IN THE MATTER OF:
Wake County
GONSALO MATTHEW GOMEZ No. 00 J 746
Attorney General Roy Cooper, by Assistant Attorney General
Brent D. Kiziah, for the State.
Miller & Shedor, PLLC, by Marty E. Miller, for the respondent-
appellant.
WALKER, Judge.
On 13 February 2001, a juvenile petition was filed charging
respondent with disorderly conduct in violation of N.C. Gen. Stat.
§ 14-288.4(a)(6)(2001). The matter was heard on 9 May 2001.
The State presented evidence at the hearing which tended to
show the following: On 2 February 2001, respondent was in an in
school suspension class (ISS) at Zebulon Middle School in Zebulon.
Gloria Sublett, the ISS coordinator, heard a noise which sounded
like something hitting respondent's desk. When Sublett reached
respondent's desk to investigate, she found the noise was made by
a skate key. She went to confiscate the object because skate
keys and skate plates were considered contraband in the classroom. Sublett testified that she took two skate plates from respondent's
desk and before she could explain to him that she would return it
at the end of the day, respondent lost it. Sublett explained
that respondent stood up from his desk and walked towards the
middle of the class and started spewing a lot of profanity.
Sublett asked respondent to take his seat but he continued
shouting profanity, told Sublett he was getting ready to leave,
and walked out of the classroom toward the main office. Sublett
then called the main office and reported respondent as skipping.
The entire incident lasted a little more than a minute.
Chris Bray, the school resource officer, was called by the
principal to assist him with respondent. As Bray walked toward the
main office, he could hear profanity coming from the office area.
Bray then walked into the office where he observed respondent and
helped to calm him.
On 9 May 2001, respondent was adjudicated a delinquent
juvenile for committing the offense of disorderly conduct. On the
same date, a disposition order was entered confining respondent on
an intermittent basis for fourteen twenty-four hour periods at the
discretion of the supervising court counselor. Respondent was also
ordered to comply with counseling. Respondent appeals.
Respondent first argues there was insufficient evidence to
sustain the adjudication. However, respondent did not move for a
dismissal at the close of the evidence. Thus, he is precluded from
raising this issue on appeal. In Re Clapp, 137 N.C. App. 14, 19,526 S.E.2d 689, 693 (2000); see also In re Davis, 126 N.C. App. 64,
66, 483 S.E.2d 440, 441-42 (1997); N.C.R. App. P. 10(b)(3)(2001).
We next consider whether the trial court applied the wrong
burden of proof. Respondent notes that the trial court found
respondent responsible. Respondent asserts that he was entitled
to have the evidence presented in their adjudicatory hearing
evaluated by the same standards as apply in criminal proceedings
against adults. In re Meaut, 51 N.C. App. 153, 155, 275 S.E.2d
200, 201-02 (1981). Thus, respondent argues that the trial court
should have determined whether all the elements of the offense
listed in the petition were proven beyond a reasonable doubt.
After careful review of the record, briefs and contentions of
the parties, we affirm. The adjudication order clearly states that
respondent was found delinquent beyond a reasonable doubt. See
In re Wade, 67 N.C. App. 708, 711, 313 S.E.2d 862, 864 (1984).
Accordingly, we conclude this assignment of error is without merit.
Respondent finally argues that the trial court did not have
jurisdiction to adjudicate him delinquent. Respondent states that
his case was originally set for hearing on 11 April 2001. However,
on that date, the trial court continued the case to 9 May 2001.
Respondent contends that no notice of the new court date was sent
to him nor to his parents. See N.C. Gen. Stat. § 7B-1807 (2001).
Nevertheless, respondent has not preserved this issue for appellate
review with an appropriate assignment of error. See N.C.R. App. P.
10(a)(scope of review is limited to assignments of error set out inthe record on appeal). Accordingly, we decline to address this
assignment of error as it was not properly preserved for review.
Affirmed.
Judges THOMAS and BIGGS concur.
Report per Rule 30(e).
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