In the Matter of J.D., 376 N.C. 148 (December 18, 2020)

• Facts: Zane, a guest at J.D.’s house for a sleepover, awoke to find his pants pulled down and J.D. behind him. J.D. also had his pants down and was engaged in a thrusting motion behind Zane. Zane testified that he believed someone was holding his legs and that he felt J.D.’s privates on his butt, although he did not feel penetration. Two other boys, Dan and Carl, were also present for the sleepover. Dan videotaped some of the incident on his phone. J.D. can be heard on the video telling Dan not to record the incident. At the end of the video, J.D. gives what may have been a thumbs up. The video was distributed by Dan to two others. J.D. was adjudicated delinquent for committing first-degree forcible sexual offense and second-degree sexual exploitation of a minor. Prior to disposition, J.D. admitted to attempted larceny of a bicycle in a separate incident. The trial court entered a Level 3 disposition, committing J.D. to a YDC.
• Second-degree sexual exploitation of a minor:  The trial court erred as a matter of law by denying J.D.’s motion to dismiss the charge of second-degree sexual exploitation of a minor. There is agreement that the recording was made by Dan and not J.D. The state relied on the theory of acting in concert as to J.D.’s culpability. There was insufficient evidence as to a common plan or purpose between J.D. and Dan. The evidence tended to show that J.D. did not want to be recorded, as he told Dan he didn’t want it recorded. If the hand gesture at the end of the video was a thumbs up, evidence of acting in concert requires more than mere approval. Adjudication for this charge is vacated.
• First-degree forcible sexual offense: This offense requires that the juvenile engaged in a sexual act with another person by force and against the will of the other person. A sexual act requires penetration, however slight. The victim unambiguously testified that penetration did not occur. The statements of the other children who were present and the video footage only suggest that penetration could have occurred. That is not enough to overcome the victim’s testimony regarding lack of penetration. Following J.D.’s motion to dismiss, the state conceded that there was not evidence of penetration. The trial court erred in denying J.D.’s motion to dismiss this charge and the adjudication is vacated.
• Attempted larceny: Presence at the crime scene coupled with the juvenile’s possession of tools used to commit the crime were sufficient evidence for the trial court to accept the juvenile's transcript of admission. There was no error in accepting the admission to attempted larceny. The initial disposition was based on the adjudications that are now vacated. The matter cannot be remanded for a new disposition based on adjudication of this offense because the juvenile turned 18 and there is therefore no longer juvenile jurisdiction in the matter.

Dissent

• Justice Newby agreed with the majority in that acceptance of the respondent’s admission was acceptable and that the evidence was insufficient to support the adjudications for second-degree sexual exploitation of a minor and first-degree forcible sexual offense. However, the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and the case should therefore have been remanded for entry of an amended adjudication against the respondent for attempted first-degree sexual offense.