# In Re Clapp

> Court of Appeals of North Carolina · March 21, 2000 · 137 N.C. App. 14

URL: https://www.frixlaw.com/law-library/cases/9561171

## Case

- **Full name:** In the Matter Of: Jonathon Matthew Clapp
- **Court:** Court of Appeals of North Carolina
- **Decided:** March 21, 2000
- **Citations:** 137 N.C. App. 14; 526 S.E.2d 689; 2000 N.C. App. LEXIS 252
- **Precedential status:** Published
- **Opinion:** Concurrence by Greene
- **Judges:** Walker, Timmons-Goodson, Greene
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9561171

## How later opinions describe it (automated extraction)

- holding that, as the juvenile charged with delinquency on the grounds of committing a second-degree sexual offense failed to move for dismissal at the close of the evidence against him, he was precluded from challenging the sufficiency of the evidence on appeal
- concluding a statement fell within the Rule 803(4) exception when - 29 - STATE V. BLANKENSHIP Opinion of the Court the child-victim made the statement in the hospital emergency room and after the mother informed doctors of the alleged incident
- concluding a statement fell within the Rule 803(4) exception when the child-victim made the statement in the hospital emergency room and after the mother informed doctors of the alleged incident

## Opinion text

Judge Greene
concurring in the result.
I do not agree with the majority that, had M.H. been found incompetent to testify, “M.H.’s statements to her mother and her doctor would have been admissible through the doctor’s testimony under the medical diagnosis and treatment exception.” The record shows that M.H.’s doctor did not testify in this case. This Court cannot, when reviewing a case, make assumptions regarding evidence one of the parties would, have offered during the trial below when that party did not, in fact, offer the evidence. We must therefore assume, when considering the juvenile’s claim for ineffective assistance of counsel, that M.H. would have been found incompetent to testify, and the only evidence regarding M.H.’s statements came from Ms. Delzo’s testimony.
Defendant argues he received ineffective assistance of counsel because his attorney failed to make a motion to dismiss for insufficient evidence of force, which is an element of second-degree sexual offense. N.C.G.S. § 14-27.5 (1999).
“To defeat a motion to dismiss on insufficiency of the evidence, there must be substantial evidence to establish each essential ele *27 ment of the crime charged.” State v. Jordan, 321 N.C. 714, 717 , 365 S.E.2d 617, 619 (1988). “Substantial evidence ‘must be existing and real,’ and is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting State v. Irwin, 304 N.C. 93, 98 , 282 S.E.2d 439, 443 (1981)).
In this case, Ms. Delzo testified M.H. told her the juvenile “made her take her clothes off’ and “was licking her privates.” At the time of the incident, M.H. was three years old and the juvenile was twelve years old. A reasonable person could find, based on M.H.’s statement’s to her mother as well as M.H.’s age in relation to the age of the juvenile, that the juvenile used force against M.H. The evidence of force, therefore, was sufficient to withstand a motion to dismiss for insufficiency of evidence. Accordingly, I agree with the majority that failure of the juvenile’s attorney to make a motion to dismiss did not prejudice the juvenile’s defense, and the juvenile consequently did not receive ineffective assistance of counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9561171. Public record. Not legal advice.