IN THE MATTER OF
JOSHUA DAVID ANDERSON Alamance County
No. 99 J 50
Attorney General Roy Cooper, by Special Deputy Attorney
General John R. Corne, for the State.
Gilda C. Rodriguez for juvenile-respondent.
McGEE, Judge.
In July 2001, a juvenile petition was filed against respondent
Joshua David Anderson (age 14) charging him with felonious
breaking and entering and felonious larceny. The petition alleged
respondent "did unlawfully, willfully and feloniously break and
enter a building occupied by James Hayes used as a house located at
5678 Preacher Hayes Road[,] Mebane, NC 27302 with the intent to
commit a felony or larceny" and "take and carry away two JVC
stereos, $40 cash, two jackets, two t-shirts the personal property
of James Hayes having a value of $720.00 pursuant to the commission
of the felonious breaking and entering described in Count I[.]"
The "Incident/Investigation Report" upon which the petition was
based, however, showed that someone had broken into a mobile homeat 5632 Preacher Hayes Road where Chrisanto Lopez was living and
had taken some of Lopez's personal belongings. After holding a
hearing on the petition, the trial court entered an order on 9
August 2001 dismissing the petition. The trial court found the
petition was incorrect in that "[b]ased on the evidence presented
. . . the petition regarding Mr. Hayes is the wrong address and the
wrong owner of the personal property. Everything described was as
something else than what was proved."
The same day the trial court entered its order, a new petition
was filed alleging respondent "did unlawfully, willfully and
feloniously break and enter a building occupied by Chrisanto Lopez
and owned by William Henry Hayes used as a house for temporary farm
workers located at or across from 5632 Preacher Hayes Rd.[,]
Mebane, NC 27302 with the intent to commit a felony or larceny" and
"take and carry away two JVC stereos, $40 in change, two jackets,
two t-shirts the personal property of Chrisanto Lopez having a
value of $720.00 pursuant to the commission of the felonious
breaking and entering described in Count I[.]" The new petition
also charged respondent with felonious possession of stolen goods.
Respondent moved to dismiss the new petition on the grounds of
double jeopardy.
A hearing on the new petition was held on 13 September 2001.
The State offered testimony from James Hayes, Lopez, and Deputy
Sheriff Michael Williams of the Alamance County Sheriff's
Department. Respondent testified on his own behalf. On 23 October
2001, the trial court entered an order finding: 3. At the close of the State's evidence the
Court denied the respondent's motion to
dismiss.
4. Based on the evidence presented, the
Court dismissed the petition alleging
[felonious] possession of stolen property
and does find the allegations of the
remaining petition[] . . . to be true
beyond a reasonable doubt.
The trial court concluded respondent was a delinquent juvenile and
ordered "respondent be committed to the Department of Juvenile
Justice and Delinquency Prevention for placement in one of its
Youth Academies for an indefinite commitment of at least 6 months
and not to exceed his eighteenth birthday." Respondent appeals.
Respondent juvenile argues the subsequent petition twice put
him in jeopardy for the same offense. We disagree.
"The test of former jeopardy is not whether respondent has
been tried for the same act, but whether he has been put in
jeopardy for the same offense." In re Drakeford, 32 N.C. App. 113,
118, 230 S.E.2d 779, 782 (1977). "The offenses must be the same
both in fact and in law." Id.
"If evidence in support of the facts alleged
in the second indictment would be sufficient
to sustain a conviction under the first
indictment, jeopardy attaches, otherwise not.
However, if proof of an additional fact is
required in the one prosecution, which is not
required in the other, even though some of the
same acts must be proved in the trial of each,
the offenses are not the same, and the plea of
former jeopardy cannot be sustained."
State v. Cameron, 283 N.C. 191, 198, 195 S.E.2d 481, 486 (1973)
(quoting 2 Strong, N.C. Index 2d, Criminal Law § 26, pp. 517-18).
In the case before us, the State indicted respondent in twoseparate indictments, each charging him with breaking and entering.
While the first indictment alleged respondent entered a building
occupied by James Hayes and took the personal property of James
Hayes, the second indictment alleged respondent entered a building
occupied by Lopez and took the personal property of Lopez.
Respondent concedes that "[t]he petitions [] are not the same in
fact[,]" but asserts that "the prosecution's neglect in not
discovering the obvious defect in the first petition and allowing
the matter to proceed to an adjudicatory hearing warrants a closer
examination of the application of double jeopardy to this case."
While we believe the better practice would have been for the State
to have amended its original petition to correspond with the facts
set out in the "Incident/Investigation Report," the trial court in
this instance committed no prejudicial error in adjudicating
respondent delinquent under the 9 August 2001 petition. We
conclude that respondent was not twice put in jeopardy for the same
offense and that the trial court properly denied dismissal of the
petition.
Respondent juvenile also contends that the trial court erred
in adjudicating him delinquent because "there was insufficient
evidence to show beyond a reasonable doubt that the juvenile was
responsible for the felonious breaking and entering of Chrisanto
Lopez's home." The State counters that respondent juvenile is
precluded from raising this issue on appeal since he did not move
to dismiss the petition at the close of the evidence during the
adjudicatory hearing. N.C.R. App. P. 10(b)(3) states that a motion to dismiss made
at the close of the State's evidence is waived if the defendant
presents evidence, and a defendant must renew his motion to dismiss
at the close of all the evidence in order to challenge the
sufficiency of the evidence on appeal. N.C.R. App. P. 10(b)(3).
Our Court held in In re Davis, 126 N.C. App. 64, 483 S.E.2d 440
(1997), that the respondent juveniles were precluded from
challenging the sufficiency of the evidence presented during a
juvenile delinquency proceeding since they failed to move for a
dismissal of the petitions at trial pursuant to N.C.R. App. P.
10(b)(3). See also State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368
(1988). Because respondent presented evidence and failed to move
for a dismissal at the close of the evidence, he is precluded from
raising this issue on appeal.
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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