An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1349
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF:
C.B.1 Durham County
No. 12 JB 127
Appeal by Juvenile from order entered 13 June 20132 by Judge
Pat Evans in Durham County District Court. Heard in the Court
of Appeals 9 April 2014.
1
We use initials and pseudonyms throughout this opinion to
protect the identity of the juvenile and his alleged victim.
2
Juvenile gave oral notice of appeal at the close of the
disposition hearing, but did not specify from what order
(adjudication, disposition, or both) he wished to appeal. The
written notice of appeal specifies the “judgment . . . entered
in this matter on June 13, 2013, adjudicating . . . Juvenile to
be delinquent and placing him in” a youth development center for
an indefinite period not to exceed Juvenile’s eighteenth
birthday. As discussed herein, while the disposition order was
entered 13 June 2013, the adjudication order was entered 21
February 2013. Appellate Rule 3(d) “provides that an
appellant’s notice of appeal shall designate the judgment or
order from which appeal is taken. An appellant’s failure to
designate a particular judgment or order in the notice of appeal
generally divests this Court of jurisdiction to consider that
order.” Yorke v. Novant Health, Inc., 192 N.C. App. 340, 347,
666 S.E.2d 127, 133 (2008) (citation and quotation marks
omitted), cert. denied, 363 N.C. 260, 677 S.E.2d 461 (2009).
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Attorney General Roy Cooper, by Assistant Attorney General
Vanessa N. Totten, for the State.
Richard Croutharmel for Juvenile.
STEPHENS, Judge.
Procedural History and Factual Background
On 9 July 2012, the State filed two juvenile petitions
which alleged that juvenile C.B. (“Carl”) committed second-
degree rape and second-degree sexual offense against another
juvenile (“Kate”) on 5 June 2012. At the time of the alleged
offenses, Carl was a fourteen-year-old seventh grade student at
a public middle school in Durham. Carl had a history of
attention deficit/hyperactivity disorder, oppositional defiant
disorder, mood disorder, and other behavioral problems. Carl
had previously been charged with felony breaking and entering,
felony larceny after breaking and entering, and misdemeanor
However, a mistake in designating the order or judgment appealed
from should not result in dismissal of an appeal if the intent
to appeal from a specific judgment may fairly be inferred from
the notice of appeal and the appellee is not misled by the
mistake. See Smith v. Independent Life Ins. Co., 43 N.C. App.
269, 274, 258 S.E.2d 864, 867 (1979). Here, Juvenile’s notice
of appeal clearly indicates his intent to appeal from both
orders and the State has responded to all issues briefed by
Juvenile, showing that the State was not misled by the error.
Accordingly, we reach the merits of all of Juvenile’s arguments.
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larceny, but those charges had been resolved before June 2012.
Carl had been placed in the socially and emotionally disabled
(“SED”)3 class at the school. Carl had a tendency to roam the
school’s halls when he should have been in class.
On the day in question, several special education classes
were combined for end-of-school-year activities. Carl’s class
was meeting with Kate’s class. Kate was then a fourteen-year-
old female student with Asperger’s disorder, a form of autism.
During class, Kate asked to go the girls’ restroom and was given
permission to do so. When she did not return as expected, a
teaching assistant from Carl’s class went into the hallway to
look for her. He saw Kate walking from the opposite direction
of the closest girls’ restroom. The assistant asked where she
had been, but Kate just looked at him blankly without
responding. The assistant was aware that Carl had been roaming
the halls during the time when Kate was out of the classroom.
The next day, another teaching assistant reported that Kate
had been sexually assaulted by Carl. To a group of teachers,
Kate described Carl taking her to a “secret place” at the
school, telling her he would make her pregnant, and then having
3
The transcript describes the class as an SED class, although
other materials in the record describe it as a “behavior
disorder,” or BD, class.
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anal and vaginal intercourse with her. Kate was examined by a
sexual assault and forensic nurse examiner who found a small
superficial tear in her vaginal area consistent with blunt force
trauma and penile-vaginal penetration. Kate gave the nurse
examiner a consistent report of the assault except she also
reported that Carl had told Kate to “suck his penis.”
On 6 July 2012, a clinical coordinator for the Duke
Pediatrics Child Abuse and Neglect Medical Evaluation Clinic
(“the Duke Clinic”) interviewed Kate. Again, Kate gave a
consistent report of the assault, but omitted any reference to
being asked to suck Carl’s penis. The Duke Clinic team
concluded it was “probable” that Kate had been sexually abused.
On 8 August 2012, Carl moved to be examined to determine
whether he was competent to proceed, noting that he was in
special education classes and had been diagnosed with bipolar
disorder. On the same date, the district court entered an order
appointing David VandeVusse, Ph.D., to determine whether Carl
was competent to proceed. By written report concerning his 22
August 2012 evaluation, VandeVusse notified the court that Carl
was competent to proceed in the matter. The report stated that
Carl had no “clear signs of a severe mental disorder[,]” but was
at risk for “developing very significant mental health
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problems.” The only further reference to Carl’s capacity to
proceed in the court’s orders appears in a continuance order
signed on 6 September 2012, which states that “the juvenile is
competent to stand trial.”
The adjudication hearing was held 19-21 February 2013, and
the evidence described above was introduced. Kate’s testimony
was consistent with her reports to the teachers, the nurse
examiner, and the team at the Duke Clinic. Kate testified that
there was a lot of blood in her panties after the assault.
However, during the investigation, a police officer collected
clothing Kate put on after coming home from school and showering
on the day of the incident, rather than the clothing Kate had
been wearing at the time of the assault. At the completion of
the State’s evidence, Carl’s attorney moved to dismiss the
petitions. The court denied the motion. Carl elected not to
testify, but did offer into evidence an SBI lab report. Carl’s
attorney failed to renew his motion to dismiss at the close of
all evidence.
The court found that the State had proven beyond a
reasonable doubt the allegations in both petitions. Carl was
adjudicated delinquent by order entered 21 February 2013. The
court continued the disposition hearing and ordered Carl to
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undergo a Sex Offender Specific Evaluation (“SOSE”). The SOSE
resulted in a determination that Carl was at a “moderately high
probability of recidivism . . . with respect to . . . sexual
offenses.” The juvenile court counselor recommended a Level 2
disposition. Reports by a psychologist and a psychiatrist who
examined Carl in April and May 2013 recommended that Carl be
placed in a locked facility known as a Psychiatric Residential
Treatment Facility as opposed to a detention center so that he
could receive appropriate mental health treatment. The
disposition hearing was held on 13 June 2013. The court ordered
a level 3 disposition with special conditions, including
indefinite commitment to a youth development center for a period
not to exceed Carl’s eighteenth birthday. Carl gave notice of
appeal in open court.
Discussion
On appeal, Carl argues that the district court erred in (1)
failing to conduct a competency hearing and to make findings
about his capacity to proceed, (2) denying his motion to dismiss
for insufficiency of the evidence, and (3) imposing a Level 3
disposition. We affirm.
I. Capacity to Proceed
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Carl first argues that the district court erred in failing
to conduct a competency hearing and to make findings about his
capacity to proceed. We disagree.
Our Juvenile Code provides that “[t]he provisions of
[sections] 15A-1001, 15A-1002, and 15A-1003 apply to all cases
in which a juvenile is alleged to be delinquent.” N.C. Gen.
Stat. § 7B-2401 (2013). In turn, section 15A-1001 bars criminal
proceedings against a defendant4 “when by reason of mental
illness or defect he is unable to understand the nature and
object of the proceedings against him, to comprehend his own
situation in reference to the proceedings, or to assist in his
defense in a rational or reasonable manner.” N.C. Gen. Stat. §
15A-1001(a) (2013). “When the capacity of the defendant to
proceed is questioned, the court shall hold a hearing to
determine the defendant’s capacity to proceed.” N.C. Gen. Stat.
4
All of the case law regarding competency or capacity hearings
discussed in this opinion comes from criminal proceedings in our
superior courts, rather than from juvenile matters.
Accordingly, these opinions employ the language of criminal
trials, such as “defendant,” rather than the terms appropriate
to juvenile proceedings. However, as noted supra, our Juvenile
Code explicitly specifies that the criminal statutes regarding
capacity to proceed apply to juvenile proceedings, see N.C. Gen.
Stat. § 7B-2401, and nothing in our case law or General Statutes
suggests that the reasoning employed in criminal cases would not
also apply to consideration of a juvenile’s capacity to proceed.
-8-
§ 15A-1002(b) (2013).5 Further, even where, as here, a defendant
does not request such a hearing,
[a] trial court has a constitutional duty to
institute, sua sponte, a competency hearing
if there is substantial evidence that the
accused may be mentally incompetent. In
other words, a trial judge is required to
hold a competency hearing when there is a
bona fide doubt as to the defendant’s
competency even absent a request.
. . .
Evidence of a defendant’s irrational
behavior, his demeanor at trial, and any
prior medical opinion on competence to stand
trial are all relevant to a bona fide doubt
inquiry. There are, of course, no fixed or
immutable signs which invariably indicate
the need for further inquiry to determine
fitness to proceed; the question is often a
difficult one in which a wide range of
manifestations and subtle nuances are
implicated.
. . .
[W]here . . . the defendant has been . . .
examined relative to his capacity to
proceed, and all evidence before the court
indicates that he has that capacity, he is
not denied due process by the failure of the
trial judge to hold a hearing.
5
This statute was amended effective 1 December 2013, but the
version quoted above was in effect at the time of the
proceedings involving Carl.
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State v. Johnson, 190 N.C. App. 818, 820-21, 661 S.E.2d 287, 289
(2008) (citations and internal quotation marks omitted).
Here, neither Carl nor his attorney requested a competency
hearing pursuant to section 15A-1002(b). Further, after his
attorney requested that Carl be examined to evaluate his
capacity to proceed, the district court acquiesced and appointed
VandeVusse to conduct an evaluation. The five-page “Competency
Evaluation & Psychological Report” produced by VandeVusse
contains a finding that Carl
is competent to proceed to trial [sic]. His
capacity to understand court proceedings is
at least comparable to other youth his age,
his ability to collaborate with his attorney
is within normal limits, and his ability to
behave appropriately within the court room
[sic] is not seriously compromised, though
he has quite significant mental health and
behavioral issues.
Nothing in the record before this Court suggests that Carl
behaved irrationally or was unable to assist his attorney during
the adjudication proceedings. Because Carl was “examined
relative to his capacity to proceed, and all evidence before the
court indicate[d] that he ha[d] that capacity, he [wa]s not
denied due process by the failure of the trial judge to hold a
hearing.” Id. at 821, 661 S.E.2d at 289 (citations omitted).
This argument is overruled.
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II. Motion to Dismiss
Carl next argues that the district court erred in denying
his motions to dismiss the petitions for insufficiency of the
evidence. Specifically, Carl contends the State failed to
present sufficient evidence that he used force in the assault,
that Kate was mentally disabled, or that Carl knew Kate was
mentally disabled. We dismiss.
In order to challenge the sufficiency of the
evidence, a juvenile may make a motion to
dismiss the petition at the close of the
State’s evidence during the adjudicatory
hearing. However, if a defendant or
juvenile fails to move to dismiss the action
at the close of all the evidence, he may not
challenge on appeal the sufficiency of the
evidence to prove the crime charged.
In re K.T.L., 177 N.C. App. 365, 369, 629 S.E.2d 152, 155 (2006)
(citation, internal quotation marks, brackets, and ellipsis
omitted), disc. review denied, 362 N.C. 472, 642 S.E.2d 442
(2007).
Carl acknowledges that he did not move to dismiss for
insufficiency at the close of all the evidence, but cites In re
S.M., 190 N.C. App. 579, 660 S.E.2d 653 (2008), for the
proposition that his right to appellate review was nonetheless
preserved by his counsel’s closing argument. In that case,
[a]t the close of the State’s evidence, [the
juvenile] moved for dismissal for
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insufficient evidence, and her motion was
denied. [The juvenile] did not offer any
witness testimony; her evidence consisted of
the written statements by several teachers.
After [the juvenile] introduced these
statements, she rested her case and the
trial court immediately asked “Would you
like to be heard?” [The juvenile’s] counsel
argued vigorously that the evidence was
insufficient to support the charged offense.
Id. at 581-82, 660 S.E.2d at 655. This Court concluded this was
sufficient to preserve the juvenile’s right to review. Id. at
582, 660 S.E.2d at 655.
Here, at the close of the State’s evidence, Carl’s attorney
moved to dismiss on an unspecified basis: “Your Honor, at this
point, just for the record, I will make a motion to dismiss the
petition. I don’t wish to be heard further at this point.” The
court denied this motion. Carl’s attorney then introduced a
single exhibit into evidence, but did not renew his motion to
dismiss. In his closing argument, Carl’s attorney did not refer
to insufficiency of the evidence. Instead, he argued that Kate
was not credible and that her statements about the assault were
inconsistent. Carl’s attorney suggested that Kate made up the
story of a sexual assault because Carl had rejected Kate’s
advances toward him. In contrast, on appeal, Carl argues that
the State failed to present sufficient evidence that he used
force in the assault, that Kate was mentally disabled, or that
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Carl knew Kate was mentally disabled, as required to sustain an
adjudication of delinquency based upon second-degree rape.6
Thus, even if we were to interpret (1) Carl’s unspecified motion
to dismiss at the close of the State’s evidence as being based
upon insufficiency of the evidence on any of the elements of the
charges against him and (2) his closing arguments as a renewal
of that motion, it is plain that Carl did not present any
argument to the district court regarding insufficiency of the
evidence as to Carl’s use of force, his knowledge of Kate’s
mental disability, or the existence of that disability. We
“will not consider arguments based upon matters not presented to
or adjudicated by the trial tribunal.” State v. Eason, 328 N.C.
409, 420, 402 S.E.2d 809, 814 (1991); see also Wood v. Weldon,
6
Our General Statutes provide:
(a) A person is guilty of rape in the second
degree if the person engages in vaginal
intercourse with another person:
(1) By force and against the will of the
other person; or
(2) Who is mentally disabled, mentally
incapacitated, or physically helpless, and
the person performing the act knows or
should reasonably know the other person is
mentally disabled, mentally incapacitated,
or physically helpless.
N.C. Gen. Stat. § 14-27.3 (2013).
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160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003) (“As has been
said many times, the law does not permit parties to swap horses
between courts in order to get a better mount, meaning, of
course, that a contention not raised and argued in the trial
court may not be raised and argued for the first time in the
appellate court.”) (citation and internal quotation marks
omitted). Accordingly, we dismiss Carl’s arguments regarding
the sufficiency of the State’s evidence.
III. Disposition
Finally, Carl argues that the district court abused its
discretion in determining his disposition. We disagree.
Upon an adjudication of delinquency, a
juvenile . . . is placed in a level of
punishment, 1, 2, or 3, depending on the
juvenile’s delinquency history and the type
of offense committed. . . .
Once a juvenile is placed in a dispositional
level, the statutes provide dispositional
alternatives which may be utilized by the
trial court. However, in those instances
where there is a choice of level, there are
no specific guidelines solely directed at
resolving that issue. Accordingly, choosing
between two appropriate dispositional levels
is within the . . . court’s discretion.
Absent an abuse of discretion, we will not
disturb the . . . court’s choice. An abuse
of discretion occurs when the . . . court’s
ruling is so arbitrary that it could not
have been the result of a reasoned decision.
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In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229
(2002).
Section 7B-2508 of our General Statutes includes a chart
indicating the authorized dispositional levels for various
combinations of class of offense and delinquency history level.
N.C. Gen. Stat. § 7B-2508(f) (2013). Both second-degree rape
and second-degree sexual offense are Class C felonies, and
Carl’s delinquency history was “low.” Accordingly, the district
court had the authority to impose either a level 2 or level 3
disposition. Id.
In choosing among permitted dispositions, courts are
directed to consider:
(1) The seriousness of the offense;
(2) The need to hold the juvenile
accountable;
(3) The importance of protecting the public
safety;
(4) The degree of culpability indicated by
the circumstances of the particular case;
and
(5) The rehabilitative and treatment needs
of the juvenile indicated by a risk and
needs assessment.
N.C. Gen. Stat. § 7B-2501(c) (2013). A district “court is
required to make findings demonstrating that it considered the
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[section] 7B-2501(c) factors in a dispositional order entered in
a juvenile delinquency matter.” In re V.M., 211 N.C. App. 389,
391-92, 712 S.E.2d 213, 215 (2011).
Carl first contends that the district court erred in
considering “justice to the victim[,]” a factor not listed in
section 7B-2501(c). In In re D.A.Q., the case Carl cites in
support of this contention, we reversed and remanded an order of
restitution entered in a juvenile matter where the district
court “failed to make a finding of fact that the restitution was
in [the juvenile’s] best interest.” 214 N.C. App. 535, 537, 715
S.E.2d 509, 511 (2011).7 “Instead, the court based its decision
that [the juvenile] must pay [restitution] on a desire to avoid
an ‘injustice to the victim who has suffered a financial loss
and would not [otherwise] be fully compensated.’” Id. at 538,
715 S.E.2d at 511. In explaining its reasoning, this Court
observed that “compensation of victims should never become the
only or paramount concern in the administration of juvenile
justice.” Id. (citation and internal quotation marks omitted).
7
“An order of restitution must be supported by the record, which
demonstrates that the condition is fair and reasonable, related
to the needs of the child, and calculated to promote the best
interest of the juvenile in conformity with the avowed policy of
the State in its relation with juveniles.” In re Schrimpsher,
143 N.C. App. 461, 464, 546 S.E.2d 407, 410 (2001).
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We find In re D.A.Q. easily distinguishable. Here, the
dispositional order includes findings that the court considered
Carl’s predisposition report, needs assessment, and risk
assessment. The order also contains the following findings:
That the juvenile is a danger to the
community per the nature of the charges, the
multiple non[-]compliances with [electronic
monitoring], alternatives to detention[,
and] general court orders as well as
directives of the JCC.
That the victim suffered from mental illness
prior to the crime and has suffered from
PTSD as well as nightmares since the
incident [and] after testifying in court.
First, any desire of the district court to “compensate” Kate was
plainly not its “only or paramount concern” in this disposition.
As Carl himself notes in his brief, if anything, the court’s
primary focus appeared to be public safety. Further, we do not
find the language used in the second finding suggestive of a
desire to compensate Kate in any way. Rather, it appears to
reflect the court’s consideration of subsections (2) (“The need
to hold the juvenile accountable”) and (4) (“The degree of
culpability indicated by the circumstances of the particular
case”). N.C. Gen. Stat. § 7B-2501(c). We see no error in the
court’s finding regarding the impact of the assault on Kate.
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Carl also contends that the court erred because “nothing in
the transcript [of the disposition hearing] show[s] that [the
district court] considered all of the N.C. Gen. Stat. § 7B-
2501(c) factors.” Carl quotes a comment from the court which he
asserts shows that the court considered only the need to protect
public safety. We first note that the court must “make findings
demonstrating that it considered the [section] 7B-2501(c)
factors in a dispositional order” rather than simply orally at
the conclusion of the hearing. See In re V.M., 211 N.C. App. at
391-92, 712 S.E.2d at 215.
Further, the order’s findings explicitly addressed
subsections (1) (finding that “[t]he juvenile has been
adjudicated for a violent or serious offense”), (2) (findings
regarding the seriousness of the offense as well as Carl’s
history of noncompliance), (3) (finding that “the juvenile is a
danger to the community”), (4) (findings regarding the violence
and seriousness of the offense as well as the victim’s mental
disability), and (5) (findings that the court considered Carl’s
risk and needs assessments). This argument is overruled.
Accordingly, the order of the district court is
AFFIRMED.
Judges GEER and ERVIN concur.
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Report per Rule 30(e).