1. Probation and Parole--condition of probation of juvenile--no television
When placing three juveniles on probation for injury to real property in converting what
they believed to be an abandoned boat house to a clubhouse, the trial court did not err by placing
an additional condition on the appealing juvenile's probation where the juvenile spray painted
the words “Charles Manson” because she had recently watched a television documentary, and
the court found that the juvenile's susceptibility to the influences of television contributed to her
delinquent conduct and ordered that she not watch television for one year. The condition of
probation was within the judge's power because it was related to both the juvenile's unlawful
conduct and her needs. Her First Amendment rights were not violated because the judge took
her words into account only to determine what factors influenced her delinquent conduct and the
best way to remove those factors from her life.
2. Probation and Parole--restitution--evidence insufficient
The trial court erred by ordering a juvenile to pay restitution for rearranging items and
spray painting words and pictures on a boat house wall where the only evidence of the extent of
the damage consisted of pictures of the spray painted walls. It is undisputed that the State failed
to provide any evidence about the monetary amount of damages suffered by the boat house
owner and it appears that the court looked at the pictures and speculated as to the damage.
Appeal by juvenile Shannon Marie McDonald from judgment
entered 27 April 1998 by Judge Edgar L. Barnes, District Court,
Camden County. Heard in the Court of Appeals 11 May 1999.
Michael F. Easley, Attorney General, by Ted R. Williams,
Assistant Attorney General, for the State.
Frank P. Hiner, IV, for defendant-appellant.
WYNN, Judge.
Between 25 December 1997 and 5 January 1998, defendant
Shannon McDonald and two other fourteen-year-old girls spent part
of their Christmas break playing in what they believed to be anabandoned boat house. At some point, the girls decided to
transform the boat house into a “clubhouse” and accordingly
rearranged some items and spray painted words and pictures on the
boat house walls. McDonald spray painted, inter alia, the words
“Charles Manson Rules.” The other two girls spray painted words
such as “Nicole and Deanna Best Friends.”
Ultimately, the three girls were found “responsible” for the
charge of injury to real property. All three girls were given
twelve months of juvenile probation with virtually identical
conditions; including the condition that they pay the boat house
custodian restitution in the amount of two hundred dollars.
During the disposition phase, McDonald informed the judge
that she spray painted the words “Charles Manson” because she had
recently watched a documentary on television about him. This
revelation led the judge to believe that McDonald was “too
susceptible to impression to be watching television” and
accordingly he ordered an additional condition of probation, to
wit, that she not watch television for one year. McDonald
appeals both this additional condition and the judge's
restitution order.
[1]On appeal, McDonald first contends that the judge's
decision to place an additional condition on her probation--that
she not watch television for a year--violates her First Amendmentrights. Specifically, McDonald contends that Judge Barnes
singled her out for special punishment because of the content of
her writings rather than her conduct in spray painting the
structure.
Initially, we note that under N.C. Gen. Stat. § 7A-649(8) a
judge may place a juvenile on probation and “shall specify
conditions of probation that are related to the needs of the
juvenile.” In deciding the conditions of probation, the trial
judge is free to fashion alternatives which are in harmony with
the individual child's needs. See In re Groves, 93 N.C. App. 34,
376 S.E.2d 481 (1989). Indeed, the statutory framework was
designed to provide flexible treatment in the best interests of
both the juvenile and the State. See In re Khork, 71 N.C. App.
151, 321 S.E.2d 498 (1984).
In the case sub judice, the judge found that McDonald's
susceptibility to the influences of televison contributed to her
delinquent conduct. Accordingly, the judge concluded that it was
in her best interests to avoid those influences for one year.
Because this condition of probation was related to both
McDonald's unlawful conduct and her needs, it was within the
judge's power to impose this condition. Therefore, we need only
determine whether the judge, by imposing a greater sentence upon
McDonald based upon the content of her words, violated McDonald'sFirst Amendment rights.
We find the United States Supreme Court case of Wisconsin v.
Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436 (1993) controlling. In
Mitchell, the Court confronted the constitutionality of a
penalty-enhancing statute which provides for an increased penalty
if a person commits the underlying offense “because of” the race
of the victim. The Court began by noting that “sentencing judges
have considered a wide variety of factors in addition to evidence
bearing on guilt in determining what sentence to impose on a
convicted defendant” including their motive for committing the
crime. Id. at 485, 124 L. Ed. 2d at 443. Thereafter, the Court
noted that although a defendant's abstract beliefs, no matter how
obnoxious, cannot be considered, those beliefs can be permissibly
taken into account when they are relevant to underlying crime or
the weighing of aggravating or mitigating circumstances. Id. at
486, 124 L. Ed. 2d at 443. That is, the Court held that a judge
may consider a defendant's underlying motives and beliefs so long
as they are relevant to the proceedings.
In the case sub judice, the judge's consideration of
McDonald's words were directly relevant to the proceedings.
Specifically, the judge took McDonald's words into account only
to determine what factors influenced her delinquent conduct and
the best way to remove those factors from her life. Moreover,the judge sentenced McDonald differently not because his beliefs
about Charles Manson differed from hers, but rather because he
felt that she was too susceptible to the influences of
television. Indeed, it has not been argued nor has there been
any evidence that McDonald even believed in the teachings of
Charles Manson. Rather, it appears that she was emulating what
she observed on television and the judge was merely trying to
alleviate some of those potentially damaging influences. This is
evidenced by the fact that the judge's order in no way prohibits
McDonald from learning about Charles Manson or any other figure
through other means. Accordingly, this assignment of error is
rejected.
[2]McDonald also contends that the trial court erred in
ordering her to pay restitution because it failed to make
appropriate findings of fact. This Court has previously stated
that “[a]n order of restitution must be supported by appropriate
findings of fact, and those findings must in turn be supported by
some evidence in the record.” In Re Davis, 126 N.C. App. 64, 66
(1997). In the case sub judice, it is undisputed that the State
failed to provide any evidence about the monetary amount of
damages suffered by the boat house owner. The State's only
evidence regarding the extent of damage consisted of pictures of
the spray-painted walls. These pictures, however, did notprovide the trial court with factual support for its
determination that the boat house suffered six hundred dollars
damage. Indeed, it appears that the trial court looked at these
pictures and simply speculated as to the extent of damage.
Accordingly, because there is no factual support underlying the
trial court's restitution order, we must reverse this aspect of
its ruling.
Affirmed in part, reversed in part.
Judges GREENE and MARTIN concur.
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