In re Howett

PARKER, Judge. Respondent contends that the juvenile court erred in denying his motion to dismiss for insufficiency of evidence. Under G.S. 7A-631 of our Juvenile Code, juvenile respondents are entitled to have the evidence presented in their hearing [144] evaluated by the same standards as apply in criminal trials against adults. In re Meaut, 51 N.C. App. 153, 275 S.E. 2d 200 (1981). To support a conviction there must be substantial evidence of every essential element of the offense charged. State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). Substantial evidence is the amount of relevant evidence that would convince a rational trier of fact. Id. Second degree rape is engaging in vaginal intercourse with another person by force and against the will of the other person. G.S. 14-27.3(a)(l). “By force and against the will of the other person” is defined as notwithstanding her resistance. State v. Franks, -- N.C. App. ---, 329 S.E. 2d 717 (1985), citing State v. Gammons, 260 N.C. 753, 133 S.E. 2d 649 (1963). In Gammons, the defendant, a preacher, lured the victim into a bedroom in his house by telling her that they must pray together. Defendant’s wife was in the house at the time. Defendant laid his hands on the victim’s head and started praying; then he pushed the victim on the bed and got on top of her. He told her that she would be healed if he had sexual intercourse with her. Defendant put his hand up the victim’s dress and tried to remove her underwear. She started crying and told him “No, I don’t believe no such mess as that.” When the victim felt defendant’s body touch hers, she told him that she would scream. Defendant then got up, unlocked the door and let her go. The court explained that to convict the defendant on the charge of assault with intent to commit rape the State must prove that defendant committed an assault and that he “intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part.” 260 N.C. at 755, 133 S.E. 2d at 651. The court noted that defendant did not threaten to do violence to the victim if she did not yield to his demands and that when she threatened to scream he immediately stopped and released her; this conduct, the court held, was not sufficient to show an intention to overcome the victim’s resistance by force in order to have sexual intercourse. Similarly, in the instant case, respondent tried to remove the minor female’s shorts, and stopped when she simply spread her legs to prevent her shorts from sliding off. When the minor female told him to stop and that her mother would be home soon, respondent got up and left. In our view, this evidence is not sufficient as a matter of law to support the essential finding that [145] respondent intended to have sexual intercourse with the minor female notwithstanding her resistance. Accordingly, the adjudication order is Reversed. Chief Judge HEDRICK and Judge ARNOLD concur.