An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1051
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


In the matter of:

A.A.P.

                                              Onslow County
                                              No. 10JB109



       Appeal by juvenile from orders entered 26 April 2013 by

Judge Sarah C. Seaton in Onslow County District Court.                    Heard in

the Court of Appeals 5 February 2014.


       Attorney General Roy A. Cooper, III, by Special Deputy
       Attorney General Stephanie A. Brennan, for the State.

       Mary McCullers Reece, for the juvenile.


       DILLON, Judge.


       The juvenile (“Adam”)1 appeals from a Level 2 disposition

order entered 26 April 2013 adjudicating him delinquent.                        The

basis of the disposition was two counts of sexual battery, and

the disposition included fourteen days intermittent confinement

and nine months of probation.           We affirm.


1
    A pseudonym.
                                       -2-
    The evidence of record tends to show that Adam, who was

fourteen years old and in seventh grade, rode the school bus

with Tucker,2 a thirteen-year-old eighth grader, and Tom, a ten-

year old.

    Tucker described Adam as someone whom he knew from riding

the bus, and whom he would only see “just down the hallway” at

school.      Tucker    never   saw    Adam    outside    of    school.      Tucker

testified that        Adam grabbed his penis outside his clothes with

his hand on a number of occasions.               Tucker provided a written

statement:     “A guy I sit by on the bus keeps touching me and

grabbing me in my private parts and has caused me to switch

seats while the bus was moving or fall out of my seat.                          I

appreciate it if you did not write [him] up and please do not

tell him it was me.”           Three or four other students saw the

foregoing happen.

    Another      thirteen-year-old           eighth     grader,     named    Ben,

testified that he saw Adam go behind Tom, who was Ben’s brother,

and pretend to “rape him from behind” on multiple occasions.

Specifically,    Ben    said   Adam    was    “mimicking      the   movements   of

inserting his parts into [Tom]’s behind.”                     According to Ben,

Adam said, “Oh look I’m raping him.”                  Ben also affirmed that



2
    Pseudonyms are used throughout this opinion.
                                           -3-
Adam “reached his arm around” his brother, Tom, and “grabbed

[him]   on    the    chest[,]”       and     Ben   described      the    touching    as

“rubbing.”         Ben said he had never seen Adam and Tom talking

before the incidents, and when asked whether they were friends,

Ben   said,       “they’re    sort    of     neutral[.]”         Ben    provided    the

following written statement:

              When me and my brother, [Tom], get on the
              bu[s] in the afternoon, there’s this kid
              named [Adam] who yesterday said that he was
              molesting [Tom] and touching his nipples.
              This happened once before except he was
              pretending to have jabbing [(sic)] his
              wiener into [Tom’s] butt. He has also
              spanked [another kid] but many kids have
              seen it but some will laugh at the actions.
              I’m very concerned about these actions
              because [Tom] is young and these kind of
              things [(sic)] can haunt someone for the
              rest of their life.

Testimony     also       showed   that     Adam    “was    making      sexual   sounds”

during this incident.

      The assistant principal testified that Tucker told her “he

was being touched inappropriately by [Adam] on the bus.”                            When

the   assistant      principal       asked    Tucker      why   Adam    touched    him,

Tucker said, “you know, messing around, just cutting up.”                            In

addition     to    the    foregoing      incidents,       the   assistant   principal

also testified to other incidents,                  one in which Adam “pants

another student[,]” meaning that he “pull[ed] their . . . gym
                                     -4-
shorts down[,]” and another called the “ball bagging game” that

involved   “hitting,   .   .   .   grabbing,   pulling   .    .    .    the   male

genitals of another person.”          When specifically asked whether

she thought this behavior was horseplay, the assistant principal

replied, “I think it was probably intended that way, but it was

not perceived or received that way.”

      Adam described his behavior as “just a game that other boys

do[,] . . . a game called nut check[,]” where “we both hit each

other inside the nut part[,]” and that “it wasn’t nothing like

towards for pleasure or anything it was just something we did,

sir.”   Adam also said, “I never grabbed his penis, I mean, I hit

him but I never grabbed his penis.”

      At the close of the State’s evidence and at the close of

all   evidence,   Adam’s   counsel    moved    to   dismiss       the   charges,

arguing that there was a lack of substantial evidence that Adam

acted with a sexual purpose.           The trial court denied Adam’s

motion, stating the following:

           I think Mr. Taylor asked the appropriate
           questions when he asked uhm, Ms. Hardin, ‘how
           do you think [Adam] perceived this versus how
           the boys perceived it’ and you may have been
           messing around but you don’t grab anybody’s
           penis that’s not a close friend of yours on
           your basketball team for that matter. I can
           understand how getting in a locker room with
           the buddies that’s on your basketball team,
           uhm, you can do that kind of thing and that
                                         -5-
            seems to be a big joke, but you don’t do it
            to people that you’re not close to. Uh, and
            the   allegations  in   this case   are  you
            obviously did it to two individuals that you
            were not close to. Uh, that’s the basis for
            the Court’s decision. . . .

The trial court entered a Level 2 disposition adjudicating Adam

delinquent,     from    which     Adam   appeals,     challenging   the   trial

court’s denial of his motion to dismiss.

                               I: Motion to Dismiss

      In Adam’s sole argument on appeal, he contends the trial

court erred by denying his motion to dismiss the charges of

sexual   battery    because      there   was   insufficient    evidence   of   a

sexual purpose.        We disagree.

      “We review a . . . court’s denial of a [juvenile’s] motion

to dismiss de novo.”           In re S.M.S., 196 N.C. App. 170, 171, 675

S.E.2d 44, 45 (2009) (citation omitted).                 “Where the juvenile

moves to dismiss, the . . . court must determine whether there

is substantial evidence (1) of each essential element of the

offense charged, . . . and (2) of [the juvenile’s] being the

perpetrator of such offense.”            In re Heil, 145 N.C. App. 24, 28,

550   S.E.2d     815,    819    (2001)    (citation    and    quotation   marks

omitted).      “The evidence must be such that, when it is viewed in

the light most favorable to the State, it is sufficient to raise

more than a suspicion or possibility of the respondent’s guilt.”
                                        -6-
In re Walker, 83 N.C. App. 46, 48, 348 S.E.2d 823, 824 (1986).

    A juvenile can be found delinquent of sexual battery if,

“for the purpose of sexual arousal, sexual gratification, or

sexual    abuse,   [the    juvenile]    engages     in   sexual    contact   with

another person . . . [b]y force and against the will of the

other    person[.]”       N.C.   Gen.   Stat.   §   14-27.5A      (2011).    Adam

argues that, in this case, there is not sufficient evidence to

support a finding of sexual purpose.

    On the question of sexual purpose, this Court has held

“that such a purpose does not exist without some evidence of the

child’s maturity, intent, experience, or other factor indicating

his purpose in acting[.]”          In re K.C., ___ N.C. App. ___, ___,

742 S.E.2d 239, 242-43, disc. review denied, __ N.C. __, 747

S.E.2d    530   (2013)     (citation     and    quotation    marks     omitted).

“Otherwise, sexual ambitions must not be assigned to a child’s

actions.”    Id.

            The element of purpose may not be inferred
            solely from the act itself. Rather, factors
            like age disparity, control by the juvenile,
            the location and secretive nature of the
            juvenile’s actions, and the attitude of the
            juvenile should be taken into account.   The
            mere act of touching is not enough to show
            purpose.

Id. (citations and quotation marks omitted).

    In this case, the evidence shows that Adam’s conduct was
                                           -7-
repeated; he used sexual language, such as saying that he was

“raping” Tom, while “rubbing” Tom’s chest, making sexual noises,

and simulating a sexual act; he also said to Tucker, “you know

you     like   it     like     that[;]”     and    he      showed   a    pattern    of

inappropriately touching other boys.                 Adam argues that there is

insufficient        evidence    of    sexual     purpose    because     the    evidence

shows that Adam’s actions were merely horseplay.                         We believe,

however, when the evidence is viewed in the light most favorable

to the State, it could be inferred from the evidence that Adam

acted    for   the     purpose       of   sexual    arousal    or     sexual    abuse.

Accordingly, we believe the evidence was sufficient to withstand

Adam’s motion to dismiss.

      AFFIRMED.

Judge BRYANT and Judge STEPHENS concur

      Report per Rule 30(e).
