NO. COA01-1147
Appeal by defendant from order entered 16 March 2001 by Judge
Elton G. Tucker in Pender County District Court. Heard in the
Court of Appeals 13 May 2002.
Attorney General Roy Cooper, by Assistant Attorney General J.
Bruce McKinney, for the State.
Kevin E. Heckart for respondent-appellant.
TYSON, Judge.
William S. (“respondent”) appeals from the trial court's order
adjudicating him a delinquent juvenile after the trial court found
him guilty of misdemeanor assault by pointing a gun.
I. Facts
The State's evidence tended to show that on the afternoon of
20 September 2000, after exiting a school bus near his residence,
respondent, a twelve-year-old boy, retrieved his toy broken pellet
pistol from the side of the road. It was disputed at the bench
trial whether or not defendant pointed the broken pellet pistol at
Arletha Batts (“Batts”), the school bus driver.
At the hearing Batts testified that she saw the pellet pistol,
it appeared to be real, respondent pointed it at the school bus,
and it scared her. Jaseeka Batts, the driver's daughter, was alsoriding the bus that day and testified that she observed respondent
pointing the pellet pistol toward the bus.
Respondent admitted to having retrieved the broken pellet
pistol from the side of the road, next to his mailbox, right after
exiting the school bus. Respondent had placed the pellet pistol on
the side of the road in some weeds earlier that morning prior to
entering the bus. Respondent testified that his brother gave him
the pellet pistol as a toy because it was broken. Respondent
testified that he did not point the pellet pistol at anyone.
Respondent's mother, Kay Simmons (“Simmons”), testified on her
son's behalf. Simmons testified that she spoke with respondent on
the evening after the incident, and that his account of the events
was consistent with his testimony at the hearing. On the evening
following the event, Simmons also spoke with Christina Gephardt
(“Gephardt”), another student who had exited the bus with
respondent. Based upon her conversation with Gephardt, and her
conversations with her son, Simmons stated that she believed “100
percent” of her son's story about the incident. Gephardt was
unable to be located to testify at the hearing. Respondent was
charged approximately six months after the event, and Gephardt had
moved. Simmons further testified that respondent used the broken
pellet pistol as a toy, and played with it around the house with
his other toys, “just being a 12 year old . . . .” She testified
that respondent “knew he would get in trouble if he took it to
school, so he hid it in the weeds where he hides his bike so that
he wouldn't get in trouble.” Respondent's brother, Justice Simmons, testified that he gave
the pellet pistol to his brother because it was broken. He also
testified that respondent's testimony at trial had not changed from
when respondent told him what had happened.
Respondent testified that he did not point the pellet pistol
at the school bus, and Ms. Batts and her daughter testified that he
did.
After denying respondent's motion to dismiss, the trial court
adjudicated respondent a delinquent juvenile for “unlawfully and
willfully” assaulting Ms. Batts by intentionally pointing a gun in
violation of G.S. § 14-34. The court placed respondent on
probation for six months. Respondent appeals.
II. Motion to Dismiss
Respondent contends that the trial court erred in denying his
motion to dismiss the charge against him arguing that there was
insufficient evidence to find him guilty of pointing the broken
pellet pistol at Batts. We agree.
It is well settled that a juvenile is “'entitled to have the
evidence evaluated by the same standards as apply in criminal
proceedings against adults.'”
In re Heil, 145 N.C. App. 24, 28,
550 S.E.2d 815, 819 (2001)(quoting
In re Dulaney, 74 N.C. App. 587,
588, 328 S.E.2d 904, 906 (1985)). Accordingly, when a juvenile
respondent “moves to dismiss, the trial court must determine
'whether there is substantial evidence (1) of each essential
element of the offense charged, . . . and (2) of [juvenile's] being
the perpetrator of such offense.'”
Id. (quoting
State v. Powell,299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted)).
Substantial evidence is that amount of evidence which a reasonable
mind “'might accept as adequate to support a conclusion.'”
State
v. Cody, 135 N.C. App. 722, 727, 522 S.E.2d 777, 780 (1999)(quoting
State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619 (1988)
(citations omitted)). We consider the evidence in the light most
favorable to the State, and the State is entitled to every
reasonable inference which may be drawn from the evidence.
State
v. Pugh, 138 N.C. App. 60, 67, 530 S.E.2d 328, 333 (2000).
Assault by pointing a gun requires the State to prove that:
(1) the accused pointed a gun or pistol at a person, (2) without
legal justification. N.C. Gen. Stat. § 14-34 (1999);
In re J.A.,
103 N.C. App. 720, 724, 407 S.E.2d 873, 875 (1991). This statute
is not a strict liability statute and our Courts have “stated that
the provisions of G.S. § 14-34 are subject to the qualification
that for a violation of the statute to occur, the pointing of a gun
must be intentional and without legal justification.”
State v.
Gullie, 96 N.C. App. 366, 368, 385 S.E.2d 556, 557 (1989); (citing
State v. Adams, 2 N.C. App. 282, 163 S.E.2d 1 (1968);
State v.
Thornton, 43 N.C. App. 564, 259 S.E.2d 381 (1979);
Lowe v. Dept. of
Motor Vehicles, 244 N.C. 353, 93 S.E.2d 448 (1956)).
“The gun must
be pointed intentionally and not accidentally.”
State v. Evans, 40
N.C. App. 730, 733, 253 S.E.2d 590, 592 (1979) (citing
State v.
Kluckhohn, 243 N.C. 306, 90 S.E.2d 768 (1956)). Our Court has
stated that “these cases also clearly stand for the principle that
the absence of legal justification is not an element of the offenseto be established by the State; rather, the presence of legal
justification is a defense which must arise upon the evidence.”
Gullie, 96 N.C. App. at 368, 385 S.E.2d at 557 (1989).
Assaults are “general intent crimes and thus require a showing that
defendant acted intentionally.”
State v. Elliott, 137 N.C. App.
282, 287-88, 528 S.E.2d 32, 36 (Lewis, J. dissenting) (citations
omitted),
rev. per curiam on dissenting opinion, 352 N.C. 663, 535
S.E.2d 32 (2000). Even though assaults “are [not] specific intent
crimes, that does not mean . . . that intent is not an element of
each offense . . . . [A]ssaults are still general intent crimes and
thus require a showing that defendant acted intentionally.”
Id.
“In prosecutions for 'general-intent offenses' the State need only
prove that the defendant intended to do the act which the law
declares criminal. '(I)ntent in the meaning of the criminal law is
present in all cases where the act is done voluntarily or willingly
. . . .'”
State v. Caddell, 287 N.C. 266, 296, 215 S.E.2d 348,
366-67 (1975) (quotation omitted).
Even though the evidence
shows that a defendant might actually, or accidentally, have
pointed a gun at someone, the offense has not occurred unless the
defendant
intended to point the gun.
State v. Kluckhohn, 243 N.C.
306, 310-11, 90 S.E.2d 768, 771 (1956) (emphasis added).
Here, Batts testified that she stopped the bus and respondent
exited. Ms. Batts testified that as she began backing the school
bus to exit the dead end street, she noticed respondent walk toward
the side of the road, and look in the tall grass. Batts testified
that a student yelled, “Ms. Batts, he has a gun.” Batts stoppedthe school bus, looked in respondent's direction, and testified
that respondent “was standing pointing -- with the gun pointed
toward the school bus, not toward the driver, the whole school bus
. . . .” Batts also testified that respondent was “not walking;
he's standing still with the gun in his hand,” and “he was standing
there with a gun pointing.” Batts' daughter testified that she
“turned around and I looked and I saw Billy pointing a gun at the
bus.” Batts also testified that “Billy has never really given
[her] any problems.” The uncontradicted testimony was that
respondent did not want to get in trouble so he placed his broken
pellet pistol on the side of the road that morning before entering
the bus to go to school. Defendant testified that he picked up his
broken toy pellet pistol and began walking home.
After thoroughly reviewing the entire record, the evidence
shows that respondent picked up his broken toy pellet pistol with
his hand, from the side of the road, was seen with the broken
pellet pistol in his hand, that the pellet pistol could have been
facing the direction of the school bus while respondent stood in
the street, and that respondent walked home. There is no evidence
that it was respondent's purpose or conscious object to point a
“gun” at a “person,” that the pellet pistol was pointed at any
particular person, or that the broken pellet pistol was pointed
specifically at Batts as charged and as found by the trial court.
The trial court erred by denying respondent's motion to
dismiss for insufficiency of the evidence. In light of our
holding, we do not reach respondent's other assignment of error.
The adjudication and disposition orders of the trial court are
reversed.
Reversed.
Judges GREENE and HUDSON concur.
Report per Rule 30(e)
*** Converted from WordPerfect ***