In the Matter of D.R.J., __ N.C.App. __

Facts: The juvenile’s younger sister reported that the juvenile engaged in sexual intercourse with her. The sister was 13 years old and functioned at an 8-year-old level due to an intellectual disability.  The sister testified that she told the juvenile no and to stop and that she did not give him permission and tried to leave the room. She also testified that her brother removed her clothes when she refused to remove them. On cross examination she stated that her brother did not hold her, grab her, or force her with his hands. She also stated that her brother made her come closer when she tried to step away from him and grabbed her and would not let her go. The juvenile’s attorney attempted to elicit testimony from the grandparents regarding the sister’s propensity for conflating things she saw on television as real because she had watched a show focused on a lifeguard being a predator the night before she reported the allegation. The court did not allow this line of questioning. The juvenile was adjudicated delinquent for felony second-degree forcible rape, misdemeanor sexual battery, and felony incest.

Opinion:

Motion to dismiss for insufficiency of the evidence

The juvenile alleged that the petitions for second-degree forcible rape and sexual battery should have been dismissed for failure to present substantial evidence of physical force. While the juvenile’s attorney moved to dismiss at the close of the State’s evidence, he did not renew that motion at the close of all evidence. This objection was therefore not preserved. The court did not invoke Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits of the issue to prevent manifest injustice because the unpreserved argument was without merit (as explained in the ineffective assistance of counsel analysis).

Ineffective assistance of counsel

The failure to renew the motion to dismiss the second-degree forcible rape and sexual battery petitions at the close of evidence does not constitute ineffective assistance of counsel. The juvenile cannot show prejudice from the failure to renew the motion because, had the attorney renewed the motion, the court would have properly denied it.

Denial of a motion to dismiss will be upheld if there is substantial evidence of each element of the offense and of the juvenile being the perpetrator. The juvenile’s argument that there was not substantial evidence of force is without merit. Force can be established by actual physical force or constructive force. The Supreme Court’s reasoning in In re J.U., 384 N.C. 618 (2023), regarding force required to prove sexual battery, that “one cannot engage in nonconsensual sexual contact with another person without the application of some ‘force,’ however slight” applies to the use of force in second-degree forcible rape allegations as well. The evaluation of the sufficiency of conflicting evidence requires that any conflicts are resolved in favor of the State. The evidence showed the use of force, however slight, to compel the sister’s submission and overcome any resistance. This meets the low bar needed to overcome a motion to dismiss.

Exclusion of testimony

The juvenile’s attorney failed to make a showing demonstrating the substance of the grandparents’ excluded testimony. The exclusion of evidence cannot be overruled when the record does not show what the witness would have testified to had they been permitted to testify. Appellate review of the issue of the exclusion of the testimony is hampered due to the failure to offer proof demonstrating the substance of the excluded testimony. This argument is dismissed.