NO. COA01-1265
Respondent appeals, bringing forward five assignments of
error. Respondent has failed to enumerate the corresponding
assignment of error immediately beneath each argument in his
appellate brief, as required by N.C.R. App. P. 28(b)(6). Although
this failure subjects his appeal to dismissal, as respondent's five
arguments correspond with five of his six assignments of error of
record, we exercise our discretion to review the merits of his
appeal under N.C.R. App. P. 2.
See State v. Gaither, 148 N.C. App.
534, 559 S.E.2d 212 (2002).
Respondent first argues the trial court did not have personal
jurisdiction over him with respect to the simple assault petition.
Respondent correctly notes that according to G.S. § 7B-1806, the
summons and petition must be “personally served upon the parent,
the guardian, or custodian and the juvenile not less than five days
prior to the date of the scheduled hearing.” N.C. Gen. Stat. § 7B-
1806 (2002). Respondent emphasizes it is undisputed that neitherhe nor a parent was served with the summons and notice of hearing
issued on 8 February 2001, and that the State did not make any
further attempts to serve respondent or his parents with the
assault petition.
However, respondent and his parents were present in the
courtroom during the hearing and did not object to the defect in
service. At the beginning of the proceedings, the district
attorney clearly stated respondent was in court “on two delinquency
petitions,” and proceeded to describe both charges, including that
one of the petitions alleged respondent was guilty of simple
assault for kicking and hitting Daniel. After describing both
petitions, respondent, through counsel, denied the allegations
contained in the “two petitions,” and proceeded to put on evidence
during the hearing.
Delinquency proceedings under the Juvenile Code are civil in
nature, and accordingly, “proceedings in juvenile matters are to be
governed by the Rules of Civil Procedure.”
Matter of Bullabough,
89 N.C. App. 171, 179, 365 S.E.2d 642, 646 (1988). In civil cases,
it is well-established that a court may not exercise jurisdiction
over a person without valid service of process.
Ryals v. Hall-Lane
Moving and Storage Co., Inc., 122 N.C. App. 242, 247, 468 S.E.2d
600, 604,
disc. review denied, 343 N.C. 514, 472 S.E.2d 19 (1996).
“However, a person may submit himself to the jurisdiction of thecourt, if he makes a general appearance, even if the court has not
already obtained jurisdiction over defendant by serving him with
process.”
Id.
An appearance constitutes a general
appearance if the defendant invokes the
judgment of the court on any matter other than
the question of personal jurisdiction. The
appearance must be for a purpose in the cause,
not a collateral purpose. The court will
examine whether the defendant asked for or
received some relief in the cause,
participated in some step taken therein, or
somehow became an actor in the cause. Our
courts have applied a very liberal
interpretation to the question of a general
appearance and almost anything other than a
challenge to personal jurisdiction or a
request for an extension of time will be
considered a general appearance.
Bullard v. Bader, 117 N.C. App. 299, 301, 450 S.E.2d 757, 759
(1994) (citations omitted) (holding defendant's action in
submitting information relevant to merits of case prior to
asserting lack of jurisdiction constituted general appearance).
Here, respondent's and his parents' presence in the courtroom
during the hearing on the simple assault petition, respondent's
denial of the allegations contained in that petition, and his
participation in the hearing on that petition without objection
constitute a general appearance for purposes of waiving any defect
in service. Accordingly, the trial court properly exercised
personal jurisdiction over respondent. Respondent next argues the trial court erred in failing to
dismiss the simple assault charge. He maintains the State failed
to prove the elements of simple assault by failing to show
respondent acted with malice, intent to harm, or that Daniel was in
reasonable fear of physical harm. While respondent moved to
dismiss the simple assault petition after the close of the State's
evidence, he failed to renew that motion following the close of all
evidence. N.C.R. App. P. 10(b)(3) provides in pertinent part that
a defendant who moves to dismiss a charge based on insufficiency of
the evidence after the close of the State's evidence waives the
benefit of that objection if, after the motion is denied, the
defendant presents his own evidence, and such waiver precludes him
from urging the denial of the motion as a ground for appeal. The
defendant may preserve that argument for appeal only by renewing
the motion at the close of all of the evidence. “However, if a
defendant fails to move to dismiss the action . . . at the close of
all the evidence, he may not challenge on appeal the sufficiency of
the evidence to prove the crime charged.” N.C.R. App. P. 10(b)(3).
Respondent here presented evidence following the close of the
State's case, but failed to renew his motion to dismiss following
the close of all evidence, and he therefore cannot assert the
denial of his motion as grounds for relief on appeal.
See Matter
of Davis, 126 N.C. App. 64, 66, 483 S.E.2d 440, 442 (1997)(appellate court will not entertain juvenile's argument that State
failed to prove charge where juvenile failed to renew motion to
dismiss at close of all evidence). We therefore do not address
this argument.
Third, respondent argues any act which he allegedly committed
was
de minimus and did not rise to the level of criminal activity,
but was “only normal boyhood behavior between two brothers.” In
support of this contention, respondent only cites provisions of the
Model Penal Code, which he concedes has not been adopted in North
Carolina and is therefore not binding on this Court. Nevertheless,
respondent urges us to hold that even if his acts constituted
assault under the law, such acts were on such a “small[] scale”
that the trial court's order should be vacated. However, North
Carolina does not recognize such a defense, and we decline to apply
it here. This argument is overruled.
Respondent next contends the trial court erred in allowing
Detective Beane to testify to statements respondent made to her
during her home visit where respondent was neither advised of his
constitutional rights nor knowingly and willingly waived those
rights. Respondent cites G.S. § 7B-2102, governing juvenile
interrogations, which provides:
(a) Any juvenile in custody must be advised
prior to questioning:
(1) That the juvenile has a right to remain
silent;
(2) That any statement the juvenile does make
can be and may be used against the juvenile;
(3) That the juvenile has a right to have a
parent, guardian, or custodian present during
questioning; and
(4) That the juvenile has a right to consult
with an attorney and that one will be
appointed for the juvenile if the juvenile is
not represented and wants representation.
N.C. Gen. Stat. § 7B-2101 (2002). It is clear from the wording of
the statute that a juvenile must be in “custody” before it becomes
necessary to inform him of his rights. This “custody” requirement
is consistent with the common law “
Miranda” requirements applied in
criminal cases.
See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d
694 (1966).
Our Supreme Court recently summarized the law with respect to
informing defendants of their juvenile rights and constitutional
rights under
Miranda.
See State v. Gaines, 345 N.C. 647, 483
S.E.2d 396,
cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997).
The Court observed that the requirement of being informed of such
rights only applies where a defendant is subject to “custodial
interrogation.”
Id. at 661, 483 S.E.2d at 404. “Custodial
interrogation '“mean[s] questioning initiated by law enforcement
officers after a person has been taken into custody or otherwisedeprived of his freedom of action in any significant way.”'”
Id.
at 661-62, 483 S.E.2d at 405 (citations omitted). One inquiry in
determining whether a person is in custody is “whether a reasonable
person in the suspect's position would feel free to leave.”
Id. at
662, 483 S.E.2d at 405. However, the definitive inquiry for the
appellate court, based on all of the circumstances surrounding the
interrogation, is “whether there was a formal arrest or a restraint
on freedom of movement of the degree associated with a formal
arrest.”
Id. (citing
Stansbury v. California, 511 U.S. 318, 128 L.
Ed. 2d 293 (1994) (
per curiam)). Although any interview of a
suspect will necessarily possess coercive aspects,
Miranda warnings
are not required simply because the questioned person is suspected
by the police of wrongdoing.
Id.
The trial court's finding that respondent was not in custody
when he made the statements to which Detective Beane testified is
supported by the evidence. The evidence establishes that Detective
Beane spoke to respondent, his mother, and Daniel in the living
room of their home as a result of an allegation made by Daniel. No
proceedings had been initiated against respondent, and the purpose
of Detective Beane's visit was solely to investigate the
allegation. Detective Beane testified that she prefaced her
interview with respondent by saying, “[y]ou don't have to talk to
me,” “I am not going to arrest you,” “I am not going to take youwith me,” and that she “joke[d]” with respondent about how he would
not be able to go with her and that he needed to stay at home with
his parents. Detective Beane testified she did not inform
respondent of his rights because respondent was not in custody.
Based on this evidence, and all circumstances surrounding
respondent's interview, we conclude respondent was not subject to
a restraint on his freedom of movement of the degree associated
with a formal arrest. Thus, respondent was not in custody for
purposes of being informed of his juvenile or
Miranda rights, and
the trial court correctly determined that there was no requirement
that defendant be informed of, or waive, such rights prior to the
interview.
In his final argument, respondent maintains the simple assault
petition was fatally defective because it did not allege a specific
date for the offense. Rather, the petition alleged the assault
occurred between 1 April 2000 and 15 July 2000. Respondent argues
this was insufficient to inform him of the conduct to which the
petition was addressed. We disagree.
To be valid, an indictment must allege either a designated
date
or a period of time during which the crime occurred.
State v.
Stewart, 353 N.C. 516, 546 S.E.2d 568 (2001).
Our Supreme Court
has held that the time period listed in an indictment is generally
not considered an essential element of the crime charged, and thus,a judgment should only be vacated for an error if time was of the
essence of the offense and the error or omission misled the
defendant to his prejudice.
State v. Osborne, 149 N.C. App. 235,
245-46, 562 S.E.2d 528, 536 (2002). The Supreme Court has further
determined that time is of the essence only where it “'“deprives a
defendant of an opportunity to adequately present his defense.”'”
Id. at 246, 562 S.E.2d at 536 (citations omitted). In order for
any error or omission in the time period to constitute error on
appeal, a defendant must affirmatively establish that he was
mislead as a result, or that he was hampered in the presentation of
his defense.
Id.
Here, time is not essential to the allegation of assault, and
respondent has failed to affirmatively establish that he was either
mislead as a result of the time period listed in the indictment, or
that he was prejudiced in the presentation of his defense; nor do
we discern any such prejudice from review of the transcript.
Moreover, we are unpersuaded by respondent's argument that the
listed time period was so vast and unspecific that it could subject
him to double jeopardy. Our courts have routinely upheld the use
of time periods in indictments which extend beyond that of the two
and one-half months listed in the indictment here.
See State v.
Blackmon, 130 N.C. App. 692, 697, 507 S.E.2d 42, 45-46 (rejecting
double jeopardy argument based on indictment alleging that between1 January and 12 September 1994 defendant engaged in sexual acts
and indecent liberties with minor victim; given that victim
testified some of alleged acts occurred when it was warm outside
and some when it was cold outside, indictment was sufficiently
specific),
cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998);
State
v. McKinney, 110 N.C. App. 365, 371, 430 S.E.2d 300, 303-04
(upholding indictment which listed two-year time frame for
occurrence of sexual offense),
disc. review and cert. denied, 334
N.C. 437, 433 S.E.2d 182 (1993).
The order of the trial court adjudicating respondent
delinquent based on his commission of the offense of simple assault
is affirmed.
Affirmed.
Judges TYSON and THOMAS concur.
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