{
  "id": 8437958,
  "name": "In the Matter of: D.W.",
  "name_abbreviation": "In re D.W.",
  "decision_date": "2005-07-19",
  "docket_number": "No. COA04-1211",
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    "judges": [
      "Judges WYNN and TIMMONS-GOODSON concur."
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    "parties": [
      "In the Matter of: D.W."
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      {
        "text": "MARTIN, Chief Judge.\nDefendant juvenile, D.W., was adjudicated responsible for first-degree attempted rape and indecent liberties between children. A sentence of nine months probation was imposed. For the reasons that follow, we find no error in the trial court\u2019s ruling.\nThe State presented evidence at trial tending to show the following: In June 2004, eight-year-old A.M. lived with her mother, stepfather, fourteen-year-old step-brother (D.W.), three-year-old brother, and six-week-old brother. A.M. testified that on 23 June 2004 she was in the living room sitting on the couch with her baby brother. At the time, her mother was in her bedroom with the three-year-old. D.W. was in his room, then came out, went into the kitchen, and went to the mailbox. When D.W. came back into the house he took the baby from A.M. and put the baby in his crib. D.W. then told A.M. to \u201ccome here\u201d and pulled her into his room. A.M. testified that D.W. pulled down her pants and touched her \u201cprivate\u201d with his \u201cprivate.\u201d A.M.\u2019s mother entered D.W.\u2019s room and saw D.W. run into the closet. At that time his pants were down around his legs. A.M. was shown a drawing of a boy without clothing and a girl without clothing and was able to identify their body parts. A.M. indicated on the drawings that D.W. touched her vagina with his penis.\nThe testimony of A.M.\u2019s mother and Officer Adrian Hucks of the Charlotte-Mecklenburg Police Department indicated that A.M. told each of them the same sequence of facts. A.M.\u2019s mother testified that when she entered the room, she saw A.M. in D.W.\u2019s bed with the covers up to her neck. She removed the covers from A.M. and found that the child was not wearing any bottoms. She waited for D.W.\u2019s father to return home from work, then she and D.W.\u2019s father talked to D.W. about the incident. D.W. maintained that he did not do anything. A.M.\u2019s mother called the police, and Officer Hucks arrived and took a statement from A.M. Later, A.M. complained that she felt a burning sensation when she urinated, so her mother took her to the hospital.\nAt the close of the State\u2019s evidence, defendant juvenile moved to dismiss the charges based on the insufficiency of the evidence and a failure to show the ages of A.M. and D.W. A review of the evidence showed that evidence of A.M.\u2019s age had been presented, but there had been no evidence of D.W.\u2019s age. The State was permitted, over defendant juvenile\u2019s objection, to reopen the evidence and present evidence that D.W. was fourteen years of age at the time of the incident.\nDefendant juvenile presented testimony on his own behalf. His testimony during direct examination was not recorded and is therefore not included in the transcript. However, his testimony on cross-examination is in the transcript before us. D.W. testified on cross-examination that on the morning of 23 June 2004 he watched a movie. After the movie he went to the bathroom. A.M. was in his room when he returned. D.W. testified that he was on the floor when his step-mother came into the room. When he heard her coming, D.W. ran into the closet. He testified that he was not pulling his pants up while he ran to the closet. D.W. did not leave the closet until A.M. and his step-mother left the room.\nThe trial court adjudicated defendant juvenile responsible for attempted first-degree rape and indecent liberties between minors. The trial court imposed a sentence of nine months probation. Defendant juvenile appeals.\nThe record on appeal contains six separate assignments of error. Defendant brings forward three of the assignments of error in two separate arguments. The remaining assignments of error are deemed abandoned. N.C. R. App. P. 28(a) (2004). Defendant asserts that (1) he is entitled to a new trial because although he testified at trial, the trial court inadvertently failed to record his testimony, and (2) the trial court erred in denying his motion to dismiss at the end of all of the evidence when the evidence was insufficient to support an adjudication that defendant committed attempted first-degree statutory rape and indecent liberties between children. We will first address the trial court\u2019s denial of defendant\u2019s motion to dismiss.\nI. Motion to Dismiss\nIn reviewing a motion to dismiss on the grounds of sufficiency of the evidence, the issue is \u201cwhether substantial evidence exists as to each essential element of the offense charged and of the defendant being the perpetrator of that offense.\u201d State v. Glover, 156 N.C. App. 139, 142, 575 S.E.2d 835, 837 (2003). \u201cSubstantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). A motion to dismiss should be denied if there is substantial evidence, whether direct, circumstantial, or both, that the defendant committed the offense charged. State v. Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005). \u201cThe trial court must consider the evidence \u2018in the light most favorable to the State,\u2019 and the State is entitled to every reasonable inference to be drawn from it.\u201d State v. Quinn, 166 N.C. App. 733, 739, 603 S.E.2d 886, 889 (2004) (quoting State v. Bright, 301 N.C. 243, 257, 271 S.E.2d 368, 377 (1980)).\nA. Attempted First-Degree Rape\nDefendant contends that the trial court erred when it failed to dismiss the allegation of attempted first-degree rape at the end of all of the evidence. In order for defendant to be adjudicated responsible for attempted first-degree rape of a child,\nthe State must show that the victim was twelve years old or less, that the defendant was at least twelve years old and at least four years older than the victim, that the defendant had the intent to engage in vaginal intercourse with the victim, and that the defendant committed an act that goes beyond mere preparation but falls short of actual commission of intercourse.\nState v. Gregory, 78 N.C. App. 565, 571, 338 S.E.2d 110, 114 (1985), cert. denied, 498 U.S. 879, 112 L. Ed. 2d 171 (1990); see N.C. Gen. Stat. \u00a7 14-27.2 (2003). Since Gregory, the statute was amended to read that the victim must be thirteen years old or less. N.C. Gen. Stat. \u00a7 14-27.2 (2003) (stating that a person is guilty of first-degree rape for vaginal intercourse \u201cwith 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\u201d). The evidence tended to show that defendant was fourteen years old and AM was eight years old at the time of the offense. Therefore, defendant was six years older than the victim, and the age elements of attempted first-degree rape of a child are satisfied.\nThe intent element of attempted first-degree rape is established if the defendant, at any time during the attempt, intended to gratify his passion upon the victim, notwithstanding any resistance on the victim\u2019s part. State v. Moser, 74 N.C. App. 216, 220, 328 S.E.2d 315, 317 (1985). Because intent is \u201can attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence, it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances which may be inferred.\u201d Id.\nDefendant argues that the State did not present the evidence necessary to find an intent to engage in vaginal intercourse. We disagree. The evidence as viewed in the light most favorable to the State is as follows: defendant told A.M. to come into his room. A.M. entered the room, and defendant pulled down A.M.\u2019s pants. Defendant then pulled down his own pants and touch\u00e9d A.M.\u2019s vagina with his penis. When he heard A.M.\u2019s mother, defendant ran to his closet while pulling up his pants. While A.M.\u2019s mother was in the room defendant hid in the closet. At that time, A.M. was under the covers in defendant\u2019s bed wearing no pants or underwear. The age of the defendant, the act of defendant touching his penis to A.M.\u2019s vagina, and defendant running to the closet and hiding from A.M.\u2019s mother permit a reasonable inference that defendant had the requisite intent to gratify his passion through vaginal intercourse with A.M.\nDefendant also \u201ccommitted an act that goes beyond mere preparation\u201d when he pulled down his pants and touched his penis to A.M.\u2019s vagina, thereby satisfying the final element of the offense. Gregory, 78 N.C. App. at 571, 338 S.E.2d at 114 (1985). The trial court properly denied defendant\u2019s motion to dismiss for insufficiency of the evidence on the charge of attempted first-degree rape of a child.\nB. Indecent Liberties Between Minors\nDefendant also asserts that the trial court erred by failing to dismiss the allegation in the petition that D.W. committed indecent liberties between children. Defendant contends that the State did not present any evidence that defendant acted with the purpose or intent of gratifying sexual desire. Under N.C. Gen. Stat. \u00a7 14-202.2 (indecent liberties between children),\n(a) A person who is under the age of 16 years is guilty of taking indecent liberties with children if the person either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex who is at least three years younger than the defendant for the purpose of arousing or gratifying sexual desire; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex who is at least three years younger than the defendant for the purpose of arousing or gratifying sexual desire.\nN.C. Gen. Stat. \u00a7 14-202.2 (2003). As we have noted, defendant was fourteen years old and A.M. was eight years old at the time of the offense, creating more than the required three-year age difference between them.\nTo prove that defendant had \u201cthe purpose of arousing or gratifying a sexual desire,\u201d id., there must be some showing of intent, maturity, experience, or purpose in acting. In re T.C.S, 148 N.C. App. 297, 302-03, 558 S.E.2d 251, 254 (2002). The act alone does not infer the gratification of sexual desires when the offense is between children. Id. The facts in this case are similar to the facts of In re T.C.S., where the evidence presented by the State was sufficient to deny a motion to dismiss because the defendant was seen leaving a secretive wooded area hand-in-hand with the victim, who appeared disheveled. Id. Defendant in this case was seen in his room running to the closet while pulling up his pants, and the victim was found in defendant\u2019s bed unclothed from the waist down. The evidence presented by the State was sufficient to show defendant had the requisite \u201cintent\u201d and \u201cpurpose in acting\u201d to gratify a sexual desire. Id. The trial court properly denied defendant\u2019s motion to dismiss for insufficiency of the evidence on the charge of indecent liberties between children. Defendant\u2019s argument with respect to both of the offenses is overruled.\nII. Sufficiency of the Transcript\nDefendant also alleges that he is entitled to a new trial because the trial court inadvertently failed to record his testimony on direct examination at trial. \u201cIf a transcript is altogether inaccurate and no adequate record of what transpired at trial can be reconstructed, the court must remand for a new trial.\u201d In re Rholetter, 162 N.C. App. 653, 664, 592 S.E.2d 237, 244 (2004). A new trial is appropriate if the incomplete nature of the transcript prevents the appellate court from conducting a \u201cmeaningful appellate review.\u201d In re Hartsock, 158 N.C. App. 287, 293, 580 S.E.2d 395, 399 (2003).\nIn the present case, we are able to conduct a meaningful review of defendant\u2019s appeal for two reasons. First, defendant\u2019s only other argument on appeal is the trial court\u2019s denial of his motion to dismiss. As we have held above, the State presented substantial evidence of every element of each offense. Regardless of what defendant might have testified to on direct examination, we are still required, upon a motion to dismiss, to consider the evidence \u201cin the light most favorable to the State; [and] the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom.\u201d State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Any contradictions or discrepancies the defendant might have raised in his direct examination \u201care for the [fact-finder] to resolve and do not warrant dismissal.\u201d Id. Therefore, because the record before us clearly shows that the evidence presented by the State was sufficient to deny defendant\u2019s motion to dismiss, we are able to conduct meaningful review of defendant\u2019s sole argument on appeal. See In re Rholetter, 162 N.C. App. 653, 664-65, 592 S.E.2d 237, 244 (2004) (stating that where \u201cnone of the ... findings of fact and conclusions of law in which respondent assigns error are supported solely on [the missing] testimony,\u201d respondent failed to prove that the transcript was \u201caltogether inaccurate and inadequate\u201d).\nSecond, though the direct examination of defendant was not on record in the transcript, the cross-examination of defendant by the State is included in the transcript. So long as the missing parts of the transcript can be reconstructed from the record, and the transcript is adequate to allow the defendant to raise appellate issues, a new trial should not be granted. State v. Hammonds, 141 N.C. App. 152, 167-68, 541 S.E.2d 166, 177-78 (2000), aff\u2019d per curiam, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied, 536 U.S. 907, 153 L. Ed. 2d 184 (2002). Defendant\u2019s testimony during cross-examination provides a partial reconstruction of his account of what took place. He testified that after watching a movie he went to the bathroom. A.M. was in his room when he returned. He was sitting on the floor when his step-mother came into the room, and when he heard her coming, he ran into the closet. He testified that he was not pulling his pants up while he ran to the closet.\nDefendant\u2019s attorney also summarized his testimony during her argument in support of her motion to dismiss. Her argument further reconstructs defendant\u2019s account of the sequence of events:\n[W]hat his evidence has indicated is the question is why did he run in the closet? ... He knew he was in trouble because he had left the house without his stepmother\u2019s permission. His [father has] indicated that that would indeed get him into trouble. And so when he (inaudible) the house, there\u2019s also (inaudible) not just even between the two of them which is contradictory to what [AM\u2019s mother] testified to when she was on the stand. . . . The child ran into the closet to avoid her, that the young lady was on his bed, that he did not know her state of apparel because she had the covers over her.... That I don\u2019t know why and my client does not know why she would have her clothes off or down or however because [he] was not in the room when she came in the room. He went to the bathroom, and then when he came to the room, she was under the covers in the bedroom. So he doesn\u2019t know exactly what was going on in regards to that.\nThe import of defendant\u2019s testimony is in the record before us through his cross-examination and his attorney\u2019s argument. Because we are able to reconstruct the missing testimony, and because we can rule upon defendant\u2019s only other argument based on the sufficiency of the State\u2019s evidence, the record before us is adequate. This argument is overruled.\nIn the judgment of the trial court, we find\nNo error.\nJudges WYNN and TIMMONS-GOODSON concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Gail E. Dawson, for the State.",
      "Anthony M. Brannon for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "In the Matter of: D.W.\nNo. COA04-1211\n(Filed 19 July 2005)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nThree of defendant juvenile\u2019s six assignments of error that he did not bring forward on appeal are deemed abandoned pursuant to N.C. R. App. P. 28(a).\n2. Rape\u2014 attempted first-degree \u2014 motion to dismiss\u2014 sufficiency of evidence \u2014 age\u2014intent\u2014act beyond mere preparation\nThe trial court did not err by denying defendant juvenile\u2019s motion to dismiss the charge .of attempted first-degree rape at the end of all the evidence, because: (1) the age element was satisfied when the evidence showed that defendant was fourteen years old and the victim was eight years old at the time of the offense; (2) the age of defendant, the act of defendant touching his penis to the victim\u2019s vagina, and defendant running to the closet and hiding from the victim\u2019s mother permit a reasonable inference that defendant had the requisite intent to gratify his passion through vaginal intercourse with the victim; and (3) defendant committed an act that goes beyond mere preparation when he pulled down his pants and touched his penis to the victim\u2019s vagina.\n3. Indecent Liberties\u2014 between children \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 purpose or intent of gratifying sexual desire\nThe trial court did not err by denying defendant juvenile\u2019s motion to dismiss the charge of indecent liberties between children under N.C.G.S. \u00a7 14-202.2, because: (1) defendant was fourteen years old and the victim was eight years old at the time of the offense, creating more than the required three-year age difference between them; and (2) the evidence presented by the State was sufficient to show that defendant had the requisite intent and purpose in acting to gratify a sexual desire when defendant was seen in his room running to the closet while pulling up his pants and the victim was found in defendant\u2019s bed unclothed from the waist down.\n4. Criminal Law\u2014 recordation \u2014 failure to record defendant\u2019s direct examination \u2014 reconstruction of testimony available\nDefendant juvenile is not entitled to a new trial in a first-degree attempted rape and indecent liberties between children case based on the trial court\u2019s inadvertent failure to record his testimony on direct examination at trial, because the Court of Appeals was able to conduct a meaningful review of defendant\u2019s appeal when: (1) his only other argument on appeal is the trial court\u2019s denial of his motion to dismiss, and the State presented substantial evidence of every element of each offense; (2) the cross-examination of defendant by the State is included in the transcript, and it provided a partial reconstruction of defendant\u2019s account of what took place; and (3) defendant\u2019s attorney summarized his testimony during her argument in support of the motion to dismiss and further reconstructed defendant\u2019s account of the sequence of events.\nAppeal by defendant from judgment entered 9 March 2004 by Judge Elizabeth D. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 6 June 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Gail E. Dawson, for the State.\nAnthony M. Brannon for defendant-appellant."
  },
  "file_name": "0496-01",
  "first_page_order": 526,
  "last_page_order": 534
}
