Criminal Practice – Juvenile – Crime Against Nature – Penetration

In re R.N. (Lawyers Weekly No. 10-07-0794, 12 pp.) (Robert C. Hunter, J.) Appealed from Guilford County District Court. (Polly D. Sizemore, J.) N.C. App.

Holding: Even though there was evidence that the juvenile licked the genitals of his seven-year-old cousin, there was no evidence of penetration – one of the elements of the offense of crime against nature.

We reverse the adjudication of delinquency based on the allegation of cunnilingus. We vacate the adjudication based on fellatio and remand for reconstruction of the transcript.

There was evidence that the juvenile forced his female cousin’s head into his genital area. However, the only time a witness testified as to whether the juvenile’s penis penetrated his cousin’s mouth, the transcript says “(Indistinct Muttering).” As appellant, it was the juvenile’s responsibility to correct the error in the transcript by requesting a hearing to reconstruct the substance the relevant testimony.

Because we cannot determine from the witness’s testimony whether penetration occurred, we cannot meaningfully review the sufficiency of the evidence to withstand the juvenile’s motion to dismiss. Consequently, we vacate the adjudication and remand this case to the trial court to conduct a hearing to reconstruct the pertinent testimony.

Reversed in part, vacated and remanded in part.