In re T.K. Show Court’s Indecision on Importance of Statutory Requirements by Jonathon Woodruff

Last month, the NC Court of Appeals in In the Matter of T.K. declined to extend the holding from In re D.S., 364 N.C. 184 (2010), in favor of a new holding placing some jurisdictional responsibility on Juvenile Court Counselors.

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The principal issue in In re D.S. was the timing with which a delinquency petition was filed. An SRO filed two separate complaints based on the same set of facts. The first petition charged the juvenile’s conduct as a simple assault and was filed on the same day that the event occurred. The second petition charged the juvenile with sexual battery and was filed approximately 26 days later, 11 days beyond statutory requirements. The Juvenile Code requires that Juvenile Court Counselors shall complete the evaluation of a complaint within 15 days of receipt of the complaint, with a 15 day extension at the discretion of the Chief Juvenile Court Counselor (see N.C. Gen. Stat. 7B-1703(a)). On appeal, it was argued that it was error for the court to have adjudicated the juvenile for the second petition, because it arose from the same set of facts as the first and therefore was in essence the same petition. The fact that the second petition was filed beyond the statutory limit meant that the court lacked subject matter jurisdiction. The juvenile claimed that the Juvenile Court Counselor should have investigated the initial complaint further and included sexual battery if it was appropriate.

The Court disagreed, explaining that the language of the statute intended for each separate complaint, as in the actual document that is alleging delinquency, to be considered by itself without reference to earlier complaints. The second petition was therefore filed within the statutory limit and was adjudicated properly. The Court went on to say that it is not the role of the Juvenile Court Counselor to conduct extensive investigations of the like which were suggested by the juvenile on appeal. Specifically, a Juvenile Court Counselor’s primary responsibility upon receiving a complaint is to determine whether they are strictly required to or prohibited from filing a petition based on the complaint. If neither of those apply, the Counselor is then to conduct an evaluation to decide whether or not a petition should be filed. The Court stated that the Counselor is neither expressly permitted nor obligated to investigate anything beyond the allegations in the complaint to find any and every offense that may apply. Additionally, the Counselor is expressly forbidden from conducting field investigations for the purpose of substantiating claims and providing supplementary evidence during the intake process. Therefore, the Court concludes, the Juvenile Court Counselor in this case did exactly what was supposed to be done. The Court also states that there is no basis for a finding that the statutory time limits have any bearing on jurisdiction anyway.

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This holding would seem to be in contrast with the more recent holding of In the Matter of T.K. Here the court held that a Juvenile Court Counselor’s failure to sign a petition and to mark it “Approved for Filing,” as required by N.C. Gen. Stat. 7B-1703(b), was an error that cost the court any jurisdiction over the matter. Due to a lack of precedent on this issue, the court looked at Abuse/Neglect/Dependency cases to determine the matter. There is a consistent line of cases on this issue; the lack of signatures and verification on petitions in Abuse, Neglect, and Dependency court will result in a lack of subject matter jurisdiction. The Court of Appeals ruled accordingly in T.K. and held that the court lacked subject matter jurisdiction in the case due to the lack of a Juvenile Court Counselor’s signature.

The difference between these two cases seems trivial. In one the court held that a statutory requirement had nothing to do with jurisdiction, and in the second the court held that jurisdiction turned on compliance with a different statutory requirement. For practitioners, it would be wise to always make sure that the statutory requirements are followed to the letter, and to preserve such issues for appeal if they are not. Do not let a lengthy amount of practice in this area blind you to discrepancies that can result in overturned adjudications.

Advising Juveniles of the Consequences of Sexting by Guest Blogger Lama Sinno

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I tell my colleagues on a weekly basis that I am so glad that I grew up in the pre-smartphone era.  There is no telling how much trouble I would have gotten into if I had access to as much technology as our youth do today.  Raging hormones, impulsivity and the angst of just being a teenager coupled with a smartphone is a recipe for disaster.  Imagine your younger self and the pictures, memes and uncensored opinions you could have shared with the world via Facebook, Instagram, Kik, WhatsApp and Snapchat.  I realize as I type this that some of you reading this did have smartphones when you were teenagers…  So forgive me for sounding like your Grandma.  This piece really should be called “What Your Grandma Would Tell You About Using Your Smartphone”.  I think she would say, “Put that phone away!” and “Why would you take a naked picture of yourself!”.  It is becoming a regular occurrence to see a teenager charged for obtaining or sharing nude photos.  It is ridiculously easy to share these photos, which can then be saved or forwarded to someone else or posted on someone’s social media account.

North Carolina does not have a specific “sexting” law as some other States do.  North Carolina prosecutes sexting, for the most part, under pornography statutes.  It is a crime in North Carolina to share inappropriate, or obscene, photos.  We can agree that everyone has their own definition of what is inappropriate or obscene.  The State of North Carolina defines obscenity in NCGS § 14-190.1(b) as material which:

(1) depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and

(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and

(3) lacks serious literary, artistic, political, or scientific value; and

(4) as used, is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.

Sexual Conduct, referenced in subsection (1) above, is defined in NCGS § 14-190.1(c) as:

(1) Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or

(2) Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or

(3) An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.

The dissemination of obscenity is unlawful and is a Class I felony.  How do we judge obscenity?  Subsection (d) gives us some guidance:

(d) Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences. NCGS § 14-190.1(d).

I have used this section to mitigate the seriousness of sexting to prosecutors- who is the audience for these photos and are these just kids flirting with each other?  I advise my clients- If you wouldn’t want your Grandma to see it, don’t share it!

In addition to prosecution under the obscenity statute described above, I am regularly seeing charges under NCGS §14-190.5A, Disclosure of Private Images, also known as the Revenge Porn Statute.  This is a new statute, enacted in 2015, which applies when parties are in a personal relationship.  Personal relationship is defined in NCGS §50B-1(b), and includes persons of the opposite sex who are or have been in a dating relationship.  The statute also defines dating relationship as one in which “the parties are romantically involved over time and on a continuous basis during the course of the relationship,” but does not include casual acquaintances or ordinary fraternization between people in a social or business setting.  NCGS §50B-1(b).  In my opinion, the definition leaves a lot of room open for argument as to whether your client was in such a relationship.

A person is guilty of disclosure of private images if all of the following apply:

(1) The person knowingly discloses an image of another person with the intent to do either of the following:

  1. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
  2. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2) The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3) The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4) The person discloses the image without the affirmative consent of the depicted person.

(5) The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.  NCGS §14-190.5A(b)

The statute defines reasonable expectation of privacy in NCGS §14-190.5A(a)(5) as when the depicted person consented to the disclosure of the image with in the context of the personal relationship and reasonably believes the disclosure will not go beyond that relationship.  Is it ever reasonable to believe that images on a smartphone will be kept private?  Maybe.  But maybe we should advise our clients that there’s no guarantee of that.  Please advise your clients to permanently delete any inappropriate or obscene photos or videos of their former significant others/ dating partners/ love interests.  Under no circumstances should these private images be shared with anyone else.  Getting even with your former flame can get you a felony conviction.  In juvenile court, it will likely get you probation and sex offender specific counseling.

An important note for Juvenile Defenders- the statute treats offenders under the age of 18 more leniently- the first offense is a Class 1 misdemeanor.  A second or subsequent offense, however, is a Class H felony.  NCGS §14-190.5A(c).

A recent case of mine involved a client who positioned his smartphone so as to snap a photo under his teacher’s skirt as she walked by.  The photo was sent to two other boys and a parent reported it to school authorities.  This young man, who had just turned 18, was a straight “A” student and had no experience with the court system.  He was charged with the Class I Felony of Peeping- Secretly Using A Photographic Imaging Device to View Another’s Body or Undergarments, NCGS §14-202(e).  More concerning is that he was also subject to sex offender registration with a conviction under this statute.  Luckily, while the behavior was completely inappropriate, the photo was not too revealing and the teacher was on board with a conditional discharge for this young man.  He was very fortunate that the prosecutor considered his youth and his reckless use of his smartphone.

Another local case involved two 16 year olds who consensually engaged in oral sex while filming the act.  The act depicted the female performing fellatio on the male.  The female appeared to be aware that the activity was being filmed.  The app Periscope, associated with Twitter, was used to film the activity.  So it was basically a live streaming movie.  The male was charged with First Degree Sexual Exploitation of a Minor, NCGS §14-190.16, a Class C felony, which carries a mandatory active sentence and sex offender registration.  The female was not charged.  I don’t agree with either charging decision.  However, it is clear that a situation in which acts are streamed live are subject to more serious charges.  Luckily, the case was resolved via a conditional discharge.  The link below describes a few popular live- streaming apps, for your information.

http://www.practicalecommerce.com/articles/122843-12-Apps-for-Live-streaming-Video

 So, what would your Grandma tell you about using your smartphone:

  1. Put that phone away!
  2. Respect other people’s privacy.
  3. Don’t take or send naked photos of yourself or anyone else.
  4. Do not video or live stream sexual acts.
  5. Anything you put on the internet can be saved, downloaded or “screenshot”. Don’t be naïve enough to believe that it will disappear.

In all seriousness though, I believe young people today are under so much more pressure socially due to the prevalence of social media and the constant sea of cameras ready to record anything with one click.  It makes me wonder if we as practitioners should advise juveniles and their parents to stay off of social media sites altogether and severely restrict smartphone usage.  But then again, that sounds like something your Grandma would say, “You and your internets!”

For more information on this topic, visit the UNC School of Government’s Criminal Law Blog, and check out the posts by Professor Latoya Powell.

In Johnston County, Lama Sinno is the new juvenile delinquency contractor, joining current contractor Aleta Ballard.  Lama grew up in Durham, North Carolina and obtained her undergraduate degree from UNC Chapel Hill in 1995.  She obtained her law degree from Campbell University in 2001.  Lama has been in private practice in Johnston County since October 2003.  She practices criminal law, represents parents and juveniles in juvenile proceedings and represents injured workers in workers compensation claims.  She lives in Clayton, North Carolina with her husband and daughter, who are also avid Tarheel fans.  She can be reached at lama.a.sinno@gmail.com, or via Facebook and LinkedIn.