Appeal by juvenile from order dated 21 March 2001 by Judge
Karen A. Alexander in Carteret County District Court. Heard in the
Court of Appeals 20 August 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
James Q. Wallace, III for Juvenile Appellant.
GREENE, Judge.
Marcello Wilson (Juvenile) appeals from an order dated 21
March 2001 adjudicating him a delinquent juvenile on a petition
alleging simple affray in violation of N.C. Gen. Stat. § 14-33(a).
The incident alleged in the petition occurred on 20 October
2000, at the end of a physical education class at Broad Creek
Middle School. Juvenile was sitting in the school gymnasium when
he was approached by a classmate who pulled him off the bleachers.
An altercation between the two ensued. After the two separated,
Juvenile picked up a trumpet case in an attempt to pursue his
assailant but stopped at the instruction of his teacher.
On 21 March 2001, a hearing was held on the petition and at
that hearing, Juvenile denied the allegations.
(See footnote 1)
The case proceededto hearing and at the close of the State's evidence, Juvenile moved
to dismiss the petition. The motion was denied and evidence was
then presented on Juvenile's behalf and arguments were made by
counsel. The motion to dismiss was not renewed. At the close of
all evidence, Juvenile was “found to be responsible” and
adjudicated delinquent.
(See footnote 2)
_____________________________
The dispositive issue is whether there was substantial
evidence of the elements of the crime, simple affray, in light of
the Juvenile's claim of self-defense.
(See footnote 3)
Juvenile argues the trial court should have dismissed the
petition on the grounds his evidence of self-defense compels a
dismissal.
(See footnote 4)
We disagree.
An affray is a “fight between two or more persons in a publicplace so as to cause terror to the people.”
In re Drakeford, 32
N.C. App. 113, 118, 230 S.E.2d 779, 782 (1977) (citing
State v.
Huntly, 25 N.C. 418 (1843)). A claim of self-defense may be used
to defeat a charge of affray where the juvenile or defendant is
without fault in provoking, engaging in, or continuing a difficulty
with another.
See State v. Allred, 129 N.C. App. 232, 235, 498
S.E.2d 204, 206 (1998);
see also State v. Harrell, 107 N.C. 944,
946-7, 12 S.E. 439, 440 (1890).
Self-defense, when asserted in a criminal or a juvenile
delinquency case, cannot serve as a basis for dismissing the case.
Cf. State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455,
cert.
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000) (the trial court
must disregard defense evidence unless it supports the State's case
in considering a motion to dismiss). Evidence in support of the
defense is to be considered, along with the other evidence in the
case, to determine whether there is substantial evidence of each of
the elements of the crime or delinquent act.
See In re Heil, 145
N.C. App. 24, 28-29, 550 S.E.2d 815, 819 (2001). If there is
substantial evidence of each of the elements, the motion to dismiss
is properly denied.
Id.
at 28, 550 S.E.2d at 819. If the case is
being presented to a jury and there is substantial evidence of
self-defense, the trial court is required to instruct the jury on
self-defense.
State v. Hayes, 130 N.C. App. 154, 178, 502 S.E.2d
853, 869-70 (1998),
aff'd in part and dismissed in part, 350 N.C.
79, 511 S.E.2d 302 (1999). If the case does not involve a jury, as
in a delinquency case, the trial court is to consider the evidenceof self-defense and, if it finds the evidence persuasive, enter a
finding that the allegations of the petition are “not proved.”
See
N.C.G.S. § 7B-2411.
In this case, Juvenile does not contest that the State has
presented substantial evidence of each of the elements of simple
affray. Accordingly, the trial court did not err in failing to
dismiss the petition at the close of all the evidence.
Furthermore, as the credibility of the witnesses and the weight of
the evidence was for the trial court (sitting as a jury),
see In re
Simmons, 24 N.C. App. 28, 32-33, 210 S.E.2d 84, 87-88 (1974), the
trial court did not err in rejecting the evidence on self-defense
and adjudicating Juvenile a delinquent juvenile.
See Heil, 145
N.C. App. at 30, 522 S.E.2d at 820
.
Affirmed.
Judges TIMMONS-GOODSON and HUNTER concur.
Footnote: 1