{ "id": 4167916, "name": "IN THE MATTER OF: D.S.", "name_abbreviation": "In re D.S.", "decision_date": "2009-06-16", "docket_number": "No. COA08-1078", "first_page": "598", "last_page": "603", "citations": [ { "type": "official", "cite": "197 N.C. App. 598" } ], "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": "636 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636994 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "280", "parenthetical": "quoting In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004)" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0277-01" ] }, { "cite": "650 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639340 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "457-58" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0457-01" ] }, { "cite": "653 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639960 ], "year": 2007, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0427-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "580 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "73", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188432 ], "year": 2003, "pin_cites": [ { "page": "679", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0673-01" ] }, { "cite": "584 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8953688 ], "year": 2003, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0019-01" ] }, { "cite": "562 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130405 ], "year": 2002, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0588-01" ] }, { "cite": "592 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "16" }, { "page": "153-54" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918200 ], "year": 2004, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0487-01" ] }, { "cite": "180 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8239959 ], "year": 2006, "pin_cites": [ { "page": "153", "parenthetical": "quoting In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0151-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "186 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156253 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "302" }, { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0301-01" ] }, { "cite": "187 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375092 ], "year": 2007, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0502-01" ] } ], "analysis": { "cardinality": 568, "char_count": 12362, "ocr_confidence": 0.736, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13628941301210998 }, "sha256": "122e9a6300f99522d7dd91d94ff55caf9e04fa5cf829800487b7d745fa3e0efc", "simhash": "1:1f08f60e776a1de6", "word_count": 2014 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "IN THE MATTER OF: D.S." ], "opinions": [ { "text": "BEASLEY, Judge.\nD.S. (Juvenile) appeals the adjudication and disposition of Robeson County District Court which adjudicated him delinquent for committing sexual b\u00e1ttery and simple assault. For the reasons stated below, we affirm the adjudication for simple assault and vacate the adjudication for sexual battery.\nOn 21 September 2007, Juvenile and A.A., both fifth grade stu-\u201e dents, were in the same classroom. During class, Juvenile approached A.A. while holding a straw-like candy, known as Pixy Stix, in his hands. Juvenile repeatedly touched A.A.\u2019s bottom with the Pixy Stix and also stuck it between her legs. A.A. testified that in three instances, A.A. ordered that Juvenile cease touching her with the Pixy Stix. Juvenile ignored her. Two of Juvenile\u2019s classmates, D.A. and S.E., corroborated A.A.\u2019s testimony.\nAngela Hunt (Hunt), the teacher of the class where the incident occurred, testified that A. A. had not told her about the incident until the end of the school day. Hunt noticed that A. A. was crying, and after speaking with A.A., Hunt told her to talk with the principal of the school. Hunt testified that A.A. told her that Juvenile \u201cwas touching her butt.\u201d\nS.E., a classmate of Juvenile and A.A., saw Juvenile walk to A.A.\u2019s desk; \u201che had like some candy, Pixie Stick, and he was sticking it in her.\u201d D.A. was sitting next to A.A. when Juvenile approached A.A. with a Pixy Stix and saw Juvenile \u201cplaying with her ... in her butt.\u201d D.A. heard A.A. tell Juvenile to stop, but Juvenile ignored A.A.\u2019s demands.\nAt the adjudication hearing, the trial court found Juvenile to be delinquent as to both allegations of simple assault and sexual battery. At the dispositional hearing, the trial court accepted the court counselor\u2019s recommendation of probation for a period of up to twelve months. From these adjudication and disposition orders, Juvenile appeals.\nSubject Matter Jurisdiction\nJuvenile first argues that the trial court lacked subject matter jurisdiction because the sexual battery petition was not timely filed in violation of N.C. Gen. Stat. \u00a7 7B-1703. We agree and vacate the sexual battery adjudication.\n\u201cIn reviewing a question of subject matter jurisdiction, our standard of review is de novo.\u201d In re K.A.D., 187 N.C. App. 502, 503, 653 S.E.2d 427, 428 (2007). \u201cAlthough not raised in the trial court, this issue may be addressed for the first time on appeal.\u201d In re J.B., 186 N.C. App. 301, 302, 650 S.E.2d 457, 457-58 (2007).\nN.C. Gen. Stat. \u00a7 7B-1703 (2007) governs the time by which a juvenile petition must be filed after a juvenile court counselor\u2019s receipt .of a complaint. This statute provides that:\n(a) The juvenile court counselor shall complete evaluation of a complaint within 15 days of receipt of the complaint, with an extension for a maximum of 15 additional days at the discretion of the chief court counselor. The juvenile court counselor shall decide within this time period whether a complaint shall be filed as a juvenile petition.\nTherefore, \u201cthe petition must be filed within, at a maximum, thirty days after the receipt of the complaint.\u201d J.B., 186 N.C. App. at 303, 650 S.E.2d at 458.\nIt is undisputed that the court counselor received the first complaint on 25 September 2007 and filed the petition charging simple assault under N.C. Gen. Stat. \u00a7 14-33(a) on 10 October 2007. Accordingly, the first petition was timely since it was filed within 15 days of the court counselor\u2019s receipt. The court counselor received the second complaint on 15 November 2007 and filed the petition alleging sexual battery under N.C. Gen. Stat. \u00a7 14-27.5A on 16 November 2007. Because the actions complained of in each petition arose from the single incident that occurred on 21 September 2007, the second petition was filed beyond the 30 days allotted by the statute and therefore untimely.\nOne of the purposes of the juvenile code is to \u201c[t]o deter delinquency and crime ... by providing swift, effective dispositions that emphasize the juvenile offender\u2019s accountability for the juvenile\u2019s actions.\u201d N.C. Gen. Stat. \u00a7 7B-1500(2) (2007) (emphasis added). The juvenile code also exists, \u201c[t]o provide uniform procedures that assure fairness and equity; that protect the constitutional rights of juveniles, parents, and victims; and that encourage the court and others involved with juvenile offenders to proceed with all possible speed in making and implementing determinations required by this Subchapter.\u201d N.C. Gen. Stat. 7B-1500(4) (2007) (emphasis added).\nIn the case before us, the court counselor received all of the information regarding the allegations against Juvenile on 25 September 2007, but failed to act swiftly when he filed the second petition over 50 days later. Because it was untimely filed, the trial court did not have subject matter jurisdiction over the second petition alleging sexual battery. Therefore, the order adjudicating D.S. as a delinquent juvenile on the allegations of sexual battery must be vacated.\nPetitions and Evidence\nJuvenile argues that there was a fatal variance between the acts alleged in both the juvenile petitions and the evidence presented at the hearing. We do not reach Juvenile\u2019s argument regarding the petition alleging sexual battery as explained above, but instead, only address the petition alleging simple assault. Juvenile argues that the trial court erred because the simple assault petition alleged that Juvenile touched A.A. \u201con her butt, 2 times with his hands[,]\u201d while the evidence only showed that Juvenile touched A.A. with a Pixy Stix. We disagree.\nFor a juvenile petition alleging delinquency to be valid, it:\nshall contain a plain and concise statement, without allegations of an evidentiary nature, asserting facts supporting every element of a criminal offense and the juvenile\u2019s commission thereof with sufficient precision clearly to apprise the juvenile of the conduct which is the subject of the allegation.\nN.C. Gen. Stat. \u00a7 7B-1802 (2007). A juvenile petition \u201c \u2018serves 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 ....\u2019\u201d In re S.R.S., 180 N.C. App. 151, 153, 636 S.E.2d 277, 280 (2006) (quoting In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004)). The purpose of a juvenile petition is to \u201cclearly identify the crime being charged\u201d and \u201cshould not be subjected to hyper technical scrutiny with respect to form.\u201d Id. at 153-54, 636 S.E.2d at 280.\n\u201cA variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial.\u201d State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002). This is based on an effort \u201cto insure that [juvenile] is able to prepare his defense against the [allegation] with which he is charged, and to protect the [juvenile] from another prosecution for the same incident. In order for a variance to warrant reversal, the variance must be material.\u201d Id. \u201cNot every variance between the allegations of the [petition] and the proof presented at trial is a material variance requiring dismissal.\u201d State v. McCree, 160 N.C. App. 19, 30, 584 S.E.2d 348, 356 (2003).\nWe cannot conclude that because the petition alleged Juvenile touched A.A. \u201cwith his hands\u201d instead of touching her with a Pixy Stix, that Juvenile was unable to prepare for his defense. The simple assault petition as a matter of law put Juvenile on notice of the offense for which he was alleged to have committed. This assignment of error is overruled.\nFindings of Fact\nJuvenile\u2019s last argument is that the trial court erred when it made finding of fact 3(c) in the adjudication order without any supporting evidence presented at the hearing. We find that because there was competent evidence to support the adjudication of simple assault, the trial court\u2019s findings of fact related to the simple assault allegation are conclusive on appeal.\nIn the trial court\u2019s adjudication order, finding of fact 3(c) states the following:\nThat on or about September 21, 2007 the Juvenile, D.S., did unlawfully and willfully assault A.A. touching her on her butt, two times with his hands; and that he did unlawfully and willfully for the purpose of sexual arousal or sexual gratification engage in sexual contact, by placing his hand on the buttocks of another person, A.A., by force and against the will of the other person, being offenses in violation of G.S. 14-33(a) and 14-27.5(a) respectively, and the court finds this beyond a reasonable doubt.\nJuvenile argues that the trial court erred because there was no evidence that Juvenile touched A.A. with his hands.\nThis Court has held that:\n[w]hen an appellant asserts that an adjudication order of the trial court is unsupported by the evidence, this Court examines the evidence to determine whether there exists clear, cogent and convincing evidence to support the findings. If there is competent evidence, the findings of the trial court are binding on appeal. Such findings are moreover conclusive on appeal even though the evidence might support a finding to the contrary.\nIn re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (emphasis added). \u201cTouching\u201d is defined as \u201cphysical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.\u201d N.C. Gen. Stat. \u00a7 14-27.1 (2007).\nTouching can be accomplished indirectly as illustrated in the case before us. It is undisputed that Juvenile touched A.A. with a Pixy Stix he was holding in his hands, making Juvenile\u2019s argument unwarranted. Therefore, there was clear, cogent, and convincing evidence to support the findings of fact and conclusions of law by the trial court that Juvenile assaulted A. A.\nFor the foregoing reasons, we affirm the simple assault adjudication. However, we conclude that the trial court lacked subject matter jurisdiction for the sexual battery petition, that the trial court erred in denying the motion to dismiss the sexual battery allegation, and we vacate the adjudication and disposition orders for D.S. on the allegations of sexual battery.\nAffirmed in part; Vacated in part.\nJudges McGEE and GEER concur.\n. To protect their privacy, all minors are referred to by initials in this opinion.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, by Assistant Attorney General Judith Tillman, for the State.", "Peter Wood, for Juvenile." ], "corrections": "", "head_matter": "IN THE MATTER OF: D.S.\nNo. COA08-1078\n(Filed 16 June 2009)\n1. Juveniles\u2014 delinquency \u2014 sexual battery \u2014 untimely filing of petition\nThe trial court lacked subject matter jurisdiction in a juvenile delinquency case for a sexual battery adjudication based on the untimely filing of the petition in violation of N.C.G.S. \u00a7 7B-1703, and thus erred by denying the juvenile\u2019s motion to dismiss the sexual battery charge.\n2. Juveniles\u2014 delinquency \u2014 simple assault \u2014 variance between acts alleged in petition and evidence presented at hearing\nThe trial court did not err in a juvenile delinquency case arising from a simple assault even though the juvenile contends there was a fatal variance between the acts alleged in the petition and the evidence presented at the hearing because: (1) it cannot be concluded that the juvenile was unable to prepare for his defense since the petition alleged the juvenile touched the victim with his hands and the evidence showed that he touched her with a Pixy Stix; and (2) the petition as a matter of law put the juvenile on notice of the offense for which he was alleged to have committed.\n3. Juveniles\u2014 delinquency \u2014 simple assault \u2014 touching\nThe trial court did not err in a juvenile delinquency case arising out of a simple assault by its finding of fact in the adjudication order that the juvenile touched the victim on her buttocks because: (1) N.C.G.S. \u00a7 14-27.1 provides that \u201ctouching\u201d is defined as physical contact with another person, whether accomplished directly through the clothing of the person committing the offense or through the clothing of the victim; and (2) the juvenile touched the victim with a Pixy Stix he was holding in his hand.\nAppeal by Juvenile from judgment entered 16 April 2008 by Judge James G. Bell in Robeson County District Court. Heard in the Court of Appeals 10 March 2009.\nAttorney General Roy A. Cooper, by Assistant Attorney General Judith Tillman, for the State.\nPeter Wood, for Juvenile." }, "file_name": "0598-01", "first_page_order": 628, "last_page_order": 633 }