Appeal by juvenile from order entered 27 November 2000 by
Judge Craig Croom in Wake County District Court. Heard in the
Court of Appeals 13 February 2002.
Attorney General Roy A. Cooper, by Assistant Attorney General
Diane W. Stevens, for the State.
Victor N. Meir for juvenile-appellant.
TIMMONS-GOODSON, Judge.
Juvenile appeals an order adjudicating him delinquent and
placing him on supervised probation. For the reasons discussed
herein, we affirm the delinquency adjudication.
The evidence presented at trial by the State tended to show
the following: Juvenile was a nine-year-old student at Lead Mine
Elementary School in Wake County. On 21 December 2000, Dr. Gregory
Decker (“Principal Decker”), the principal of Lead Mine Elementary,
received information from juvenile's teacher that juvenile was
missing from the classroom. Principal Decker located juvenile in
the corridor near the main office. He asked juvenile to accompany
him to the office. Juvenile turned away and began walking down the
corridor, towards the exit door. As juvenile began to walk through
the door, Principal Decker again, asked juvenile to accompany him
to the office. Principal Decker then informed juvenile that if
juvenile continued to walk through the exit door, he would have to
physically carry him to the office. Juvenile continued through thedoor, at which time Principal Decker lifted juvenile, “cradled”
him, and carried him to the office. While carrying juvenile to the
office, juvenile struck Principal Decker with his fists on the back
four times. As Principal Decker reached the office doorway,
juvenile grabbed the door post to prevent Principal Decker from
entering. He then scratched Principal Decker's hand with his
fingernails. After this incident occurred, Principal Decker
notified juvenile's parents.
On 18 February 2000, the State filed a juvenile petition
alleging that juvenile committed the offense of assault on a
government employee in violation of N.C. Gen. Stat. § 14-33(c)(4).
On 7 March 2000, counsel for juvenile filed a motion pursuant to
N.C. Gen. Stat. § 15A-1001 alleging that juvenile was incapable of
proceeding to trial due to his general “lack of maturity” and
inability to grasp court matters. Pursuant to the motion, the
court ordered an evaluation of juvenile at Dorothea Dix Hospital to
determine whether juvenile possessed the requisite capacity to
proceed to trial. According to the evaluation by Dr. Manuel
Versola, juvenile was found incapable of proceeding to trial.
Pursuant to this report by Dorothea Dix Hospital, the State moved
on 12 July 2000 for a competency hearing. On 20 September 2000,
Judge Robert B. Rader found juvenile competent to stand trial.
Juvenile then moved to dismiss the petition on the grounds that
N.C. Gen. Stat. § 15A-1001 as applied to juvenile was
unconstitutional. In an order entered 14 November 2000, the court
denied the motion and the case proceeded to trial. On 27 November 2000, the trial court adjudicated juvenile
delinquent for assault on a government employee. Following the
adjudication, a dispositional order was entered placing juvenile on
supervised probation for six months. Juvenile appeals.
In his first two assignments of error, juvenile contends that
(1) there was insufficient evidence to support the trial court's
conclusion that juvenile was capable of proceeding to trial; (2)
the trial court erred by failing to conclude that the competency
statutes, as applied to juvenile, violate the United States and
North Carolina Constitutions.
As to juvenile's first assignment of error, the record
reflects that on 7 March 2000, counsel for juvenile filed a motion
alleging incapacity to proceed and an affidavit in support of the
motion. After a hearing on 20 September 2000, Judge Rader found
juvenile competent to proceed to trial. There is nothing in the
record or transcript to suggest that juvenile, at any time, made
any objections to the rulings of the trial court regarding
juvenile's capacity to proceed at the 20 September 2000 hearing or
the adjudication hearing on 20 November 2000. Thus juvenile has
waived this argument for appeal. Because the competency issue was
not preserved for appeal, we may review it only for plain error.
See State v. Flippen, 349 N.C. 264, 276, 506 S.E.2d 702, 709
(1998),
cert. denied, 526 U.S. 1135, 143 L. Ed. 2d 1015 (1999).
However, juvenile has also waived plain error review by “failing to
allege in his assignment of error that the trial court committedplain error.”
Id.;
see also N.C.R. App. P. 10 (c)(4)(2002).
Accordingly, we do not address juvenile's first assignment of
error.
Similarly, as to juvenile's second assignment of error, the
procedural history reveals that on 13 November 2000, counsel for
juvenile moved to dismiss the delinquency petition on the grounds
that N.C. Gen. Stat. § 15A-1001 was unconstitutional as applied to
juvenile. On 14 November 2000, the trial court denied the motion.
Again, the record does not reflect that objections were raised and
therefore, this assignment of error is not preserved for appellate
review. Due to juvenile's failure to properly preserve his
constitutional arguments, we do not address juvenile's assignment
of error.
See N.C.R. App. P. Rule 10 (c)(4)(2002).
In his last assignment of error, juvenile contends that the
trial court erred by not “considering” the issue of self-defense.
While juvenile did not contest at trial the sufficiency of the
evidence, he now asserts that the trial court should have found
from the evidence that he acted in self-defense. We disagree.
“The theory of self-defense entitles an individual to use
'such force as is necessary or apparently necessary to save himself
from death or great bodily harm . . . A person may exercise such
force if he believes it to be necessary and has reasonable grounds
for such belief.'”
State v. Moore, 111 N.C. App. 649, 653, 432
S.E.2d 887, 889 (1993)(quoting
State v. Marsh, 293 N.C. 353, 354,
237 S.E.2d 745, 747 (1977)). Self-defense further excuses a
defendant's assault of another, “'even though he is not . . . putin actual or apparent danger of death or great bodily harm.'”
State v. Hayes, 130 N.C. App. 154, 179, 502 S.E.2d 853, 870
(1998)(quoting
State v. Anderson, 230 N.C. 54, 56, 51 S.E.2d 895,
897 (1949)),
affirmed in part, dismissed in part, 350 N.C. 79, 511
S.E.2d 302 (1999). Thus,
“If one is without fault in provoking,
engaging in, or continuing a difficulty with
another, he is privileged by the law of self-
defense to use such force against the other as
is actually or reasonably necessary under the
circumstances to protect himself from bodily
injury or offensive physical contact at the
hands of the other . . . .”
Id. (quoting
Anderson, 230 N.C. at 56, 51 S.E.2d at 897).
Therefore, to prevail on a self-defense claim, juvenile must show
that he was without fault in “provoking, engaging in, or continuing
a difficulty with another.”
In the instant case, the evidence tends to show that at the
time Principal Decker apprehended juvenile, juvenile was exiting
the school premises. Principal Decker warned him at least twice
that he was not to exit the building. N.C. Gen. Stat. § 115C-
288(e)(2001), which outlines the duties and responsibilities of a
principal, provides that “[t]he principal shall have [the]
authority to exercise discipline over the [students] of the school
. . . . [and] shall use reasonable force to discipline students[.]”
In the unique school environment, “officials
must be able to 'move
quickly when dealing with immediate threats to a school's proper
educational environment and student safety.'”
In Re D.D., 146
N.C. App. 309, 316, 554 S.E.2d 346, 351,
disc. review denied, 354
N.C. 572, 558 S.E.2d 867 (2001)(citations omitted)(alteration inoriginal). Clearly, the juvenile in failing to heed Principal
Decker's warnings not to exit the building, “engaged in and
continued a difficulty” with Principal Decker that required the
principal to undertake some reasonable force to protect juvenile's
safety and to prevent juvenile from leaving the school premises.
Therefore, under the facts of this case, juvenile's self-defense
claim must fail.
Affirmed.
Judges WYNN and TYSON concur.
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