{
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  "name": "IN THE MATTER OF: R.N.",
  "name_abbreviation": "In re R.N.",
  "decision_date": "2010-08-17",
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    "judges": [
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      {
        "text": "HUNTER, Robert C., Judge.\nJuvenile R.N. (\u201cRichard\u201d) appeals from the trial court\u2019s orders adjudicating him delinquent and ordering a Level 2 disposition. The juvenile petition in this case alleged that Richard committed two distinct acts constituting a crime against nature: licking the alleged victim\u2019s genital area and placing his penis in her mouth. Richard\u2019s sole argument on appeal is that the trial court should have dismissed the juvenile petition for insufficient evidence that penetration \u2014 the essential element of a crime against nature \u2014 occurred during either alleged incident. We agree with Richard\u2019s contention with respect to the first alleged act and, therefore, reverse that portion of his adjudication. With respect to the second incident, defects in the transcript make meaningful appellate review of the sufficiency of the evidence impossible. Accordingly, we remand the case to the trial court to reconstruct the relevant portion of the testimonial evidence.\nFacts\nThe State\u2019s evidence tended to establish the following facts at the adjudication hearing: In August 2008, Richard, who was 12 at the time, was living with his mother, his two siblings, his aunt and her three children, and his grandparents in a mobile home in Guilford County, North Carolina. Sometime in August 2008, Richard called his cousin \u201cDana\u201d (seven) into the bedroom he shared with his brother \u201cJames\u201d (nine) and his cousin \u201cSam\u201d (13). Richard was on the top bunk of the bunk bed and Dana got onto the top bunk with him. Also in the room were James, on the bottom bunk, and Sam, on his bed next to the bunk beds. The lights were off, James was playing video games, and Sam was reading a book with a flashlight. While Richard and Dana were on the top bunk, Richard pulled down Dana\u2019s pants, pushed her head into the wall, and \u201clicked\u201d her genital area. Richard, with his pants \u201chalf-way down,\u201d also forced Dana\u2019s head down to his \u201cprivate area.\u201d Dana told Richard to stop and then left the bedroom.\nAfter leaving the bedroom, Dana told her mother that Richard had \u201cput his mouth on her private area.\u201d Dana then told her grandmother that Richard \u201ctouchfed] [her] on her private parts.\u201d On 4 September 2008, Nydia Rolon, with Family Services of the Piedmont, Child Advocacy Center, interviewed Dana. Dana told Ms. Rolon that when she got into bed with Richard, he pulled the covers over her head, pulled down her pants and \u201cstarted licking her private area.\u201d Dana also told Ms. Rolon that Richard pushed her head down into his \u201cprivate area\u201d and that she could see his \u201cprivate area.\u201d Dana was also interviewed by Lasonya Tuttle, a social worker with the Guilford County Child Protective Services (\u201cCPS\u201d). Dana told Ms. Tuttle that Richard \u201clicked her private\u201d and that he \u201cput her head in his private area.\u201d\nThe State filed two juvenile delinquency petitions, alleging that Richard had committed a crime against nature and misdemeanor sexual battery. The trial court held an adjudication hearing on 16 January 2009 on the delinquency petitions. At the close of the State\u2019s evidence, Richard moved to dismiss both charges for insufficient evidence. The court dismissed the sexual battery charge but denied the motion with respect to the charge of crime against nature. At the conclusion of all the evidence, Richard renewed his motion to dismiss and the court again denied the motion. The court subsequently entered an adjudication order on 19 March 2009 finding Richard delinquent. After conducting a disposition hearing, the court entered an order on 14 April 2009 imposing a Level 2 disposition. Richard timely appealed to this Court.\nDiscussion\nIn his sole argument on appeal, Richard contends that the trial court erred in denying his motion to dismiss the crime against nature charge for insufficient, evidence. In the same manner as adult defendants, \u201cjuveniles \u2018may challenge the sufficiency of the evidence by moving to dismiss the juvenile petition.\u2019 \u201d In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (2001) (quoting In re Davis, 126 N.C. App. 64, 65-66, 483 S.E.2d 440, 441 (1997)). The juvenile\u2019s motion to dismiss should be denied \u201c[i]f there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the [juvenile] committed it. . . .\u201d State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). Substantial evidence is that amount of relevant evidence sufficient to persuade a rational juror to accept a particular conclusion. State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact that may be drawn from the evidence. In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985). Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).\n\u201cWhen the evidence raises no more than \u2018a suspicion or conjecture as to either the commission of the offense or the identity of the [juvenile] as the perpetrator of it, the motion should be allowed.\u2019 \u201d Heil, 145 N.C. App. at 28, 550 S.E.2d at 819 (quoting Powell, 299 N.C. at 98, 261 S.E.2d at 117). The existence of only circumstantial evidence, however, does not warrant dismissal. State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 919 (1993). When the evidence is circumstantial, \u201cthe court must consider whether a reasonable inference of [the juvenile]\u2019s guilt may be drawn from the circumstances.\u201d Id. If so, \u201cit is then within the court\u2019s fact-finding function to determine \u2018whether the facts, taken singly or in combination, satisfy [the court] beyond a reasonable doubt\u2019 that the juvenile is delinquent.\u201d Heil, 145 N.C. App. at 29, 550 S.E.2d at 819 (quoting State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965)).\nThe juvenile petition in this case alleged that Richard was a delinquent juvenile for having committed a \u201ccrime against nature\u201d in violation of N.C. Gen. Stat. \u00a7 14-177 (2009). The offense of \u201ccrime against nature is sexual intercourse contrary to the order of nature.\u201d State v. Harward, 264 N.C. 746, 746, 142 S.E.2d 691, 692 (1965). The essential element of the offense \u201cis \u2018some penetration, however slight, of a natural orifice of the body.\u2019\u201d Heil, 145 N.C. App. at 29, 550 S.E.2d at 819-20 (quoting State v. Whittemore, 255 N.C. 583, 585, 122 S.E.2d 396, 398 (1961)) (emphasis omitted); accord State v. Joyner, 295 N.C. 55, 66, 243 S.E.2d 367, 374 (1978) (holding that \u201cpenetration by or of a sexual organ is an essential element\u201d of crime against nature). The requisite penetration, however, \u201cis not limited to penetration by the male sexual organ.\u201d Joyner, 295 N.C. at 66, 243 S.E.2d at 374. N.C. Gen. Stat. \u00a7 14-177 is \u201cbroad enough to include all forms of oral and anal sex\u201d involving penetration. State v. Stiller, 162 N.C. App. 138, 140, 590 S.E.2d 305, 307, appeal dismissed and disc. review denied, 358 N.C. 240, 596 S.E.2d 19 (2004).\nThe juvenile petition in this case alleged that Richard committed two distinct acts constituting a crime against nature: (1) \u201clicking the gentials [sic] area of the victim, . . . while she was fully clothed\u201d and (2) \u201cplacing Ms penis in her mouth . . . .\u201d Richard challenges the sufficiency of the evidence with respect to both acts.\nAs for the first act, Richard contends that even if there is evidence that he licked Dana\u2019s genital area \u201cwhile she was fully clothed,\u201d such an act does not constitute a crime against nature because her being fully clothed necessarily prevented \u201cany act of penetration by or of a sexual organ.\u201d While we do not agree with Richard\u2019s categorical assertion that penetration of the female genitalia can never occur when the victim is fully clothed, we do agree that the evidence in this case is insufficient to sustain Richard\u2019s adjudication based on the first act alleged in the petition.\nIn Whittemore, 255 N.C. at 585, 122 S.E.2d at 397, the defendant was convicted of committing a crime against nature. On appeal, the defendant argued \u2014 as Richard does here \u2014 that the trial court erred in denying his motion to dismiss for insufficient evidence of penetration. The Supreme Court summarized the evidence with respect to penetration as follows:\n\u201c[The alleged victim] testified that [defendant] invited her into an uninhabited house. \u2018He then told me to pull off my pants. .... I pulled my pants below my knees. After I pulled my panties down below my knees, he put his privates against mine. He was laying on his back and made me lay down on him. I stayed inside the house about two or three minutes before he told me to pull my panties down. After he went in the house, he pulled his trousers off of one leg and laid down flat on his back on the floor. He made me put my hands on his privates and he put his hand on my privates. He kept it there about two or three minutes; he just left it there. After he had done that for two or three minutes, he put his mouth on my breast and after that he put it on my privates and kept his mouth there about one or two minutes. He just left it there .... He had his privates at my privates rubbing it up and down. I said at. He did that about one or two minutes ....\u2019\u201d\nId. at 586, 122 S.E.2d at 398 (emphasis added). The Supreme Court concluded that this \u201cevidence [wa]s insufficient to establish the \u2018penetration\u2019 necessary for a conviction\u201d under N.C. Gen. Stat. \u00a7 14-277 and thus the defendant\u2019s motion to dismiss \u201cshould have been allowed.\u201d Whittemore, 255 N.C. at 586, 122 S.E.2d at 398.\nHere, Dana testified at trial that Richard \u201clicked [her] private . ...\u201d In addition to Dana\u2019s testimony, Dana\u2019s mother testified that Richard \u201cput his mouth on [Dana\u2019s] private area,\u201d and Dana\u2019s grandmother testified that Richard \u201ctouch[ed] [Dana] on her private parts.\u201d Ms. Rolan, with the Child Advocacy Center, also testified about her interview with Dana, stating that Dana told her that Richard \u201cpulled down her pants and started licking her private area.\u201d Similarly, Ms. Tuttle, a CPS social worker, testified that Dana told her during their interview that Richard had \u201clicked her private.\u201d\nThis testimony is indistinguishable from the evidence in Whittemore. Although the defendant in Whittemore placed his hand, his mouth, and his \u201cprivates\u201d \u201con,\u201d \u201cat,\u201d or \u201cagainst\u201d the alleged victim\u2019s \u201cprivates,\u201d thus establishing physical contact, there was no evidence indicating that defendant penetrated the alleged victim\u2019s genitalia. So too, here, even when viewing the evidence in the light most favorable to the State, the evidence merely shows that Richard \u201clicked [Dana\u2019s] private\u201d; that he \u201cput his mouth on [Dana\u2019s] private area\u201d; or, that he \u201ctouch[ed] her on her private parts.\u201d (Emphasis added.)\nAs our Supreme Court has held, cunnilingus, which is defined as the \u201cstimulation by the tongue or lips of any part of a woman\u2019s genitalia[,]\u201d may occur without penetration of the female genitalia. State v. Ludlum, 303 N.C. 666, 672, 281 S.E.2d 159, 162 (1981). Thus, the evidence tending to show that Richard \u201clicked\u201d Dana\u2019s \u201cprivate area\u201d does not, without more, support a reasonable inference that penetration occurred. Whittemore, 255 N.C. at 586, 122 S.E.2d at 398. The trial court, therefore, erred in denying Richard\u2019s motion to dismiss the charge of crime against nature based on the allegation that he \u201click[ed] the gentials [sic] area of the victim . . . .\u201d\nRichard also contends that there is insufficient evidence that he \u201cplac[ed] his penis in [Dana\u2019s] mouth,\u201d the second act alleged in the juvenile petition as constituting a crime against nature. At trial, Dana\u2019s testimony did not include anything about Richard placing his penis in her mouth. After testifying about Richard licking her \u201cprivate,\u201d Dana was asked twice whether Richard \u201cd[id] anything else to [her],\u201d and each time she said \u201cNo.\u201d Neither Dana\u2019s mother nor grandmother \u2014 who both testified that Richard \u201clicked\u201d Dana\u2019s \u201cprivates\u201d\u2014 testified about whether Richard placed his penis in Dana\u2019s mouth.\nAs both Richard and the State point out, the only evidence bearing on whether Richard placed his penis in Dana\u2019s mouth is the testimony of Ms. Rolon and Ms. Tuttle. Ms. Rolon testified that Dana told her during their interview that \u201c[Richard] forced her head down to his private\u201d and that \u201cshe had seen his private area when he forced her head down to his private area.\u201d Ms. Tuttle also testified about her interview with Dana:\nWhen I first talked with, um, [Dana], ah, she\u2019s the first child I interviewed; she told me that um, [Richard] had put his, put her head down his private area and put his hands around her neck. And I asked her if there was penetration and she told me there was (Indistinct Muttering) penetration.\n(Emphasis added.)\nTo the extent that both Ms. Rolon and Ms. Tuttle testified that Richard forced Dana\u2019s head down to his \u201cprivate area\u201d and that Dana saw his \u201cprivate area,\u201d this testimony is insufficient under Whittemore. Even when viewing the evidence in the light most favorable to the State and resolving all conflicts in the evidence in its favor, evidence indicating that Richard forced Dana\u2019s head down to his \u201cprivate area\u201d and that Dana saw his \u201cprivate area\u201d does not support a reasonable inference that Richard put his penis in Dana\u2019s mouth. See Whittemore, 255 N.C. at 586, 122 S.E.2d at 398 (holding that witness\u2019s testimony that defendant \u201cput [his mouth] on my privates\u201d was insufficient to support inference that penetration occurred).\nMs. Tuttle further testified, however, that she asked Dana directly whether \u201cthere was penetration\u201d when Richard forced her head down to his \u201cprivate area.\u201d Although Ms. Tuttle indicated that Dana answered the question, her response is not fully transcribed. The transcript reads: \u201cAnd I asked her if there was penetration and she told me there was (Indistinct Muttering) penetration. \u201d As Richard points out, due to the parenthetical statement inserted by the transcriber \u2014 \u201c(Indistinct Muttering)\u201d \u2014 it is impossible to determine the import of Ms. Tuttle\u2019s testimony. She could have said that \u201cthere was [no] penetration.\u201d On the other hand, she could have said that \u201cthere was [some] penetration.\u201d In short, however, the transcript is unclear as to Ms. Tuttle\u2019s testimony regarding whether there was \u2014 or was not \u2014 penetration.\nRichard argues on appeal that because it is not possible to determine, based on the record before us, what Ms. Tuttle said at trial, there is insufficient evidence to support his adjudication and his delinquency adjudication must be reversed. Richard\u2019s contention ignores his responsibility as the appellant to ensure that any reporting errors in the transcript are corrected in order to provide for meaningful appellate review. See State v. Fox, 277 N.C. 1, 28, 175 S.E.2d 561, 578 (1970) (\u201c[T]he primary duty of preparing and docketing a true and adequate transcript of the record and case on appeal in a criminal case rests upon defense counsel . . . .\u201d). As our Supreme Court has cautioned, \u201c[djefense counsel and the district attorney, as officers of the court, have an equal duty to see that reporting errors in the transcript are corrected. This duty does not, however, embrace the right to perpetuate and then take advantage of transcript mistakes.\" State v. Robinson, 327 N.C. 346, 360, 395 S.E.2d 402, 410 (1990) (internal citation omitted) (emphasis added).\nOnce Richard discovered the error in the transcript, it was his duty to correct it by requesting a hearing to reconstruct the substance of Ms. Tuttle\u2019s testimony. See State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d 807, 817 (2000) (approving trial court\u2019s holding a hearing to reconstruct missing testimony where State drafted narrative of witnesses\u2019 testimony, witnesses testified that narrative accurately reflected their trial testimony, and court reporter reviewed her notes regarding objections and cross-examination), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). Consistent with Rule 9(c)(1) of the Rules of Appellate Procedure, the parties should have prepared a narrative of Ms. Tuttle\u2019s testimony. We note that this process wpuld have been relatively simple in this case as the record indicates that Ms. Tuttle\u2019s testimony was primarily \u2014 if not exclusively \u2014 based on her written report from her interview with Dana.\nBecause we cannot determine from Ms. Tuttle\u2019s testimony whether penetration occurred, we cannot meaningfully review the sufficiency of the evidence to withstand Richard\u2019s motion to dismiss. Consequently, we vacate Richard\u2019s adjudication and remand this case to the trial court to conduct a hearing to reconstruct the pertinent portion of Ms. Tuttle\u2019s testimony. On remand, the parties may stipulate to the narrative, or, if the parties cannot agree, the trial court may settle the record. See State v. Wray, 35 N.C. App. 682, 690, 242 S.E.2d 635, 639 (explaining that where the parties cannot agree that transcript is \u201cabsolutely correct,\u201d the trial court may settle record), appeal dismissed and disc. review denied, 295 N.C. 263, 245 S.E.2d 780 (1978). See also State v. DeLeon, 127 Wis.2d 74, 79, 377 N.W.2d 635, 638 (Wis. Ct. App. 1985) (holding that under federal rule where transcript is defective, \u201cthe parties should first attempt to prepare an agreed statement of the record on appeal .... Then, if any dispute remains as to what occurred, the difference shall be submitted to and settled by the trial court.\u201d).\nReversed in part; vacated and remanded in part.\nJudges GEER and STEPHENS concur.\n. Pseudonyms are used throughout this opinion to protect the minors\u2019 privacy and for ease of reading.\n. We note that the State, in its brief, inappropriately replaces the italicized portion of Ms. Tuttle\u2019s testimony with an ellipsis and asserts that Ms. Tuttle \u201ctestified that the victim told her that penetration occurred.\u201d\n. According to the stenographer\u2019s \u201c[disclaimer,\u201d the microphone at the witness stand was not working properly and thus \u201c[a]ll witnesses [we]re extremely difficult to hear and understand.\u201d",
        "type": "majority",
        "author": "HUNTER, Robert C., Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.",
      "Kimberly R Jloppin for juvenile-appellant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: R.N.\nNo. COA09-1406\n(Filed 17 August 2010)\nJuveniles\u2014 delinquency \u2014 crimes against nature \u2014 insufficient evidence \u2014 vacated and remanded\nThe trial court erred in denying defendant juvenile\u2019s motion to dismiss the charge of crimes against nature as there was insufficient evidence that penetration occurred during the first of two alleged incidents. Defendant\u2019s adjudication based on a second incident was vacated and remanded to the trial court to conduct a hearing to reconstruct the pertinent portion of a witness\u2019s testimony.\nAppeal by juvenile from orders entered 19 March 2009 and 14 April 2009 by Judge Polly D. Sizemore in Guilford County District Court. Heard in the Court of Appeals 28 April 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.\nKimberly R Jloppin for juvenile-appellant."
  },
  "file_name": "0537-01",
  "first_page_order": 561,
  "last_page_order": 569
}
