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In re Griffin2/3/2004
PUBLISHED
Daniel Glenn Griffin (respondent) appeals from juvenile orders adjudicating him delinquent for commission of first-degree sexual offense in violation of N.C. Gen. Stat. § 14-27.4, and imposing a probationary sentence. Respondent brings forth a single assignment of error, asserting the trial court erred by denying his motion to suppress a statement respondent gave to the detective investigating this case. However, we do not address this issue because we conclude that a fatal variance existed between the juvenile petition filed herein and the evidence upon which respondent was adjudicated delinquent, in that (1) the petition alleged only sexual offense "by force against the victim's will;" (2) there was no evidence presented at the adjudicatory hearing which tended to show respondent committed forcible sexual offense; and (3) the hearing transcript indicates the trial court adjudicated respondent a juvenile first-degree sex offender based on the respective ages of respondent and the victim, despite the petition's failure to allege either the victim's age or the difference in age between respondent and the victim. This fatal variance between the juvenile petition and the evidence upon which respondent was adjudicated delinquent compels us to vacate the adjudication and disposition orders.
Evidence presented at the adjudicatory hearing tended to show that respondent, who was then twelve years old, respondent's sixteen-year-old half-brother, and the victim, then four, spent the weekend of 10 November 2000 at their grandmother's home. Respondent and the victim were cousins. The victim's mother testified that upon returning home, the victim told her that respondent "stuck his [penis] in [the victim's] butt." Respondent's half-brother testified that on the weekend in question he heard the victim say respondent had "licked [the victim's penis] and stuck [respondent's penis] in [the victim's] butt." Dr. Cindy Brown examined the victim on 13 November 2000 and noted redness around his anal opening, which she testified was "consistent with penetration" but could also be caused by poor hygiene. During an interview with Detective Preston Hunnicutt of the Buncombe County Sheriff's Department on 16 November 2000, respondent stated that he "licked [the victim] on his private" and "stuck [respondent's] private in [the victim's] butt."
On or about 1 October 2001, a juvenile petition was filed seeking adjudication of respondent as delinquent pursuant to N.C. Gen. Stat. § 7B-1501(7) (2003). The petition alleged only that on or about 10 November 2000, in Buncombe County, respondent, then 12 years old, "unlawfully, willfully, and feloniously engage in a sex offense with [the victim] by force against the victim's will." At the adjudicatory hearing on 12 February 2002, after the close of the State's evidence, the following exchange took place between respondent's trial counsel, the prosecutor, and the trial court: BY MR. WILLIAMS [Respondent's trial counsel]:
Your Honor, at this time I would like to make a motion to dismiss. . . . Having reviewed the juvenile petition, it is clear that the -- it clearly states . . . that the juvenile Daniel Griffin did unlawfully and willfully engage in a sex offense with [the victim] by force against the victim's will. The petition alleges force, and I don't believe the Court can find any evidence as to force that has been presented on record this morning or this afternoon.
BY THE STATE: Your Honor . . . . Guilty of first degree sex offense is (inaudible) who is a child under the age of 13 -- and if he's 12 years old, he's four years older than the victim -- (inaudible). The statute is clear, 14-27.4, also in terms of amending a peti
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