{ "id": 9249618, "name": "IN THE MATTER OF: Joseph D. Lineberry", "name_abbreviation": "In re Lineberry", "decision_date": "2002-12-03", "docket_number": "No. COA02-113", "first_page": "246", "last_page": "257", "citations": [ { "type": "official", "cite": "154 N.C. App. 246" } ], "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": "108 L. Ed. 2d 601", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4944, 5169, 5111, 5052, 5183 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1021-01", "/us/494/1021-04", "/us/494/1021-02", "/us/494/1021-03", "/us/494/1021-05" ] }, { "cite": "372 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "75", "parenthetical": "noting that, \"[although the transcript in the case sub judice cannot be described as a model of reporting service, it is not so inaccurate as to prevent this Court from reviewing it for errors in defendant's trial\"" } ], "opinion_index": 0 }, { "cite": "323 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564716 ], "year": 1988, "pin_cites": [ { "page": "108", "parenthetical": "noting that, \"[although the transcript in the case sub judice cannot be described as a model of reporting service, it is not so inaccurate as to prevent this Court from reviewing it for errors in defendant's trial\"" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0068-01" ] }, { "cite": "554 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138538 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0353-01" ] }, { "cite": "541 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "141 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440555 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/141/0152-01" ] }, { "cite": "321 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "837", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "312 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752529 ], "year": 1984, "pin_cites": [ { "page": "320", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0318-01" ] }, { "cite": "334 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "783", "parenthetical": "both holding that post-trial proceedings had no effect on the adjudication and disposition of the juveniles" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520702 ], "year": 1985, "pin_cites": [ { "page": "117", "parenthetical": "both holding that post-trial proceedings had no effect on the adjudication and disposition of the juveniles" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0110-01" ] }, { "cite": "365 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "649", "parenthetical": "holding that the trial court erred in ordering juvenile to remain in custody pending appeal without making appropriate findings" }, { "page": "649" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521090 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "184", "parenthetical": "holding that the trial court erred in ordering juvenile to remain in custody pending appeal without making appropriate findings" }, { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0171-01" ] }, { "cite": "481 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "401", "parenthetical": "both adhering to the general rule that, under the Fair Sentencing Act, a defendant is entitled to a new sentencing hearing where the trial court errs in finding an aggravating factor" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868865 ], "year": 1997, "pin_cites": [ { "page": "483", "parenthetical": "both adhering to the general rule that, under the Fair Sentencing Act, a defendant is entitled to a new sentencing hearing where the trial court errs in finding an aggravating factor" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0471-01" ] }, { "cite": "410 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "330 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512114 ], "year": 1991, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0398-01" ] }, { "cite": "536 U.S. 24", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254852 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "33-34", "parenthetical": "noting that therapy for sexual offenders is particularly important, as sexual offenders are \"much more likely than any other type of offender\" to commit a further sexual offense upon release from custody" }, { "page": "56-57", "parenthetical": "noting that therapy for sexual offenders is particularly important, as sexual offenders are \"much more likely than any other type of offender\" to commit a further sexual offense upon release from custody" } ], "opinion_index": 0, "case_paths": [ "/us/536/0024-01" ] }, { "cite": "79 Cornell L. Rev. 700", "category": "journals:journal", "reporter": "Cornell L. Rev.", "year": 1994, "pin_cites": [ { "page": "702", "parenthetical": "footnotes omitted" } ], "opinion_index": 0 }, { "cite": "757 N.E.2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "93 Ohio St.3d 1473", "category": "reporters:state", "reporter": "Ohio St. 3d", "year": 2001, "opinion_index": 0 }, { "cite": "760 N.E.2d 909", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "918" } ], "opinion_index": 0 }, { "cite": "144 Ohio App. 3d 539", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 362734 ], "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/144/0539-01" ] }, { "cite": "136 L. Ed. 2d 219", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "519 U.S. 930", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11662180, 11661892, 11662150, 11661925, 11662088, 11661867, 11661835, 11661805, 11662125, 11661968, 11662002, 11661778, 11662042 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0930-13", "/us/519/0930-05", "/us/519/0930-12", "/us/519/0930-06", "/us/519/0930-10", "/us/519/0930-04", "/us/519/0930-03", "/us/519/0930-02", "/us/519/0930-11", "/us/519/0930-07", "/us/519/0930-08", "/us/519/0930-01", "/us/519/0930-09" ] }, { "cite": "276 Mont. 155", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4531452 ], "weight": 2, "pin_cites": [ { "page": "166-67" }, { "page": "816" } ], "opinion_index": 0, "case_paths": [ "/mont/276/0155-01" ] }, { "cite": "765 F. Supp. 847", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7388746 ], "year": 1991, "pin_cites": [ { "page": "851", "parenthetical": "holding that the defendant's Fifth Amendment rights were violated where his probation was revoked based on his failure to complete a sexual treatment program that required incriminating admissions" } ], "opinion_index": 0, "case_paths": [ "/f-supp/765/0847-01" ] }, { "cite": "465 U.S. 420", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11336129 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "435" }, { "page": "424" }, { "page": "435" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/us/465/0420-01" ] }, { "cite": "259 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572105, 8572043, 8572075, 8572013, 8572147 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0304-04", "/nc/298/0304-02", "/nc/298/0304-03", "/nc/298/0304-01", "/nc/298/0304-05" ] }, { "cite": "266 U.S. 34", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6136505 ], "weight": 2, "year": 1924, "pin_cites": [ { "page": "40" }, { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/us/266/0034-01" ] }, { "cite": "256 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554236 ], "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0337-01" ] }, { "cite": "184 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "909" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550010 ], "year": 1971, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0046-01" ] }, { "cite": "111 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "497 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6268812, 6267060, 6268214, 6267352, 6267610, 6266778, 6268507, 6267902 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/1021-08", "/us/497/1021-02", "/us/497/1021-06", "/us/497/1021-03", "/us/497/1021-04", "/us/497/1021-01", "/us/497/1021-07", "/us/497/1021-05" ] }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "325 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487626 ], "year": 1989, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0001-01" ] }, { "cite": "407 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "163" } ], "opinion_index": 0 }, { "cite": "329 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555500 ], "year": 1991, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0534-01" ] }, { "cite": "231 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558867 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0640-01" ] }, { "cite": "218 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "871" }, { "page": "871" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552166 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "229" }, { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0227-01" ] }, { "cite": "541 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155586, 1155627, 1155822, 1155869, 1155807 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0119-05", "/nc/351/0119-03", "/nc/351/0119-02", "/nc/351/0119-04", "/nc/351/0119-01" ] }, { "cite": "518 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "229" }, { "page": "230" }, { "page": "230" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 560", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11146025 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "570" }, { "page": "571" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0560-01" ] }, { "cite": "343 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "254", "parenthetical": "Martin, J., concurring" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525211 ], "year": 1986, "pin_cites": [ { "page": "584", "parenthetical": "Martin, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0577-01" ] }, { "cite": "359 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "775", "parenthetical": "quoting State v. Fie, 80 N.C. App. 577, 584, 343 S.E.2d 248, 254 (1986) (Martin, J., concurring)" } ], "opinion_index": 0 }, { "cite": "320 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723431 ], "year": 1987, "pin_cites": [ { "page": "627", "parenthetical": "quoting State v. Fie, 80 N.C. App. 577, 584, 343 S.E.2d 248, 254 (1986) (Martin, J., concurring)" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0626-01" ] }, { "cite": "526 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "693", "parenthetical": "holding that, as the juvenile charged with delinquency on the grounds of committing a second-degree sexual offense failed to move for dismissal at the close of the evidence against him, he was precluded from challenging the sufficiency of the evidence on appeal" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091655 ], "year": 2000, "pin_cites": [ { "page": "19", "parenthetical": "holding that, as the juvenile charged with delinquency on the grounds of committing a second-degree sexual offense failed to move for dismissal at the close of the evidence against him, he was precluded from challenging the sufficiency of the evidence on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0014-01" ] } ], "analysis": { "cardinality": 1153, "char_count": 27601, "ocr_confidence": 0.756, "pagerank": { "raw": 3.871168375060749e-07, "percentile": 0.9004941986965264 }, "sha256": "ed73f869e244d655ebef3af1639e1610de58bd2593a69841192ea2573a3aefe0", "simhash": "1:8d6165671b461dd2", "word_count": 4382 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and CAMPBELL concur." ], "parties": [ "IN THE MATTER OF: Joseph D. Lineberry" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nJoseph D. Lineberry (\u201cjuvenile\u201d) appeals from orders of the trial court adjudicating juvenile to be delinquent and placing the custody of juvenile with the Youth Development Center. For the reasons stated herein, we affirm the order of the trial court adjudicating juvenile delinquent, but we vacate the order continuing custody of juvenile pending appeal, and we remand for proceedings consistent with this opinion.\nThe pertinent facts of this appeal are as follows: On 6 June 2000, the State filed two petitions seeking delinquency status for juvenile with the Rowan County District Court. The petitions accused juvenile of committing a sexual offense in the second degree and of taking indecent liberties with a fellow minor.\nThe matter came before the trial court on 23 June 2000, at which time the State presented evidence tending to show the following: On 5 February 2000, juvenile\u2019s ten-year-old cousin, \u201cB,\u201d spent the night at juvenile\u2019s residence. Juvenile was fourteen years old at the time. \u201cB\u201d testified that, after he had gone to sleep in juvenile\u2019s bedroom, juvenile removed \u201cB\u2019s\u201d clothing, placed duct tape over his mouth, held him down on the bed, and \u201cput his privates ... in [B\u2019s] butt.\u201d \u201cB\u201d affirmed that juvenile\u2019s actions were painful, but that he was unable to scream due to the duct tape over his mouth. \u201cB\u201d stated that he was approximately four feet, five inches tall at the time and weighed eighty-five pounds. Juvenile testified that he was six feet, two inches tall and weighed approximately one hundred and ninety pounds. According to \u201cB,\u201d juvenile warned him that \u201cif [he] told anybody he\u2019d hurt me.\u201d Despite the warning, \u201cB\u201d attempted to inform his aunt, juvenile\u2019s mother, of the assault immediately following his encounter with juvenile. \u201cB\u201d stated that he approached his aunt in the living room, where she was watching television, but that before he could tell her what had happened, she ordered him to \u201cget back in the room.\u201d \u201cB\u201d returned to juvenile\u2019s room and went to sleep.\nWhen \u201cB\u201d returned home the following day, he spoke of juvenile\u2019s actions with his brother, who immediately informed \u201cB\u2019s\u201d mother. \u201cB\u201d described his encounter with juvenile to his mother, who then took him to the hospital. \u201cB\u2019s\u201d mother testified that the examining physician found redness around \u201cB\u2019s\u201d anus, but no other physical manifestations of the assault.\nJuvenile testified at the hearing and denied touching \u201cB\u201d in any type of sexual or otherwise improper manner. Juvenile\u2019s mother, Debbie Lineberry, also testified that she heard no unusual noises on the evening in question, and noted that there was no duct tape in the house.\nAt the conclusion of the evidence, the trial court found that juvenile had committed a second-degree sexual offense and had taken indecent liberties with a child. The trial court delayed disposition of the matter pending completion of a sex offender evaluation. On 8 December 2000, the trial court held a hearing concerning the evaluation of juvenile and entered an order adjudicating juvenile delinquent on 12 January 2001. The disposition order required juvenile to cooperate with an intensive nonresidential treatment program for sex offenders.\nOn 25 May 2001, the trial court held a hearing upon a motion for review based on evidence that juvenile was not attending the required outpatient therapy. On 31 May 2001, the trial court entered a disposition and commitment order, committing juvenile to the custody of the Youth Development Center in order to complete a sex offender treatment program. On 7 June 2001, the trial court convened to address the presumption that a juvenile be released from secure custody pending appeal. After hearing the evidence presented, the court concluded that it was in the best interests of juvenile and the State that juvenile remain in custody pending appeal. Juvenile appeals from these orders.\nJuvenile presents five issues on appeal, arguing that the trial court erred by (1) finding juvenile to be delinquent; (2) displaying improper bias towards juvenile; (3) receiving testimony of a witness ex parte-, and (4) committing juvenile to the Youth Development Center pending appeal. Juvenile also contends that (5) the procedures for the recordation of trial testimony and proceedings in the juvenile court were inadequate to protect juvenile\u2019s constitutional and statutory rights.\nBy his first assignment of error, juvenile contends that the State failed to present sufficient evidence of juvenile\u2019s delinquency, and that the trial court erred in finding otherwise. Juvenile made no motion, however, to dismiss the petition at the close of the evidence during the adjudicatory hearing. As such, he has waived his right on appeal to challenge the sufficiency of the evidence against him. See N.C.R. App. P. 10(b)(3) (2002); In re Clapp, 137 N.C. App. 14, 19, 526 S.E.2d 689, 693 (2000) (holding that, as the juvenile charged with delinquency on the grounds of committing a second-degree sexual offense failed to move for dismissal at the close of the evidence against him, he was precluded from challenging the sufficiency of the evidence on appeal). We therefore dismiss this assignment of error.\nBy his second assignment of error, juvenile submits that the trial judge demonstrated improper bias towards juvenile during the adjudicatory hearing. Specifically, juvenile contends that the trial judge displayed bias by interrupting juvenile\u2019s counsel six times during his closing argument. Juvenile asserts that the comments made by the trial judge during these interruptions revealed the judge\u2019s lack of impartiality. We disagree.\nWe note first that juvenile made no motion for the trial judge\u2019s recusal based on allegations of bias. Further, where a party moves for recusal, the burden is on the movant to \u201c \u2018demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.\u2019 \u201d State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987) (quoting State v. Fie, 80 N.C. App. 577, 584, 343 S.E.2d 248, 254 (1986) (Martin, J., concurring)).\nWe discern no improper bias by the trial judge in the instant case. The interruptions of the closing argument by the trial judge were inconsequential and reveal no predisposition by the judge towards either party. For example, when counsel for juvenile stated that he \u201chope[d] I don\u2019t irritate the Court or bore you with bringing out these things\u201d the judge assured counsel that \u201cYou\u2019re not boring me[.]\u201d In another example, counsel for juvenile stated that, \u201cMore than two weeks before Ms. Rushner asked to talk to him, passed[,]\u201d at which point the judge correctly noted that the time period had in fact been ten days. Further, when counsel for juvenile stated that he \u201cunderstood] that the Court wishes to give credence to a victim that comes in and says this happenedf,]\u201d the judge assured counsel that, \u201cI\u2019m not here to give credence to anybody in particular. I\u2019m here to weigh the credibility of the witnesses and the evidence.\u201d We fail to perceive how the trial court\u2019s direct affirmation that it was impartial could form the basis of a claim of partiality.\nIn another incident, counsel for juvenile argued that \u201cB\u2019s\u201d account of events was not credible, in that he did not immediately inform Mrs. Lineberry of juvenile\u2019s assault. Specifically, counsel called \u201cB\u2019s\u201d testimony into doubt by stating, \u201csomething like this has just occurred to him, that he did not go to the woman he had no reason to think would do anything but be his friend [,]\u201d at which point the trial judge interrupted with the observation that Mrs. Lineberry was \u201c[t]he perpetrator\u2019s mother.\u201d\nIn the context of the transcript, it is clear that the trial court characterized Mrs. Lineberry as \u201cthe perpetrator\u2019s mother\u201d in order to direct counsel\u2019s attention to valid reasons for \u201cB\u2019s\u201d reluctance to confide in Mrs. Lineberry. Rather than exposing bias towards juvenile, the trial court\u2019s statement allowed counsel to refine his closing argument to the trial court by focusing more narrowly on \u201cB\u2019s\u201d credibility. The trial court\u2019s description of Mrs. Lineberry as \u201cthe perpetrator\u2019s mother\u201d for identification purposes does not indicate that the trial court believed that juvenile committed the offense any more than defense counsel\u2019s identification of \u201cB\u201d as \u201cthe victim\u201d indicates defense counsel\u2019s belief that \u201cB\u201d was in fact assaulted. Further interruptions by the trial court were similarly minor in nature and of no import. We therefore overrule juvenile\u2019s second assignment of error.\nIn his third assignment of error, juvenile asserts that the trial court violated his rights by receiving witness testimony outside of juvenile\u2019s presence. Under Article 1, section 23 of the North Carolina Constitution, a criminal defendant has the right to be present at every stage of his trial. See State v. Thomas, 134 N.C. App. 560, 570, 518 S.E.2d 222, 229, appeal dismissed and disc. review denied, 351 N.C. 119, 541 S.E.2d 468 (1999). \u201cJuveniles in delinquency proceedings are entitled to constitutional safeguards similar to those afforded adult criminal defendants.\u201d See In re Arthur, 27 N.C. App. 227, 229, 218 S.E.2d 869, 871 (1975), reversed on other grounds, 291 N.C. 640, 231 S.E.2d 614 (1977). Constitutional error will not form the basis of reversal on appeal, however, where it is shown that such error was harmless beyond a reasonable doubt. See N.C. Gen. Stat. \u00a7 15A-1443(b) (2001); State v. Brogden, 329 N.C. 534, 541, 407 S.E.2d 158, 163 (1991).\nDuring the 8 December 2000 hearing in the instant case, the trial court ordered the record to reflect\nthat there was a chambers conference that involved a conference call with Dr. Cappaletti. . . who prepared the court-ordered evaluation; that [counsel for juvenile] and the [district attorney], as well as the court counselors, had an opportunity to question Dr. Cappaletti about her evaluation about the alternatives to therapy available in lieu of training school for [juvenile]. And, in fact, we further briefed Dr. Cappaletti about the competing privately-obtained evaluation, and [counsel for juvenile] fleshed that out with Dr. Cappaletti to a degree.\nCounsel for juvenile confirmed that the conference call was made in his presence and with juvenile\u2019s knowledge and consent, stating that\nfor the record, [juvenile] knew when I started the chambers discussion and we started to handle the method in the discussion rather the confrontational manner that that was something we wanted to do as a way of facilitating the open discussion rather than the formal, confrontational type things that could otherwise be required. And we do appreciate the opportunity to handle the matter in that way. Thank you.\nDr. Cappaletti also submitted a written evaluation of juvenile to the court, which was available for all parties and is included in the record on appeal.\nAlthough juvenile was not present during Dr. Cappaletti\u2019s testimony, we hold that the error in excluding juvenile was harmless beyond a reasonable doubt. See Thomas, 134 N.C. App. at 571, 518 S.E.2d at 230. The conference call occurred in the presence of juvenile\u2019s counsel, who cross-examined the witness regarding her testimony. The substance of the conference call was placed on the record by the trial judge. Dr. Cappaletti\u2019s opinion regarding the matter was reduced to writing and available to all parties. Moreover, juvenile made no objections to his absence from the conference; on the contrary, counsel for juvenile thanked the trial judge for allowing the admission of evidence in an informal setting. In light of these circumstances, we cannot conclude that juvenile\u2019s exclusion from the proceedings had any impact on the outcome of the disposition. See State v. Huff, 325 N.C. 1, 35, 381 S.E.2d 635, 654 (1989), vacated and remanded on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990); Thomas, 134 N.C. App. at 571, 518 S.E.2d at 230. We therefore overrule this assignment of error.\nJuvenile next contends that the trial court erred in ordering juvenile to remain in custody during the pendency of his appeal. Under section 7B-2605 of the North Carolina General Statutes,\n[p] ending disposition of an appeal, the release of the juvenile, with or without conditions, should issue in every case unless the court orders otherwise. For compelling reasons which must be stated in writing, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile or the State.\nN.C. Gen. Stat. \u00a7 7B-2605 (2001). In the instant case, the trial court held a hearing on the issue of juvenile\u2019s release from custody pending appeal and found the following pertinent facts:\n3. The date of adjudication of felonious Second Degree Sex Offense and misdemeanor Indecent Liberties Between Minors was June 23, 2000;\n4. Upon request of the juvenile\u2019s first trial counsel, Ron Bowers; continuance was granted thereby delaying entry of a disposi-tional order;\n5. Three sex offender evaluations, attached and incorporated herein by reference, were received and considered;\n6. The juvenile has consistently expressed entrenched denial which diminishes his amenability to treatment;\n7. To date the juvenile has not participated in any sex offender therapy;\n9. The felonious Second Degree Sex Offense and misdemeanor Indecent Liberties Between Minors was committed in an aggressive, premeditated manner;\n10. The juvenile is frequently in the presence of other juveniles that have not been made aware of his adjudication for a sex offense;\n11. The juvenile has not been consistently closely supervised by his parents or other adults that have been made aware of the risks for re-offending; and,\n12. The juvenile is currently receiving sex offender specific treatment at the Swannanoa Valley Youth Development Center Juvenile Evaluation Center.\nBased on these facts, the trial court concluded that \u201c[Compelling reasons exist and it is in the best interest of the juvenile and the State that the juvenile remain in the custody of the Youth Development Center pending appeal.\u201d\nJuvenile objects to Finding Number Six by the trial court, in which the court found that juvenile \u201cconsistently expressed entrenched denial which diminishes his amenability to treatment[.]\u201d Juvenile contends that this finding indicates that the trial court denied juvenile\u2019s release because of his refusal to admit that he committed the offenses for which he was adjudicated delinquent. We agree with juvenile that this finding was improper.\nUnder the Fifth Amendment to the United States Constitution, no person \u201cshall be compelled in any criminal case to be a witness against himself[.]\u201d U.S. Const, amend. V. Similarly, Article I, section 23, of the North Carolina Constitution protects \u201cevery person charged with crime\u201d from being \u201ccompelled to give self-incriminating evidence[.]\u201d N.C. Const, art. I, \u00a7 23. The privilege against self-incrimination extends to juveniles charged with delinquency. See N.C. Gen. Stat. \u00a7 7B-2405(4) (2001); Arthur, 27 N.C. App. at 229, 218 S.E.2d at 871. The constitutional guarantees against self-incrimination should be liberally construed, see State v. Smith, 13 N.C. App. 46, 51, 184 S.E.2d 906, 909 (1971), and apply alike to civil and criminal proceedings, \u201c \u2018wherever the answer might tend to subject to criminal responsibility him who gives it.\u2019 \u201d Trust Co. v. Grainger, 42 N.C. App. 337, 339, 256 S.E.2d 500, 502 (quoting McCarthy v. Arndstein, 266 U.S. 34, 40, 69 L. Ed. 158, 161 (1924)), disc. review denied, 298 N.C. 304, 259 S.E.2d 300 (1979).\nA \u201cclassic penalty situation\u201d regarding the privilege against self-incrimination arises where the State, either expressly or by implication, asserts that invocation of the privilege will lead to revocation of probation. See Minnesota v. Murphy, 465 U.S. 420, 435, 79 L. Ed. 2d 409, 424 (1984). Various courts have applied the United States Supreme Court\u2019s holding in Murphy in the context of treatment programs for offenders. Such court-ordered treatment programs may implicate the \u201cclassic penalty situation,\u201d in that the therapeutic programs often require a convicted offender to admit to the offense for which he was found guilty. See, e.g., Mace v. Amestoy, 765 F. Supp. 847, 851 (D.Vt. 1991) (holding that the defendant\u2019s Fifth Amendment rights were violated where his probation was revoked based on his failure to complete a sexual treatment program that required incriminating admissions); State v. Fuller, 276 Mont. 155, 166-67, 915 P.2d 809, 816 (holding that the defendant was placed in the classic penalty situation when he was ordered, as a condition of his probation, to participate in a sexual offenders treatment program that required participants to disclose their offense history), cert. denied, 519 U.S. 930, 136 L. Ed. 2d 219 (1996); State v. Evans, 144 Ohio App. 3d 539, 550, 760 N.E.2d 909, 918 (holding that the classic penalty situation existed where the delinquent juvenile made incriminating statements during court-ordered therapy at a residential treatment center for drug offenders), appeal dismissed, 93 Ohio St.3d 1473, 757 N.E.2d 771 (2001). Courts have recognized that\n[t]he dramatic expansion of therapeutic sentencing alternatives has disturbing implications for the Fifth Amendment rights of convicted offenders, because cooperation of the patient is a prerequisite to successful therapy. Sex offenders ... often deny both the commission of an offense and the inappropriateness of their actions. The first step toward rehabilitation, however, is to admit that there is a problem. In criminal law, this translates into an admission of guilt, raising the question of whether the requirement of most therapy programs that a defendant accept responsibility for his actions violates the Fifth Amendment protection against self-incrimination.\nJessica Wilen Berg, Note, Give Me Liberty or Give Me Silence: Taking a Stand on Fifth Amendment Implications for Court- Ordered Therapy Programs, 79 Cornell L. Rev. 700, 702 (1994) (footnotes omitted).\nIn the instant case, the court ordered that juvenile undergo a sex offender evaluation, three of which were performed and submitted to the court. The court also ordered juvenile to be placed in the custody of the Youth Development Center and specifically ordered \u201cthat he attend and complete the Sex Offender Sex Treatment Program.\u201d At the hearing to determine whether juvenile should remain in custody pending his appeal, the juvenile court counselor assigned to juvenile\u2019s case testified that, if juvenile continued to deny the offense while undergoing treatment, \u201cthat will slow his progression through the treatment program.\u201d The counselor further verified that juvenile\u2019s \u201ccommitment time is connected directly to his \u2014 whether or not he will admit to the crime.\u201d After reviewing the evidence, the court found that juvenile\u2019s consistent refusal to admit to the offenses \u201cdiminishes his amenability to treatment\u201d and ordered that juvenile remain in custody pending appeal. This finding was error.\nIn finding that juvenile\u2019s refusal to admit to the offenses was a factor justifying his continued custody pending appeal, the trial court exposed juvenile to the classic penalty situation of choosing between the privilege against self-incrimination and prolonged confinement. See Murphy, 465 U.S. at 435, 79 L. Ed. 2d at 424. Juvenile has consistently maintained his innocence as to the offenses for which he was adjudicated delinquent, and which he is currently appealing. Thus, the trial court\u2019s conclusion that juvenile should remain in custody pending appeal based on juvenile\u2019s refusal to admit to the offense for which he was adjudicated delinquent violated juvenile\u2019s constitutional right against self-incrimination.\nWe note that the fact that juvenile denied the offenses for which he was adjudicated delinquent was but one of several reasons for the trial court\u2019s decision. The trial court made other findings of fact to support its conclusion that continued custody was in the best interests of the juvenile and of the State. Specifically, the trial court found that juvenile posed a risk to others, in that he had been adjudicated delinquent for offenses that often present a high rate for re-offense, and for which juvenile had received no therapy. See, e.g., McKune v. Lile, 536 U.S. 24, 33-34, 153 L. Ed. 2d 47, 56-57 (2002) (noting that therapy for sexual offenders is particularly important, as sexual offenders are \u201cmuch more likely than any other type of offender\u201d to commit a further sexual offense upon release from custody). Moreover, the offenses were committed \u201cin an aggressive, premeditated manner.\u201d Despite the fact that juvenile was often \u201cin the presence of other juveniles\u201d who were unaware of juvenile\u2019s adjudication, juvenile was not closely supervised by his parents. Because of the potential threat that juvenile posed to others, the trial court concluded that custody was in the best interests of the State.\nAlthough the trial court made appropriate findings to support its decision, we are unable to determine from the record before us the weight given by the trial court to the erroneous finding concerning juvenile\u2019s refusal to admit to his guilt. Compare State v. Canaday, 330 N.C. 398, 399, 410 S.E.2d 875, 876 (1991); State v. Clifton, 125 N.C. App. 471, 483, 481 S.E.2d 393, 401 (1997) (both adhering to the general rule that, under the Fair Sentencing Act, a defendant is entitled to a new sentencing hearing where the trial court errs in finding an aggravating factor). We therefore vacate the order continuing juvenile\u2019s custody pending appeal and remand the case to the trial court for proceedings not inconsistent with this opinion. See In re Bullabough, 89 N.C. App. 171, 184, 365 S.E.2d 642, 649 (1988) (holding that the trial court erred in ordering juvenile to remain in custody pending appeal without making appropriate findings). In doing so, we are aware of the likelihood that the passage of time may have rendered the issue of juvenile\u2019s custody pending appeal moot. We further note that, as the erroneous order continuing custody of juvenile pending appeal occurred after final adjudication and disposition of juvenile\u2019s case, the error by the trial court had no effect on the adjudication or disposition. See Bullabough, 89 N.C. App. at 184, 365 S.E.2d at 649; In re Bass, 77 N.C. App. 110, 117, 334 S.E.2d 779, 783 (1985) (both holding that post-trial proceedings had no effect on the adjudication and disposition of the juveniles).\nBy his final assignment of error, juvenile contends that the recordation procedures for transcribing juvenile court proceedings are inadequate to protect juvenile\u2019s rights. Juvenile contends that, as there was no official court reporter, and as there were certain portions of the taped testimony that were inaudible and thus not transcribed, the transcript in the instant case is incomplete and inadequate to preserve juvenile\u2019s rights on appeal. We disagree.\nUnder the Juvenile Code,\n[a]ll adjudicatory and dispositional hearings and hearings on probable cause and transfer to superior court shall be recorded by stenographic notes or by electronic or mechanical means. Records shall be reduced to a written transcript only when timely notice of appeal has been given. The court may order that other hearings be recorded.\nN.C. Gen. Stat. \u00a7 7B-2410 (2001) (emphasis added). Thus, the statute specifically provides for recordation of juvenile proceedings. Where a trial transcript is \u201centirely inaccurate and inadequate,\u201d precluding formulation of an adequate record and thus preventing appropriate appellate review, a new trial may be granted. State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curiam). Such, however, is not the case here. Instead, as was the case in State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000), affirmed per curiam, 354 N.C. 353, 554 S.E.2d 645 (2001), our review of the record reveals that \u201cthe transcript, despite its imperfections, is not so inaccurate as to prevent meaningful review by this Court.\u201d Id. at 168, 541 S.E.2d at 178. See also State v. McLaughlin, 323 N.C. 68, 108, 372 S.E.2d 49, 75 (1988) (noting that, \u201c[although the transcript in the case sub judice cannot be described as a model of reporting service, it is not so inaccurate as to prevent this Court from reviewing it for errors in defendant\u2019s trial\u201d), judgment vacated and remanded on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990). We therefore overrule juvenile\u2019s final assignment of error.\nIn conclusion, we hold that the trial court did not err in adjudicating juvenile to be delinquent. We therefore affirm this order. We further hold that the trial court erred in finding that juvenile\u2019s refusal during court-ordered therapeutic treatment to admit to the offenses for which he was adjudicated delinquent was a factor justifying his continued custody pending appeal. We therefore vacate this order and remand juvenile\u2019s case to the trial court for proceedings not inconsistent with this opinion.\nThe 12 January 2001 order of the trial court adjudicating juvenile delinquent is hereby\nAffirmed.\nThe 29 June 2001 order of the trial court continuing custody of juvenile pending appeal is hereby\nVacated.\nJudges HUDSON and CAMPBELL concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.", "Richard E. Jester for juvenile appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: Joseph D. Lineberry\nNo. COA02-113\n(Filed 3 December 2002)\n1. Appeal and Error\u2014 preservation of issues \u2014 juvenile delinquency \u2014 sufficiency of evidence \u2014 no motion to dismiss\nA juvenile waived his right to challenge on appeal the sufficiency of the evidence against him by failing to move to dismiss the petition at the close of evidence during the adjudicatory hearing.\n2. Juveniles\u2014 hearing \u2014 interruption of counsel \u2014 no bias\nA trial judge did not exhibit improper bias in a juvenile delinquency hearing by interrupting counsel where the interruptions were inconsequential and revealed no predisposition toward either party.\n3. Constitutional Law\u2014 right to be present at trial \u2014 juvenile disposition \u2014 chambers conference call\nAlthough it was error to exclude a juvenile from a chambers conference call with a doctor who prepared an evaluation of the juvenile, the error was harmless beyond a reasonable doubt because the call occurred in the presence of the juvenile\u2019s counsel, who cross-examined the witness; the substance of the call was placed on the record by the judge; the doctor\u2019s opinion was reduced to writing and was available to all parties; and the juvenile made no objections to his absence from the conference.\n4. Constitutional Law\u2014 self-incrimination \u2014 juvenile\u2019s refusal to admit guilt \u2014 custody pending appeal\nA juvenile\u2019s constitutional right against self-incrimination was violated where the court found that the juvenile\u2019s consistent refusal to admit to the offenses diminished his amenability to treatment and ordered that he remain in custody pending appeal.\n5. Juveniles\u2014 transcript of juvenile hearing \u2014 imperfect\nThe transcript of a juvenile proceeding, while imperfect, was not so inaccurate as to prevent meaningful review.\nAppeal by juvenile from orders entered 12 January 2001 and 29 June 2001 by Judge Charlie E. Brown in Rowan County District Court. Heard in the Court of Appeals 10 October 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.\nRichard E. Jester for juvenile appellant." }, "file_name": "0246-01", "first_page_order": 274, "last_page_order": 285 }