{ "id": 11435150, "name": "In the Matter of: Jonathan Heil", "name_abbreviation": "In re Heil", "decision_date": "2001-07-17", "docket_number": "No. COA00-679", "first_page": "24", "last_page": "33", "citations": [ { "type": "official", "cite": "145 N.C. App. 24" } ], "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": "530 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "336" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078823 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0143-01" ] }, { "cite": "546 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "143 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435166 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/143/0461-01" ] }, { "cite": "235 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "280-81" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549715 ], "year": 1977, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0356-01" ] }, { "cite": "352 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "891", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168498 ], "year": 1987, "pin_cites": [ { "page": "339", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0336-01" ] }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "122 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1961, "pin_cites": [ { "page": "398", "parenthetical": "emphasis added" }, { "page": "398" }, { "page": "398" } ], "opinion_index": 0 }, { "cite": "255 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571608 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "585", "parenthetical": "emphasis added" }, { "page": "585" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0583-01" ] }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "459 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "340 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790211 ], "year": 1995, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0646-01" ] }, { "cite": "139 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "665" } ], "opinion_index": 0 }, { "cite": "263 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569961 ], "year": 1965, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0353-01" ] }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "919", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "117", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "483 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708491 ], "year": 1997, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0064-01" ] }, { "cite": "328 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "906" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525621 ], "year": 1985, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0587-01" ] } ], "analysis": { "cardinality": 932, "char_count": 22186, "ocr_confidence": 0.77, "pagerank": { "raw": 3.9876380387968473e-07, "percentile": 0.905286949161901 }, "sha256": "23b8a0f3b34ed07a787d562577896155cacfcaa33a7514a35af541c0c6605008", "simhash": "1:c1e14524f3714c66", "word_count": 3546 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUDSON concur." ], "parties": [ "In the Matter of: Jonathan Heil" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nJonathan Heil (\u201cjuvenile\u201d) appeals from an order adjudicating him delinquent within the meaning of section 7A-517(12) of the North Carolina General Statutes and a dispositional order placing him on probation and ordering him to make restitution. For the reasons herein stated, we affirm the adjudication of delinquency but reverse the trial court\u2019s dispositional order and remand for reconsideration of the restitution issue.\nOn 28 January 1998, a juvenile petition was filed alleging that juvenile was delinquent, in that he \u201ccommitted] the abominable and detestable crime against nature with [C.I.] in violation of [North Carolina General Statutes section] 14-177.\u201d The adjudication hearing was held on 8 and 18 June 1998, and the State\u2019s evidence showed that at the time of the incident alleged in the petition, juvenile was eleven years old and the victim, C.I., was four years old. Juvenile\u2019s and C.I.\u2019s family socialized together at their church and in other settings. One night in October 1996, C.I. and his mother, Janet Isackson (\u201cMrs. Isackson\u201d), visited the Heil\u2019s home. At some point during the visit, C.I. and juvenile went upstairs to play, but after approximately fifteen minutes, C.I. returned downstairs and informed his mother that he was ready to go home.\nMrs. Isackson later asked C.I. whether he had fun at the Heil\u2019s house, to which C.I. responded that he had not enjoyed the visit. C.I. informed his mother that juvenile had put him in a closet, shut the door, and touched his penis. Upon further inquiry, C.I. demonstrated how juvenile touched him by placing his hands on his penis.\nThe next day, C.I.\u2019s father, Bradley Isackson (\u201cMr. Isackson\u201d), questioned C.I. concerning the incident. Mr. Isackson testified as a rebuttal witness for the State. According to Mr. Isackson, C.I. informed his father and mother that while in a closet at the Heil\u2019s house, juvenile wanted C.I. to lick his penis. Mrs. Isackson then inquired, \u201c \u2018[C.I.] show me what [juvenile] wanted you to do,\u2019 \u201d to which C.I. responded, \u201c \u2018He wanted me to lick.\u2019 \u201d Mrs. Isackson further inquired, \u201c \u2018Exactly what did you do?\u2019 \u201d According to his father\u2019s testimony, \u201c \u2018[C.I.] just went over there and just licked [Mrs. Isackson\u2019s] thumb and that was it. And then [C.I.] said, \u2018[Juvenile] wanted me to do it again,\u2019 and he said, \u2018No, I don\u2019t want out [sic].\u2019 He said, T don\u2019t like that. I\u2019m not going to do that.\u2019 \u201d\nIn October 1997, C.I. informed Mrs. Isackson that on another occasion, juvenile had put his hands down C.L\u2019s pants underneath his underwear and touched his penis. The Isacksons reported this and the October 1996 incident to the Department of Social Services and later to the police.\nShortly thereafter, an investigator with the Caswell County Sheriff\u2019s Department, now Chief of the Yanceyville Police Department, Eric Taylor (\u201cChief Taylor\u201d), interviewed juvenile and C.I. separately. During his interview with Chief Taylor, juvenile denied that the incidents ever occurred. However, C.I. told Chief Taylor that one day at the Heil\u2019s home, juvenile made him go into a closet, shut the door, and touched his penis. C.I. further mentioned that juvenile put his hands down his pants. However, according to Chief Taylor, \u201c[C.I.] stated that [juvenile] did not put his mouth on him and \u2014 did not put his mouth on [C.I.] and that [C.I.] did not put his mouth on him in any way.\u201d\nDr. Mary Baker Sinclair (\u201cDr. Sinclair\u201d), an expert in pediatric psychology, conducted interviews with C.I. and his parents concerning his alleged encounters with juvenile. Dr. Sinclair testified at trial that C.I. identified the penis on an anatomically correct drawing of a male, although her assessment otherwise indicated that C.I. had limited exposure to sexual content. Dr. Sinclair stated that despite some inconsistencies in his story, including the number of times he was fondled and where the fondling took place, C.I. consistently identified juvenile as the person who touched his penis. Dr. Sinclair explained that the \u201csomewhat inconsistent\u201d nature of C.I.\u2019s accounts indicated to her that he was truthful and was not being coached into a \u201crobotic\u201d answer. C.I. did not testily at the adjudication proceeding.\nJuvenile\u2019s evidence included testimony from his mother, Johnetta Heil (\u201cMrs. Heil\u201d), and his sister that during C.I.\u2019s fall 1996 visit to their home, C.I. and juvenile never went upstairs together. Mrs. Heil specifically testified that during that particular visit, she never saw any of her children or C.I. go upstairs. Mrs. Heil further testified that juvenile denied to her that the incident ever occurred and that she believed him. Juvenile\u2019s sister likewise testified that she did not believe that juvenile fondled the alleged victim. She further related an incident in which C.I., whom she described as \u201cvery rambunctious,\u201d pinched her breast. According to juvenile\u2019s sister, when she informed C.I.\u2019s parents of the incident, Mrs. Isackson simply stated, \u201c \u2018Well, you know, you\u2019re going to like it when you\u2019re older.\u2019 \u201d\nAlso testifying on juvenile\u2019s behalf, his Boy Scout master stated that he had never received any reports of misconduct on the part of juvenile, nor had he personally witnessed any misconduct. Members of the church attended by both juvenile and C.I. generally described juvenile as being of good character and obedient, while they described C.I. as being \u201chungry for attention\u201d and undisciplined. Juvenile, testifying on his own behalf, denied the allegations in the petition.\nAfter the presentation of all the evidence, juvenile moved to dismiss the petition, arguing that there was insufficient evidence to support the allegations contained therein. The court denied the motion and upon hearing arguments from counsel, adjudicated juvenile delinquent. The dispositional portion of the proceedings was postponed for the completion of a sex offender evaluation of juvenile.\nFollowing the dispositional hearing, the trial court ordered juvenile committed to the Division of Youth Services for a period not to exceed his eighteenth birthday. The court suspended the aforementioned disposition in lieu of a one-year period of probation. As a condition of juvenile\u2019s probation, the court further ordered, inter alia, that he receive psychotherapy and that juvenile have no contact with the victim or any unsupervised contact with children younger than himself. The \u201cDispositional Order\u201d also included the following provision: \u201c[Juvenile] shall pay restitution in the sum of $1,305.00 ... to be disbursed to [the North Carolina] Victims Compensation Fund. Monthly payments in the amount of $50.00 shall be made on or before the 3rd [of] each month beginning February 3, 1999 until the total is paid.\u201d Juvenile gave notice of appeal in open court.\nWe first examine juvenile\u2019s argument that the trial court erred in failing to dismiss the petition at the close of all of the evidence, in that there was insufficient evidence to prove his guilt beyond a reasonable doubt as to each of the elements of a crime against nature.\n\u201c[A]ll rights afforded adult offenders\u201d are bestowed upon juveniles in adjudication proceedings. N.C. Gen. Stat. \u00a7 7A-631 (1995) (repealed 1 July 1999). The juvenile is therefore \u201centitled to have the evidence evaluated by the same standards as apply in criminal proceedings against adults.\u201d In re Dulaney, 74 N.C. App. 587, 588, 328 S.E.2d 904, 906 (1985). Like adult defendants, juveniles \u201cmay challenge the sufficiency of the evidence by moving to dismiss the juvenile petition.\u201d In re Davis, 126 N.C. App. 64, 65-66, 483 S.E.2d 440, 441 (1997). Juvenile in the case sub judice satisfied the aforementioned requirement, and therefore, his argument concerning the sufficiency of the evidence is properly before this Court. See N.C.R. App. P. 10(b)(3) (2000).\nWhere the juvenile moves to dismiss, the trial court must determine \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, . . . and (2) of [juvenile\u2019s] being the perpetrator of such offense.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). When the evidence raises no more than \u201ca suspicion or conjecture as to either the commission of the offense or the identity of the [juvenile] as the perpetrator of it, the motion should be allowed.\u201d Id.\nThe existence of only circumstantial evidence, however, does not warrant dismissal. State v. Barnes, 334 N.C. 67, 430 S.E.2d 914 (1993). Where the evidence is circumstantial, \u201cthe court must consider whether a reasonable inference of [juvenile\u2019s] guilt may be drawn from the circumstances.\u201d Id. at 75, 430 S.E.2d at 919 (citation omitted). When the court determines that an inference may be drawn, it is then within the court\u2019s fact-finding function to determine \u201cwhether the facts, taken singly or in combination, satisfy [the court] beyond a reasonable doubt\u201d that the juvenile is delinquent. State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965). \u201cBoth competent and incompetent evidence must be considered.\u201d State v. Lyons, 340 N.C. 646, 658, 459 S.E.2d 770, 776 (1995). Moreover, the court must disregard the juvenile\u2019s evidence, unless it supports or explains the State\u2019s case without contradicting it, or unless it is otherwise favorable to the State. State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).\nIn reviewing a challenge to the sufficiency of evidence, it is not our duty to weigh the evidence, but to determine whether there was substantial evidence to support the adjudication, viewing the evidence in the light most favorable to the State, and giving it the benefit of all reasonable inferences. Id. at 378-79, 526 S.E.2d at 455.\nThe petition in the present case alleged that juvenile was delinquent for violating North Carolina General Statutes section 14-177, which provides: \u201cIf any person shall commit the crime against nature, with mankind or beast, he shall be punished . . . .\u201d N. C. Gen. Stat. \u00a7 14-177 (1999). The essential element of the so-called \u201ccrime against nature, with mankind\u201d is \u201csome penetration, however slight, of a natural orifice of the body.\u201d State v. Whittemore, 255 N.C. 583, 585, 122 S.E.2d 396, 398 (1961) (emphasis added); State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978). Our Supreme Court has previously stated that \u201cpenetration need not be to any particular distance.\u201d Whittemore, 255 N.C. at 585, 122 S.E.2d at 398.\nC.I.\u2019s father, Mr. Isackson, testified that when inquiring of C.I. \u201c[e]xactly what did you do\u201d after juvenile asked C.I. to lick his penis, C.I. \u201cjust went over there and just licked [Mrs. Isackson\u2019s] thumb.\u201d On appeal, juvenile contends that even if the aforementioned testimony were taken as true, it was insufficient to support a finding that penetration occurred. We disagree.\nWe recognize that the evidence of penetration is, at best, slight. However, in light of the relative size difference between a four-year old and an eleven-year old, and the fact that the incident occurred in the presumably close quarters of a closet, it was reasonable for the trial court to find based on Mr. Isackson\u2019s testimony that there was some penetration, albeit slight, of juvenile\u2019s penis into C.I.\u2019s mouth. We therefore find the evidence sufficient to support juvenile\u2019s adjudication, as there was evidence from which the trial court could find that \u201csome penetration\u201d had occurred. Whittemore, 255 N.C. at 585, 122 S.E.2d at 398.\nJuvenile further contends that the evidence does not support his adjudication because Mr. Isackson\u2019s testimony, the only evidence allegedly demonstrating penetration, was hearsay, was uncorroborated, and was even contradicted. Juvenile points to the testimony of C.I.\u2019s mother, Mrs. Isackson, Chief Taylor, and Dr. Sinclair, none of whom testified that C.I. ever mentioned the incident described by Mr. Isackson. Juvenile specifically references Chief Taylor\u2019s testimony, in which he stated that C.I. expressly informed him that juvenile never put his mouth on C.I. and that C.I. never put his mouth on juvenile. With this argument, we also disagree.\nFirst, in his appellate brief, juvenile expressly withdraws his assignment of error concerning the admission of Mr. Isackson\u2019s testimony and further does not present any support for his contention that it was hearsay or inadmissible. We therefore presume that juvenile has abandoned any argument he may present against the admissibility of that testimony and its effect on his adjudication. See N.C.R. App. R 28(b)(5) (2000). Second, concerning the inconsistencies in the testimony, as noted supra, inconsistencies and discrepancies cannot be the basis for granting a motion to dismiss or for overruling a trial court\u2019s denial of said motion. Barnes, 334 N.C. 67, 430 S.E.2d 914. Resolving contradictions and inconsistences in the evidence falls within the province of the trial court when performing as the fact finder, and thus, it is not our place to now weigh the evidence on appeal. See Fritsch, 351 N.C. 373, 526 S.E.2d 451. As we find the evidence sufficient to support the adjudication of delinquency, juvenile\u2019s first argument is overruled.\nBy his second argument, juvenile contends that the trial court erred in ordering restitution payable to the North Carolina Victim\u2019s Compensation Fund. Juvenile argues that no evidence was introduced at the adjudication or dispositional proceedings indicating the amount of restitution due the victim or his family. Juvenile further argues that the Victim\u2019s Compensation Fund was not entitled to receive restitution, as it suffered no loss based upon his alleged delinquency. Because juvenile did not object to the award of restitution based upon the particular grounds he raises on appeal, he has not preserved the aforementioned argument for appellate review. See N.C.R. App. P. 10(b)(1).\nJuvenile\u2019s failure to preserve his arguments for review notwithstanding, the State has brought to our attention errors in the juvenile court\u2019s disposition, which we believe necessitate remanding the case for entry of a modified dispositional order. The State notes that given the statutory provisions and relevant case law governing restitution in juvenile dispositions, the trial court erred in failing to consider or make findings concerning juvenile\u2019s best interest and in considering his parents\u2019 ability to pay. We must agree.\nSection 7A-649 of our General Statutes authorized the juvenile court to order a delinquent juvenile to \u201cmake specified financial restitution\u201d as a condition of his probation. N.C. Gen. Stat. \u00a7 7A-649(8)(e) (1995) (repealed 1 July 1999). This Court has consistently \u201cendors[ed] the discriminate and prudent use of restitution in juvenile cases\u201d but has cautioned that \u201ccompensation of victims should never become the only or paramount concern in the administration of juvenile justice.\u201d In re Register, 84 N.C. App. 336, 339, 352 S.E.2d 889, 891 (1987) (emphasis added); see also N.C. Gen. Stat. \u00a7 7A-646 (1995) (repealed 1 July 1999) (\u201cThe purpose of dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction.\u201d) As such, requiring \u201cthat a juvenile make restitution as a condition of probation must be supported by the record and appropriate findings of fact which demonstrate that the best interest of the juvenile will be promoted by the enforcement of the condition.\u201d In re Berry, 33 N.C. App. 356, 360, 235 S.E.2d 278, 280-81 (1977); In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001). See also In re McKoy, 138 N.C. App. 143, 530 S.E.2d 334 (2000).\nFurthermore, the juvenile court \u201cshall not require the juvenile to make restitution if the juvenile satisfies the court that he does not have, and could not reasonably acquire, the means to make restitution.\u201d N.C. Gen. Stat. \u00a7 7A-649(2). Section 7A-649(2) emphasizes that the focus of the restitution award should be the ability of the juvenile, not his parents, to pay restitution. See McKoy, 138 N.C. App. at 148, 530 S.E.2d at 336. Thus, the statute \u201cdoes not authorize the juvenile court to consider the parents\u2019 ability to pay restitution when ordering the juvenile to make restitution to the victim as a condition of [his] probation.\u201d Id.\nAt the dispositional proceeding in the present case, the juvenile court made no inquiry or findings concerning whether ordering juvenile to make restitution as a condition of his probation was in his best interest. Immediately upon being informed by the State that C.I.\u2019s therapy bills totaled $1,305.00, the court stated, \u201cThey will have to pay restitution . . . presumably referring to juvenile\u2019s family. (Emphasis added). Juvenile\u2019s mother, Mrs. Heil, informed the court that she could afford to pay only \u201cfive dollars now,\u201d at which time the court informed her, \u201cYou\u2019re going to have to do some extra work or something.\u201d (Emphasis added). The court did acknowledge that juvenile \u201chimself [could] clean yards or something\u201d and that \u201creally it should be his bill, not his parents.\u201d However, the court went on to state that it \u201cexpect[ed] the parents to help[.]\u201d\nThis excerpt from the dispositional proceeding reveals that the court\u2019s paramount concern was indeed the ability of juvenile\u2019s family to pay restitution, not juvenile\u2019s best interest. Likewise, the amount of restitution ordered by the court reflected the exact amount quoted by the State in reference to C.L\u2019s therapy bills, indicating a concern to compensate the victim with no consideration for or adjustment based upon juvenile\u2019s best interest or his ability to pay. Accordingly, we conclude that the court erred in failing to consider or make findings concerning whether the restitution award was in juvenile\u2019s best interest and whether juvenile, not his family, had the ability to pay restitution.\nThe State likewise points out other blatant errors in the court\u2019s dispositional order which require our consideration. First, by ordering that the period of restitution payments perpetuate \u201cuntil the total is paid,\u201d the court also violated section 7A-649(2), which requires that restitution must be \u201cpayable within a 12-month period.\u201d N.C. Gen. Stat. \u00a7 7A-649(2). Also, there was an unexplained $200.00 discrepancy between the amount of the restitution award, $1,305.00, and the amount of C.L\u2019s therapy bills, as reflected in a \u201cDetermination of Director Award,\u201d filed by the commission who administers the Victim\u2019s Compensation Fund.\nDespite juvenile\u2019s failure to challenge the errors raised by the State and preserve them for appellate review, we suspend the Rules of Appellate Procedure, see N.C.R. App. P. 2, and vacate that portion of the 11 January 1999 dispositional order making restitution a condition of juvenile\u2019s probation. We remand the present case to the juvenile court to structure a modified dispositional order reflecting a reexamination of the restitution amount and payment schedule consistent with this opinion. In so doing, we specifically instruct the court to (1) consider and make findings concerning whether restitution is in juvenile\u2019s best interest; (2) examine whether juvenile had or could reasonably acquire the means to pay restitution; and (3) if the court finds that a restitution payment schedule is in juvenile\u2019s best interest, restrict the schedule to a period of twelve months or less and reexamine the restitution amount in light of the above noted $200.00 discrepancy. We further affirm the 18 June 1998 adjudication order and 11 January 1999 dispositional order in all other respects.\nAffirmed in part, vacated and remanded in part.\nJudges WYNN and HUDSON concur.\n. Section 7A-500, et seq., the Juvenile Code applicable to the present case, was repealed by Session Laws 1998-202, s. 5, effective 1 July 1999. Chapter 7B, the Juvenile Code replacing section 7A-500, et seq., became effective 1 July 1999 and applies to acts committed on or after that date.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Amy C. Kunstling, for the State.", "George B. Daniel, P.A., by John M. Thomas, for juvenile-appellant." ], "corrections": "", "head_matter": "In the Matter of: Jonathan Heil\nNo. COA00-679\n(Filed 17 July 2001)\n1. Juveniles\u2014 delinquency \u2014 crime against nature \u2014 motion to dismiss\nThe trial court did not err by failing to dismiss a juvenile delinquency petition at the close of all evidence regarding the charge of crime against nature under N.C.G.S. \u00a7 14-177, because: (1) there was some evidence from which the trial court could find that some penetration occurred; (2) any inconsistencies in the testimony cannot be the basis for granting a motion to dismiss or for overruling a trial court\u2019s denial of said motion; and (3) resolving contradictions in the evidence falls within the province of the trial court when it performs as the fact-finder.\n2. Juveniles\u2014 delinquency \u2014 condition of probation \u2014 restitution\nThe trial court erred by ordering a juvenile to pay restitution to the North Carolina Victim\u2019s Compensation Fund as a condition of his probation based on his alleged delinquency for the charge of crime against nature, because: (1) the court made no inquiry or findings concerning whether ordering the juvenile to make restitution as a condition of his probation was in his best interest; (2) the amount of restitution ordered by the court reflected the exact amount quoted by the State in reference to the minor victim\u2019s therapy bills, indicating a concern to compensate the victim with no consideration for or adjustment based upon the juvenile\u2019s best interest and whether the juvenile, not his family, had the ability to pay restitution; (3) N.C.G.S. \u00a7 7A-649(2) requires restitution to be payable within a 12-month period, and the court ordered the period of restitution payments to perpetuate until the total is paid; and (4) there was a $200 discrepancy between the amount of the restitution award and the amount of the minor victim\u2019s therapy bills.\nAppeal by juvenile from orders entered 11 January 1999 and 18 June 1998 by Judge Pattie S. Harrison in District Court, Caswell County. Heard in the Court of Appeals 25 April 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Amy C. Kunstling, for the State.\nGeorge B. Daniel, P.A., by John M. Thomas, for juvenile-appellant." }, "file_name": "0024-01", "first_page_order": 54, "last_page_order": 63 }