An unpublished opinion of the North Carolina Court of Appeals does not constitute 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). 
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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 seconddegree 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.
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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-yearold 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.
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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 
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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 
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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
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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. 
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§ 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.
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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.
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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 
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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 
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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).
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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.
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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 
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[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).
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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. 
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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. § 7B2501(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.
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Report per Rule 30(e).