IN THE MATTER OF
Wake County &nb
sp;
No. 93 J 66
BRYANT EDWARD WILLIAMS
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Peter Wood, for respondent-appellant.
BRYANT, Judge.
This is an appeal from a juvenile adjudication order finding
respondent responsible on two counts of assault on a government
employee, two counts of simple assault and one count of resisting,
delaying and obstructing a public officer.
The State's evidence tended to show the following. Respondent
was a detainee at Wake Juvenile Detention Center on 3 February
2001. When a fire broke out in a laundry room, the residents were
evacuated to the basketball court. At some point during the
evacuation, respondent and several other detainees were seen
punching and "stomping" Eric Hutchinson, another detainee.
Respondent then sought out David Inman, also a detainee.
Respondent punched and kicked Inman. When the director of theDetention Center, Donald Miles, learned of the fights, he and the
staff ordered the detainees inside to control the situation.
Respondent and other detainees refused to go to their rooms and
began to turn over desks and throw chairs. At that point, the
director grabbed his arm to return respondent to his room. The
Raleigh Police Department was called to assist in restraining
respondent and other detainees who refused to return to their
rooms. Respondent kicked the director in the chest and face as
four or five uniformed police officers arrived to handcuff him.
Respondent continued to resist, at one point spitting in the face
of one of the officers.
Respondent was eventually restrained and charged with two
counts of assault on a government employee, two counts of simple
assault and one count of resisting, delaying and obstructing a
public officer. Respondent was convicted of the same and now
appeals.
Respondent argues that the juvenile court committed plain
error by failing to dismiss the charges after a two-month recess.
Specifically, respondent argues that the memory of the attorneys
and judge are inherently unreliable and that this State, like a few
others, should "presume that a lengthy recess during a trial is an
abuse of discretion as a matter of law." We decline to do so and
affirm the decision of the juvenile court.
Respondent failed to object to the recess on 14 March 2001,
but did so once the hearing resumed on 30 April 2001. Our Rules of
Appellate Procedure provide that [i]n criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
error.
N.C. R. App. P. 10(c)(4). The "plain error" rule applies only to
the preservation of issues relating to jury instructions and the
admission of evidence. State v. Steen, 352 N.C. 227, 256, 536
S.E.2d 1, 18 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997
(2001). In this case, once respondent moved for dismissal, he did
so on the basis that the delay violated his due process rights
stating that it was impossible for anyone to remember the evidence
presented two months earlier. Not only was respondent's motion
untimely, it was also based on the plain error rule, which does not
apply to such a motion.
Even assuming that the motion was timely and proper, we find
respondent has shown no prejudice and therefore we find no error.
In In re T.C.S., ___ N.C. App. ___, 558 S.E.2d 251 (2002), this
Court upheld a three-month recess in a juvenile delinquency
proceeding, holding that the juvenile failed to show that he was
prejudiced by the delay. In the instant case, the State's evidence
tended to show that respondent assaulted two juvenile detainees at
the detention center, assaulted the director of the detention
center and a police officer who tried to help, and resisted the
officers' attempts to control him. In reviewing the transcript and
record, we find that the Juvenile Court judge had taken extensive
notes at the March 14 hearing which he referred to when the hearingcontinued on April 30. There is no evidence that the memory of the
judge was unreliable as to the prior testimony. "The trial court,
not the appellate court, weighs the credibility of evidence.
Therefore, '[w]here there is competent evidence in the record
supporting the court's findings, we presume that the court relied
upon it and disregarded the incompetent evidence.'" State v.
Coronel, 145 N.C. App. 237, 250, 550 S.E.2d 561, 570 (2001)
(citations omitted), review denied, 355 N.C. 217, 560 S.E.2d 144
(2002). We conclude that there is competent evidence in support of
the juvenile court's findings and hold that the court did not err
in denying respondent's motion to dismiss.
AFFIRMED.
Judges WALKER and McCULLOUGH concur.
Report per Rule 30(e).
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