warrant submission of the charge to the jury. We must view the evidence in the light most favorable to the State and afford the State every reasonable inference that may arise from the evidence. There must be substantial evidence to support a finding that an offense has been committed and that the defendant committed it. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\nState v. Jackson, 119 N.C. App. 285, 287, 458 S.E.2d 235, 237 (1995) (citations omitted). Respondent contends the State failed to offer evidence of his age at the time of the offense, that his age was an essential element of the offense, and that the charge of first-degree rape should be dismissed. We agree.\nOur Supreme Court confronted the issue of a motion to dismiss on a sex offense charge in State v. Rhodes, 321 N.C. 102, 361 S.E.2d 578 (1987). In Rhodes, the defendant was charged with first-degree rape under N.C. Gen. Stat. \u00a7 14-27.2(a)(l). As in the case before us, the ages of the victim and defendant were elements of the offense. In Rhodes, the Supreme Court held that the evidence of the respective ages of the victim and defendant was sufficient to withstand the motion to dismiss:\nA person may be guilty of first degree rape if (1) he has vaginal intercourse with a child under the age of 13 years, (2) he is at least 12 years old and (3) he is at least four years older than the victim. In this case two witnesses, the ten year old prosecuting witness and her nine year old brother, testified the defendant had intercourse with the ten year old girl. There was testimony from several witnesses that the prosecuting witness was ten years of age. The defendant testified he was bom on 4 February 1956 which would make him 29 years of age on 4 January 1986. This evidence is sufficient to withstand a motion to dismiss on the charge of first degree rape.\nRhodes, 321 N.C. at 104, 361 S.E.2d at 580 (emphasis added) (citation omitted). In the case before us, the defendant\u2019s age is an essential element of the offense of the amended offense of first-degree rape. The State bears the burden of proving each element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 362, 25 L. Ed. 2d 368, 374 (1970). The State did not, however, offer any evidence, direct or circumstantial, of respondent\u2019s age at the time of the offense in question. In the context of a motion to dismiss, the State must present substantial evidence of each element of the offense charged. State v. Nobles, 350 N.C. 483, 504, 515 S.E.2d 885, 898 (1999). The State contends, however, that in North Carolina the jury may determine a criminal defendant\u2019s age merely by observing him in the courtroom. In support of that position, the State relies on the cases of State v. Samuels, 298 N.C. 783, 787, 260 S.E.2d 427, 430 (1979); State v. Evans, 298 N.C. 263, 267, 258 S.E.2d 354, 356 (1979), overruled on other grounds by State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989); State v. Gray, 292 N.C. 270, 286, 233 S.E.2d 905, 915 (1977); State v. Overman, 269 N.C. 453, 470, 153 S.E.2d 44, 58 (1967), overruled on other grounds by State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986). Careful analysis of the facts of the cases cited by the State, and other relevant North Carolina decisions, convinces us that our evidentiary rule does not allow a jury to determine the age of a criminal defendant beyond a reasonable doubt merely by observing him in the courtroom without having the benefit of other evidence, whether circumstantial or direct.\nThe first North Carolina decisions to deal with proof of the age of a defendant were State v. Arnold, 35 N.C. 184 (1851) and State v. McNair, 93 N.C. 628 (1885). In each case, the defendant contended he was less than fourteen years of age at the time of the offense in question, and thus presumptively incapable under the common law of committing a criminal offense. \u201cIn cases of rape, the common law presumption of incapacity was conclusive to age fourteen.\u201d State v. Rogers, 275 N.C. 411, 424, 168 S.E.2d 345, 352 (1969), cert. denied, 396 U.S. 1024, 24 L. Ed. 2d 518 (1970). In Arnold, a prosecution for murder, the defendant offered no evidence of his age at trial, but insisted on appeal that he appeared to be under fourteen years of age, \u201cand, therefore, that it was incumbent on the State to prove that he was over that age . . .\" Arnold, 35 N.C. at 187. Chief Justice Ruffin opined for the Court that \u201c[a]s the subject of direct proof, the onus was certainly on the prisoner, as the reputed age of every one is peculiarly within his own knowledge, and also the persons by whom it can be directly proved.\u201d Id. at 192. In McNair, the defendant also contended in defense of the charge of murder that he was under the age of fourteen years at the time of the alleged offense. There was testimony before the jury on the issue of his age, the \u201cmother of the prisoner rendering it somewhat uncertain whether he was of that age, and a number of witnesses for the State placing it at about seventeen years.\u201d McNair, 93 N.C. at 630-31. In instructing the jury, the trial court stated: \u201cIt is for you to say whether he is under fourteen years of age or not, being, as you see him before you, grown to the stature of manhood.\u201d Id. at 631. The prosecutor suggested to the trial court that the instruction might be construed as expressing an opinion on the defendant\u2019s age, and the trial court gave the jury an additional instruction:\nWhat the court said to them in reference to the size and appearance of the prisoner was not to be taken by them as indicating the opinion of the court as to the prisoner\u2019s age, but that they had a right to consider his size and appearance to aid them in coming to a conclusion as to his age.\nId. at 631. In affirming McNair\u2019s conviction and death sentence, Chief Justice Smith noted that \u201cit was competent for the jury to look at the prisoner and draw such reasonable inferences as to his youth as his appearance warranted. Indeed, the burden rested on him to prove his incapacity from nonage to commit the imputed crime.\" Id. at 632 (emphasis added). Thus, in both Arnold and McNair, we note that the burden was on the defendant to prove the common law defense of \u201cnonage.\u201d In Arnold, the defendant offered no direct evidence as to his age, and thus failed to carry his burden even though he was a \u201csmall boy,\u201d and appeared to be less than fourteen years of age. In McNair there was conflicting evidence from the defendant\u2019s mother and the State\u2019s witnesses, so that it was held proper for the trial court to allow the jury to observe the defendant himself to \u201caid\u201d the jury in resolving the conflicting testimony as to his age. Although neither of these early decisions hold that a jury may determine the age of a criminal defendant based entirely upon in-court observations, without other evidence, these early cases apparently led to the broad statement by Stansbury that the jury \u201cmay look upon the prisoner, although he is not in evidence, to estimate his age.\u201d Stansbury\u2019s, North Carolina Evidence, \u00a7 119 (2d ed. 1963).\nIn Overman, 269 N.C. 453, 153 S.E.2d 44, a prosecution for rape, our Supreme Court held that it was not improper for the assistant solicitor to comment in his argument to the jury on the relative sizes of the prisoner and the alleged victim. In finding that the argument was neither \u201coffensive [n]or inflammatory,\u201d the Supreme Court cited the above statement from Stansbury relhtive to a jury \u201cestimating\u201d the age of a defendant. Id. at 470, 153 S.E.2d at 58. We note that in Overman, the size of the defendant was not an essential element of the offense charged.\nA decade later, our Supreme Court decided Gray, 292 N.C. 270, 233 S.E.2d 905, in which the defendant was charged with rape, felonious assault, and first-degree burglary. The State was required to prove, as an essential element of the offense, that the defendant was more than sixteen years of age. The Supreme Court decided, as a matter of first impression, that when age is in issue, the trial court may properly admit into evidence the opinions of lay witnesses regarding a. person\u2019s age. In Gray, numerous lay witnesses offered their opinions as to the defendant\u2019s age, and the defendant himself testified about his Navy duty, his marriage and his two children. \u201cFrom defendant\u2019s own testimony the conclusion that he was more than sixteen years old, although admittedly one for the jury to draw, is simply inescapable.\u201d Id. at 286, 233 S.E.2d at 915. We note that the record indicates that the defendant Gray was in fact twenty-eight years of age at the time of his trial.\nIn Evans, 298 N.C. 263, 258 S.E.2d 354, the defendant was charged with first-degree burglary, assault on a female with intent to commit rape, and felonious larceny. The jury found the defendant guilty of first-degree burglary, not guilty of felonious larceny, and guilty of misdemeanor assault on a female. The trial court imposed an active sentence of life imprisonment on the charge of burglary, and imposed a concurrent two-year sentence on the misdemeanor of assault on a female. On appeal, the defendant argued in part that the State failed to offer evidence on an element of misdemeanor assault on a female because there was no evidence that he was more than 18 years of age. In affirming defendant\u2019s conviction, the Supreme Court cited McNair and Stansbury for the proposition that \u201cthe jury may look upon a person and estimate his age.\u201d Evans, 298 N.C. at 267, 258 S.E.2d at 356. The Court continued, however, by pointing out that \u201cany error ... relative to the assault charge was harmless[,]\u201d because the sentences ran concurrently. Id. at 267, 258 S.E.2d at 356-57.\nLater in 1979, the question was again presented to our Supreme Court in Samuels, 298 N.C. 783, 260 S.E.2d 427. Defendant Samuels was charged with first-degree rape and with robbery with a dangerous weapon. He was convicted on the rape count, and sentenced to life imprisonment. On appeal to our Supreme Court, counsel for Samuels stated that he could find no error prejudicial to defendant, and asked that the Supreme Court review the record for possible prejudicial error. Justice Copeland, writing for the Court, stated that one of the essential elements of first-degree rape was that the defendant be more than sixteen years of age at the time of its commission. Id. at 787, 260 S.E.2d 430. \u201cHere, the jury had ample opportunity to view the defendant and estimate his age. See State v. Evans, 298 N.C. 263, 258 S.E.2d 354 (1979).\u201d Id. Although the brief opinion in Samuels gives the impression that there was no other evidence of defendant Samuel\u2019s age, requiring the jury to \u201cestimate\u201d his age, one investigating officer testified that the victim described the man who attacked her as \u201cabout 25 years of age, about 6 feet one inches tall, 190 lbs., medium complexion, black hair . . . .\u201d Another officer also testified that the victim described her assailant as \u201cabout 25 years of age ... .\u201d The victim identified the defendant Samuels as her assailant. Thus, there was competent lay opinion evidence of Samuels\u2019 age upon which the jury could find that he was more than sixteen years of age at the time of the offense charged.\nIn Barnes, 324 N.C. 539, 380 S.E.2d 118, the defendant was convicted, among other things, for statutory rape. An element of the offense was that the defendant be at least 12 years of age and at least four years older than the victim. On appeal, defendant challenged the constitutionality of the decisions in Evans, Gray, and McNair, insofar as they allowed the jury to \u201cdetermine a defendant\u2019s age based on their observations of the defendant.\u201d Barnes, 324 N.C. at 540, 380 S.E.2d at 119. Our Supreme Court did not reach the constitutional question in Barnes, however, because \u201cthe State [in Barnes] presented adequate circumstantial evidence from which the jury could determine defendant\u2019s age.\u201d Id.\nIn the case before us, the State offered no evidence, direct or circumstantial, of the respondent\u2019s age although the State itself moved to amend the juvenile petition and alleged that the respondent was more than 12 years of age and more than four years older than the alleged victim at the time of the offense. We do not believe that any of the decisions of our Supreme Court allow the trial court to find beyond a reasonable doubt the respondent\u2019s age in a juvenile prosecution for first-degree rape, merely by observing the juvenile in the courtroom, where the State offers no direct or circumstantial evidence of the respondent\u2019s age, and where the age of the respondent is an essential element of the crime charged. The difficulty of determining the age of a juvenile by merely observing the juvenile is exacerbated by the requirement that the age of the juvenile at the time of the alleged offense is the crucial determination, not the age of the juvenile at the time of trial. Further, the trial court made no specific finding as to respondent\u2019s age at the time of the offenses alleged; the Juvenile Adjudication Order merely states that \u201cafter hearing all the evidence in this matter that the juvenile did commit the acts alleged and finds the juvenile to be delinquent.\u201d In light of our decision, we need not reach the related constitutional questions which arise if we relieve the State of the burden of proving beyond a reasonable doubt an essential element of a felony charge against a juvenile respondent.\nWe hold the trial erred in failing to dismiss the four charges of first-degree sexual offense as fatally defective, and in failing to dismiss the charge of first-degree rape at the close of the evidence, the State having failed to offer any evidence of respondent\u2019s age. In light of our decision, we need not consider respondent\u2019s contention that the trial court erred in allowing the State to amend over his objection the juvenile petition charging him with first-degree rape.\nReversed.\nJudge WYNN concurs.\nJudge EDMUNDS concurs in result with separate opinion.", "type": "majority", "author": "HORTON, Judge." }, { "text": "Judge Edmunds\nconcurring in the result.\nI concur with the majority holding that the four juvenile petitions that fail to allege the age of either the juvenile or the victim are fatally flawed. As to the fifth petition, I concur in the result, but on different grounds. I believe the State should not have been allowed to amend the petition on the day of trial.\nThe petition in question originally charged that \u201cthe juvenile did unlawfully and willfully and feloniously [] ravish and carnally know [the victim], by force and against the persons [sic] will. The offense charged here is in violation of G.S. 14-27.2.\u201d On the morning of trial, the State moved to amend this charge to \u201ca statutory offense.\u201d Over respondent\u2019s objection, the motion was allowed.\nSection 7A-627 states:\nThe judge may permit a petition to be amended when the amendment does not change the nature of the offense alleged or the conditions upon which the petition is based. If a motion to amend is allowed, the juvenile shall be given a reasonable opportunity to prepare a defense to the amended allegations.\nN.C. Gen. Stat. \u00a7 7A-627 (1995) (repealed effective 1 July 1999). This statute does not define the critical term \u201cnature of the offense.\u201d However, several cases provide guidance. In State v. Clements, 51 N.C. App. 113, 275 S.E.2d 222 (1981), a defendant was charged with death by motor vehicle. The State\u2019s motion to amend the underlying traffic offense from \u201cfollowing too closely\u201d to \u201cfailure to reduce speed to avoid an accident\u201d was allowed. This Court affirmed the conviction, noting that both before and after the amendment defendant was charged with causing a death while violating a statute pertaining to operation of a motor vehicle. The Clements Court held that substituting a \u201csubstantially similar\u201d motor vehicle violation for the violation originally alleged did not change the nature of the offense of \u201cdeath by motor vehicle.\u201d Id. at 116-17, 275 S.E.2d at 225. Similarly, in In re Jones, 11 N.C. App. 437, 181 S.E.2d 162 (1971), the respondent juvenile was charged with stealing lights from a parked vehicle. This Court held that an amendment that clarified the identity of the victim did not change the nature of the offense charged.\nBy comparison, in In re Davis, 114 N.C. App. 253, 441 S.E.2d 696 (1994), we held that amending a petition to charge the burning of personal property, in place of the original charge of setting fire to a public building, impermissibly changed the offense alleged against the juvenile. Finally, in State v. Drummond, 81 N.C. App. 518, 344 S.E.2d 328 (1986), we held that N.C. Gen. Stat. \u00a7 14-27.2 (Supp. 1998) encompassed two types of first-degree rape and that a defendant was entitled to adequate notice of which of the two types the State was pursuing.\nBased on the statute and the foregoing cases, I believe that statutory rape is an offense of a different nature from forcible rape. On one hand, these two offenses are charged in the same statute (unlike the two burning charges in Davis) and both have the same penalty. On the other hand, these offenses have different elements. Statutory rape is a strict liability offense that focuses on the age of the participants. See State v. Anthony, 133 N.C. App. 573, 578, 516 S.E.2d 195, 198 (1999) (citing Meads v. N.C. Dep\u2019t of Agric., 349 N.C. 656, 674, 509 S.E.2d 165, 177 (1998)). The only intent necessary to commit statutory rape is the intent to have sexual intercourse. By contrast, forcible rape, in which the age of the parties is immaterial, requires an intent by the defendant to gratify his passions notwithstanding any resistance on the part of the victim. See State v. Nicholson, 99 N.C. App. 143, 392 S.E.2d 748 (1990). Statutory rape does not encompass violence, while forcible rape is a crime of violence as a matter of law. See State v. Rose, 335 N.C. 301, 439 S.E.2d 518 (1994). The significant differences between these forms of rape have led us to hold that a defendant was constitutionally entitled to be given notice of which form the State intended to prove at trial. See Drummond, 81 N.C. App. 518, 344 S.E.2d 328. I would hold that the amendment made by the State changed the \u201cnature of the offense\" and was therefore impermissible.", "type": "concurrence", "author": "Judge Edmunds" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Daniel D. Addison, for the State.", "Public Defender J. Robert Hufstader, by Assistant Public Defender Patricia A. Kaufmann, for respondent appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF NICHOLAS JONES, A Juvenile\nNo. COA99-19\n(Filed 2 November 1999)\n1. Rape\u2014 juvenile petitions \u2014 sexual offense by older defendant against young victim \u2014 no allegation of ages\u2014 insufficient\nJuvenile petitions alleging violations of N.C.G.S. \u00a7 14-27.4(a)(l) (a sexual act with a child under 13 by a defendant at least 12 years old and at least 4 years older than the victim) were fatally defective where they did not contain the crucial allegations of the ages of the victim and respondent and did not allege a violation of any other lesser or related sexual offense.\n2. Rape\u2014 young victim and older defendant \u2014 no evidence of defendant\u2019s age \u2014 evidence insufficient\nThere was plain error in a prosecution of a juvenile for violation of N.C.G.S. \u00a7 14-27.2(a)(l) (rape of a child under 13 by a defendant at least 12 and at least 4 years older than the victim) where the court failed to dismiss the charge for insufficient evidence in that the State did not offer any evidence of respondent\u2019s age. No decisions of the North Carolina Supreme Court allow the trial court to find beyond a reasonable doubt the respondent\u2019s age in a juvenile prosecution for first-degree rape merely by observing the juvenile in the courtroom where the State offers no direct or circumstantial evidence of the respondent\u2019s age and where the respondent\u2019s age is an essential element of the crime charged.\nJudge Edmunds concurring.\nAppeal by respondent juvenile from an order entered 2 June 1998 by Judge Shirley H. Brown in Buncombe County District Court. Heard in the Court of Appeals 23 September 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Daniel D. Addison, for the State.\nPublic Defender J. Robert Hufstader, by Assistant Public Defender Patricia A. Kaufmann, for respondent appellant." }, "file_name": "0400-01", "first_page_order": 434, "last_page_order": 445 }