{ "id": 8918200, "name": "IN THE MATTER OF: Daniel Glenn Griffin, Juvenile", "name_abbreviation": "In re Griffin", "decision_date": "2004-02-03", "docket_number": "No. COA02-1592", "first_page": "487", "last_page": "495", "citations": [ { "type": "official", "cite": "162 N.C. App. 487" } ], "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": "520 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "792" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241095 ], "year": 1999, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0400-01" ] }, { "cite": "544 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685056, 685073, 684970, 685075 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0359-04", "/nc/352/0359-03", "/nc/352/0359-01", "/nc/352/0359-02" ] }, { "cite": "531 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "138 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080801 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/138/0549-01" ] }, { "cite": "578 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511305, 1511529, 1511154, 1511318, 1511452 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0689-01", "/nc/356/0689-05", "/nc/356/0689-03", "/nc/356/0689-02", "/nc/356/0689-04" ] }, { "cite": "572 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250373 ], "year": 2002, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0419-01" ] }, { "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 Burras, 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 Burras, 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": 7, "pin_cites": [ { "page": "(b)" }, { "page": "(a)" }, { "page": "(a)(2)" }, { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 724, "char_count": 17740, "ocr_confidence": 0.753, "pagerank": { "raw": 2.1145832156333555e-07, "percentile": 0.7636425907456381 }, "sha256": "7be19ced85482c5b289c3693a0e17b54bec8d3a43a8a67d4a18adec5c78bea0c", "simhash": "1:6a67f32df2aa475c", "word_count": 2918 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TIMMONS-GOODSON concur." ], "parties": [ "IN THE MATTER OF: Daniel Glenn Griffin, Juvenile" ], "opinions": [ { "text": "ELMORE, Judge.\nDaniel Glenn Griffin (respondent) appeals from juvenile orders adjudicating him delinquent for commission of first-degree sexual offense in violation of N.C. Gen. Stat. \u00a7 14-27.4, and imposing a probationary sentence. Respondent brings forth a single assignment of error, asserting the trial court erred by denying his motion to suppress a statement respondent gave to the detective investigating this case. However, we do not address this issue because we conclude that a fatal variance existed between the juvenile petition filed herein and the evidence upon which respondent was adjudicated delinquent, in that (1) the petition alleged only sexual offense \u201cby force against the victim\u2019s will;\u201d (2) there was no evidence presented at the adjudicatory hearing which tended to show respondent committed forcible sexual offense; and (3) the hearing transcript indicates the trial court adjudicated respondent a juvenile first-degree sex offender based on the respective ages of respondent and the victim, despite the petition\u2019s failure to allege either the victim\u2019s age or the difference in age between respondent and the victim. This fatal variance between the juvenile petition and the evidence upon which respondent was adjudicated delinquent compels us to vacate the adjudication and disposition orders.\nEvidence presented at the adjudicatory hearing tended to show that respondent, who was then twelve years old, respondent\u2019s sixteen-year-old half-brother, and the victim, then four, spent the weekend of 10 November 2000 at their grandmother\u2019s home. Respondent and the victim were cousins. The victim\u2019s mother testified that upon returning home, the victim told her that respondent \u201cstuck his [penis] in [the victim\u2019s] butt.\u201d Respondent\u2019s half-brother testified that on the weekend in question he heard the victim say respondent had \u201clicked [the victim\u2019s penis] and stuck [respondent\u2019s penis] in [the victim\u2019s] butt.\u201d Dr. Cindy Brown examined the victim on 13 November 2000 and noted redness around his anal opening, which she testified was \u201cconsistent with penetration\u201d but could also be caused by poor hygiene. During an interview with Detective Preston Hunnicutt of the Buncombe County Sheriff\u2019s Department on 16 November 2000, respondent stated that he \u201clicked [the victim] on his private\u201d and \u201cstuck [respondent\u2019s] private in [the victim\u2019s] butt.\u201d\nOn or about 1 October 2001, a juvenile petition was filed seeking adjudication of respondent as delinquent pursuant to N.C. Gen. Stat. \u00a7 7B-1501(7) (2003). The petition alleged only that on or about 10 November 2000, in Buncombe County, respondent, then 12 years old, \u201cunlawfully, willfully, and feloniously engage [d] in a sex offense with [the victim] by force against the victim\u2019s will.\u201d At the adjudicatory hearing on 12 February 2002, after the close of the State\u2019s evidence, the following exchange took place between respondent\u2019s trial counsel, the prosecutor, and the trial court:\nBY MR. WILLIAMS [Respondent\u2019s trial counsel]:\nYour Honor, at this time I would like to make a motion to dismiss. . . . Having reviewed the juvenile petition, it is clear that the \u2014 it clearly states . . . that the juvenile Daniel Griffin did unlawfully and willfully engage in a sex offense with [the victim] by force against the victim\u2019s will. The petition alleges force, and I don\u2019t believe the Court can find any evidence as to force that has been presented on record this morning or this afternoon.\nBY THE STATE:\nYour Honor .... Guilty of first degree sex offense is (inaudible) who is a child under the age of 13 \u2014 and if he\u2019s 12 years old, he\u2019s four years older than the victim \u2014 (inaudible). The statute is clear, 14-27.4, also in terms of amending a petition when it does not change the nature of offense [sic] alleged. (Inaudible) It does not change the nature of the offense as alleged.... This case petition is valid. There is no error in the petition.\nBY THE COURT:\nAre you making a motion to amend the petition at this time?\nBY THE STATE:\nIf that\u2019s the case, the State would amend just the language that said \u201cwith [the victim].\u201d We would delete \u201cby force against the victim\u2019s will\u201d in terms of that case, Judge. But in terms of \u2014 in 70.2400, the amendment \u2014 the petition could be amended when the amendment does not change the nature of the offense alleged. (Inaudible) In this case it does not change the nature of the offense.\nBY THE COURT:\nNor does it seem to change the \u2014 I mean, he had notice all along that this is what the offense was concerning.\nBY THE STATE:\nThe offense was concerning 14-27.4, first degree sexual offense. It\u2019s an \u201cor.\u201d It\u2019s not an \u201cand.\u201d So the State does not have to elect to proceed under one or the other. It could go with both. . . .\nBY MR. WILLIAMS:\n.... There are two theories refined in [N.C. Gen. Stat. \u00a7 14-27.4]. One is \u2014 one concern is age. I\u2019ll point out in the petition there is nothing as to [the victim\u2019s] age representing [sic] therein. . . . There hasn\u2019t been one iota of evidence presented that any force was used. . . . The petition should [be] dismissed.\nBY THE COURT:\nAre you telling me that until today when the case went for trial that you had no idea the victim was a four-year-old child and a cousin of your client? Is that what you\u2019re telling me? You keep talking about no notice.... So you\u2019re not \u2014 you\u2019re acknowledging that you had discovery and information about this case, that it involved a four-year-old child?\nBY MR. WILLIAMS:\nI\u2019m just \u2014 I\u2019m just asking the Court to take notice of the procedures.\nBY THE COURT:\nAnd I\u2019m asking you a question. Did you have notice that it involved a four-year-old child?\nBY MR. WILLIAMS:\nWe certainly had cause to believe that it was a four-year-old child.\nBY THE COURT:\nDid you have \u2014 did you receive any discovery from the State such as a C and E and your client\u2019s statement and statements made by other?\nBY MR. WILLIAMS:\nYes.\nBY THE COURT:\nOkay. Your motion to dismiss is denied. Will there be evidence for your client?\nAfter respondent declined to present any evidence, the trial court again denied respondent\u2019s renewed motion to dismiss and proceeded to hear the State\u2019s closing argument, as follows:\nBY THE STATE:\n.... I\u2019ll argue first in this case, Judge, there are instructions on this offense. . . . First, the defendant engages in a sexual act with the victim. . . . Second, (inaudible) the victim was a child under the age of 13. Third, at the time the defendant \u2014 in this case the juvenile defendant was at least 12 years old and was four years older than the victim. In this case, Judge, we have\u2014 every element has been satisfied in this case. . . . Under 14.27.41 [sic], a sexual act has occurred with a victim who is a child under the age of 12 and a defendant \u2014 excuse me \u2014 a juvenile of at least 12 years old and at least four years older than \u2014 that\u2019s the evidence from the State, Judge. . . . The fact that the sexual offense of someone that is 12 years old uses his influence over a person who\u2019s four is why our statutes have these types of laws in them. .. . The State would ask you to find him delinquent beyond a reasonable doubt.\nThereafter, the trial court ruled from the bench as follows:\nBY THE COURT:\n.... In this matter, after hearing all of the evidence and arguments of counsel, this Court finds beyond a reasonable doubt that on November 10, 2000, Daniel Griffin, who was then a 12-year-old child having a date of birth of 9-2-88, did commit a sex offense upon the body of [the victim], who was a four-year-old child having a date of birth 9-16-96, the sex offense consisting of licking the private part of that child as well as penetrating the anus of that child with his penis, and adjudicates him delinquent by reason of committing a first degree sexual offense. . . .\nBy written order entered the same day as the adjudicatory hearing, using the \u201cJuvenile Adjudication Order\u201d form promulgated by the Administrative Office of the Courts, the trial court made the following findings of fact and conclusions of law:\nThat the juvenile through his attorney denies the allegations alleged in the petition filed October 1, 2001. The Court finds after hearing the evidence presented that the juvenile did commit the act alleged and finds him to be delinquent by reason of felony sex offense in violation of G.S. 14-27.4, felony class Bl.\nFrom this order and the subsequent disposition order entered 14 June 2002, respondent appeals.\nAt the outset we note that respondent, by choosing to assign error only to the trial court\u2019s denial of his motion to suppress respondent\u2019s statement to Detective Hunnicutt, has not raised on appeal the issue of whether a fatal variance existed between the petition and the evidence upon which respondent was adjudicated delinquent. This issue has instead been presented by the Appellate Defender\u2019s amicus curiae brief, the filing of which was authorized by N.C.R. App. P. 28(i) and allowed by this Court\u2019s 10 October 2003 \u2022order. While N.C.R. App. P. 10(a) provides that \u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal,\u201d we are mindful that N.C.R. App. P. 2 vests this Court with the authority to \u201csuspend or vary the requirements or provisions of any of [the Rules of Appellate Procedure] in a case pending before it upon application of a party or upon its own initiative\u201d in order \u201c[t]o prevent manifest injustice to a party[.]\u201d In light of the potential for manifest injustice if the issue raised by the Appellate Defender\u2019s amicus brief \u2014 i.e., whether there existed a fatal variance between the petition\u2019s allegations and the evidence presented at the adjudication hearing, such that respondent was adjudicated delinquent for commission of a crime that was not properly charged in the petition \u2014 is not addressed, we hereby exercise our authority pursuant to N.C.R. App. P. 2 and consider the \u201cfatal variance\u201d issue.\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 State v. Drummond, 81 N.C. App. 518, 520, 344 S.E.2d 328, 330 (1986) (quoting In re Burras, 275 N.C. 517, 530, 169 S.E.2d 879, 887 (1969)). We have previously stated that a valid bill of indictment is necessary in order to properly obtain jurisdiction over a criminal defendant charged with a felony. State v. Poole, 154 N.C. App. 419, 422, 572 S.E.2d 433, 436 (2002), cert. denied, 356 N.C. 689, 578 S.E.2d 589 (2003). N.C. Gen. Stat. \u00a7 14-27.4(b) (2003) provides that any person who commits a first-degree sexual offense \u201cis guilty of a Class B1 felony.\u201d The pleading in felony cases is an indictment, unless there is a waiver, in which case the pleading is an information. See N.C. Gen. Stat. \u00a7 15A-923(a) (2003). \u201cA criminal pleading must contain .... [a] plain and concise factual statement in each count which . . . asserts facts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\u201d N.C. Gen. Stat. \u00a7 15A-924(a)(5) (2003). Similarly, the petition in a juvenile action serves as the pleading, see N.C. Gen. Stat. \u00a7 7B-1801 (2003), and a petition alleging delinquency must \u201ccontain a plain and concise statement. . . 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 allegation.\" N.C. Gen. Stat. \u00a7 7B-1802 (2003) (emphasis added). Therefore, a petition in a juvenile action serves essentially the same function as an indictment in a felony prosecution and is subject to the same requirement that it aver every element of a criminal offense, with sufficient specificity that the accused is clearly apprised of the conduct for which he is being charged.\nAs noted above, the juvenile petition in the present case alleged only that respondent, then 12 years old, \u201cunlawfully, willfully, and feloniously engage [d] in a sex offense with [the victim] by force against the victim\u2019s will.\u201d Pursuant to N.C. Gen. Stat. \u00a7 14-27.4,\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; or\n(2) With another person by force and against the will of the other person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or\nb. Inflicts serious personal injury upon the victim or another person; or\nc. The person commits the offense aided and abetted by one or more other persons.\nN.C. Gen. Stat. \u00a7 14-27.4(a) (2003).\nAfter a thorough review of the record and transcript, we conclude that the State has failed to bring forth any evidence that respondent \u201cengagefd] in a sex offense with [the victim] by force against the victim\u2019s will,\u201d as alleged in the juvenile petition. There was simply no evidence presented that respondent either used or threatened physical force against the victim, as is required for conviction of first-degree sexual offense under N.C. Gen. Stat. \u00a7 14-27.4(a)(2). Instead, we conclude from our examination of the transcript that the State\u2019s contention that respondent committed first-degree sex offense was based entirely on the relative ages of respondent and the victim, as provided in N.C. Gen. Stat. \u00a7 14-27.4(a)(l). Where the illegality of sexual activity is based upon the relative ages of the parties, age is an essential element of the offense. State v. Locklear, 138 N.C. App. 549, 531 S.E.2d 853, disc. review denied, 352 N.C. 359, 544 S.E.2d 553 (2000). A juvenile petition which purports to charge first-degree sexual offense based on the ages of the parties is fatally defective if it does not allege the ages of both the victim and the defendant. In re Jones, 135 N.C. App. 400, 409, 520 S.E.2d 787, 792 (1999). As noted above, the petition in the present case contained no allegations as to the victim\u2019s age or the difference in age between respondent and the victim.\nThe juvenile adjudication order which is the subject of this appeal states, in broad terms, that the trial court \u201cfinds [respondent] to be delinquent by reason of felony sex offense in violation of G.S. 14-27.4, felony class Bl.\u201d However, we conclude from our examination of the hearing transcript that the trial court determined respondent committed a first-degree sexual offense based solely on the relative ages of respondent and the victim, rather than, as alleged in the petition, on use of force by respondent to overcome the victim\u2019s will. The trial court denied respondent\u2019s motion to dismiss after establishing that respondent\u2019s trial counsel was aware of the victim\u2019s age. Moreover, the trial court\u2019s oral ruling from the bench contained specific findings regarding the ages of both respondent and the victim, but lacked any findings concerning use of force by respondent.\nFor the reasons stated above, the juvenile order adjudicating respondent delinquent and the subsequent dispositional order are vacated.\nVacated.\nJudges WYNN and TIMMONS-GOODSON concur.\n. We note that the certificate of service accompanying the amicus brief indicates a copy was properly served upon the assistant attorney general representing the State on appeal, and that the State, though permitted by our appellate rules to do so, chose not to file a reply brief to the amicus brief. See N.C.R. App. P. 28(i) (\u201cReply briefs of the parties to an amicus curiae brief will be limited to points or authorities presented in the amicus curiae brief which are not presented in the main briefs of the parties.\u201d)", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State.", "James L. Goldsmith, Jr. for respondent-appellant.", "Appellate Defender Staples Hughes and Assistant Appellate Defender Matthew D. Wunsehe, amicus curiae." ], "corrections": "", "head_matter": "IN THE MATTER OF: Daniel Glenn Griffin, Juvenile\nNo. COA02-1592\n(Filed 3 February 2004)\nJuveniles\u2014 delinquency \u2014 first-degree sexual offense \u2014 fatal variance between petition and evidence\nThe Court of Appeals exercised its discretionary authority under N.C. R. App. P. 2 and determined that a juvenile order adjudicating respondent a delinquent for commission of first-degree sexual offense and the subsequent dispositional order should be vacated because a fatal variance existed between the juvenile petition and the evidence upon which respondent was adjudicated delinquent, including that: (1) the petition alleged only sexual offense by force against the victim\u2019s will; (2) there was no evidence presented at the adjudicatory hearing which tended to show respondent committed forcible sexual offense; and (3) the hearing transcript indicates the trial court adjudicated respondent a juvenile first-degree sex offender based on the respective ages of respondent and the victim, despite the petition\u2019s failure to allege either the victim\u2019s age or the difference in age between respondent and the victim.\nAppeal by respondent from juvenile adjudication order entered 12 February 2002 by Judge Shirley H. Brown in Buncombe County District Court and from juvenile disposition order entered 14 June 2002 by Judge Bradley B. Letts in Haywood County District Corut. Heard in the Court of Appeals 28 October 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State.\nJames L. Goldsmith, Jr. for respondent-appellant.\nAppellate Defender Staples Hughes and Assistant Appellate Defender Matthew D. Wunsehe, amicus curiae." }, "file_name": "0487-01", "first_page_order": 515, "last_page_order": 523 }