An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
                                      -2-


      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.
                                      -3-
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.
                                            -4-
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
                                        -5-
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
                                   -6-
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
                                       -7-
    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.
                                      -9-
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.
                                      -10-
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
                                    -11-
             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
                                     -12-
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).
                                     -13-
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.
                                        -14-
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
                                         -15-
[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).
                                          -16-
      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.
                                        -17-
    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.
                         -18-
Report per Rule 30(e).
