IN THE MATTER OF JESSICA RENEA HARTSOCK
Attorney General Roy Cooper, by Assistant Attorney General
Mary Penny Thompson, for the State.
Richard E. Jester, for juvenile-appellant.
CALABRIA, Judge.
On 29 December 2000, Jessica Renea Hartsock (“Jessica” or
“juvenile”) was adjudicated a delinquent juvenile. Jessica was
placed on probation, with conditions including cooperating with the
Step-One program and not violating any laws. In August 2001, a
petition was filed asserting that on 23 May 2001 she violated N.C.
Gen. Stat. § 90-95(a)(3) by possessing marijuana. In September
2001, a petition was filed asserting Jessica violated the terms of
her probation by not participating in the Step-One program and
violating N.C. Gen. Stat. § 90-95(a)(3).
On 26 October 2001, a hearing was held on the petitions.
Regarding the possession of marijuana, Judge Otis M. Oliver (“Judge
Oliver”) found as fact:
On May 23, 2001, the juvenile did have in her
possession and control one pocketbook which
she said was hers.
The court further finds that the pocketbook
did contain a controlled substance, to wit:
marijuana, as tested by SBI lab.
The juvenile did testify that she did not know
that the pocketbook contained marijuana, and
that the pocketbook belonged to her sister.
Based on these findings, the court adjudicated Jessica delinquent.
Regarding the failure to comply with Step One, the court, in a
separate adjudication, found the following facts:
The court finds that the juvenile is presently
under an order of Probation requiring her to
cooperate with recommendations of treatment or
counseling.
The juvenile has not complied with
recommendations of counselor, to wit: Step
One.
The juvenile has failed to attend requested
meetings/therapy sessions; she has tested
positive on drug screenings. The failure to
comply with terms and conditions are willful
and without lawful excuse. The juvenile is
under no disability at this time.
Based on these findings, the court adjudicated Jessica delinquent.
The court, in proceeding to the dispositional phase, entered an
order noting Jessica was adjudicated delinquent for the offense of
simple possession, but did not reference her failure to comply with
Step One. The court ordered Jessica to: (1) “cooperate with
placement in a residential treatment facility [i]f deemed necessary
by MAJORS counselor or Juvenile Court Counselor[;]” (2) cooperate
with placement in “an intensive substance abuse program MAJORS
program[;] (3) “be placed on intensive probation[;]” (4) “be placed
on Electronic House Arrest[;]” (5) “be confined on an intermittent
basis in an approved detention facility as follows: . . .[;] (6)“be placed on probation, under the supervision of a court
counselor, for 12 months[;]” and (7) “pay restitution in the amount
of $100. . . .” From the adjudication and disposition orders,
juvenile appeals.
Juvenile asserts the court erred by: (I) considering
irrelevant evidence; (II) adjudicating her a delinquent juvenile
for possession of marijuana where all the evidence demonstrated her
possession was not knowingly; and (III) delegating the court's
authority to place her in a residential treatment facility to the
MAJORS or juvenile court counselor. Juvenile also asserts: (IV)
the recordation requirements are insufficient to protect her
rights.
I. Consideration of Inadmissible Evidence
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).
Here, juvenile asserts the trial court erred by considering
irrelevant evidence that she attempted to assault an officer and
consistently failed drug screenings. Since we find juvenile has
failed to demonstrate prejudicial error, we do not address whether
the evidence was properly admitted.
“In a nonjury trial, if incompetent evidence is admitted and
there is no showing that the judge acted on it, the trial court is
presumed to have disregarded it.” In re Oghenekevebe, 123 N.C.App. 434, 438, 473 S.E.2d 393, 397 (1996). Juvenile argues that
when an objection to the evidence is made and overruled, the judge
has thereby determined the evidence competent and may be presumed
to have considered it. Juvenile cites no authority, and we find
none.
Generally, the effect of the presumption articulated in
Oghenekevebe is that the burden rests on the juvenile to rebut the
presumption that any incompetent evidence was disregarded and
demonstrate prejudice. See State v. Moore, 132 N.C. App. 197, 203,
511 S.E.2d 22, 26 (1999) (applying the presumption to an adult
defendant). This burden applies even where the evidence was
admitted over objection. Broughton v. Broughton, 58 N.C. App. 778,
785, 294 S.E.2d 772, 778 (1982) (noting the trial court's findings
of fact are presumed to be based only upon competent evidence
“'unless the record affirmatively discloses that the finding was
based, in part at least, on incompetent evidence heard over
objection.'” (quoting 1 Strong's N.C. Index 3d, Appeal and Error §
57.2 (1976)); Styron v. Supply Co., 6 N.C. App. 675, 171 S.E.2d 41
(1969) (applying the presumption despite the admission of the
evidence over objections by defendant).
In the case at bar, the burden was upon juvenile to
demonstrate the incompetent evidence was not disregarded and was
prejudicial. Neither the trial court's findings of fact, nor the
transcript reveal any indication the contested evidence was
considered. Moreover, juvenile has failed to demonstrate
prejudice. Accordingly, this assignment of error is overruled.II. Sufficiency of the Evidence
Juvenile asserts the trial court erred in finding she
knowingly possessed the marijuana because “[i]n this case there is
no evidence that Jessica knew that any marijuana was in her
borrowed purse.” In essence, the juvenile argues there is
insufficient evidence regarding the element of knowledge. See
State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985) (to
prove possession of a controlled substance, the State must show
defendant (1) possessed a controlled substance and (2) possessed
the substance knowingly).
“[J]uveniles 'may challenge the sufficiency of the evidence by
moving to dismiss the juvenile petition.'” Heil, 145 N.C. App. at
28, 550 S.E.2d at 819 (quoting In re Davis, 126 N.C. App. 64,
65-66, 483 S.E.2d 440, 441 (1997)). “However, if a defendant [or
juvenile] fails to move to dismiss the action. . . at the close of
all the evidence, he may not challenge on appeal the sufficiency of
the evidence to prove the crime charged.” N.C. R. App. 10(b)(3)
(2003). Since juvenile never moved to dismiss, this assignment of
error is overruled.
III. Delegation of Authority
The court ordered juvenile to “cooperate with placement in a
residential treatment facility [i]f deemed necessary by MAJORS
counselor or Juvenile Court Counselor.” (Emphasis added). Juvenile
asserts the court improperly delegated its authority to place her
in a residential treatment facility to the MAJORS counselor or
juvenile court counselor. The State asserts the court compliedwith the purpose of the Juvenile Code by only ordering placement in
a residential treatment facility when necessary, and the court
specifically tailored this treatment to the juvenile as
demonstrated by the predisposition report incorporated into the
order by the trial court. However, the predisposition report was
not incorporated into the record on appeal. The State cites the
purpose of the Juvenile Code, N.C. Gen. Stat. § 7B-100(4) as
support for their argument that the court utilized its discretion
properly. We disagree.
The Juvenile Code provides: “[t]he court exercising
jurisdiction over a juvenile who has been adjudicated delinquent
may use the following alternatives. . . (14) [o]rder the juvenile
to cooperate with placement in a residential treatment facility. .
. .” N.C. Gen. Stat. § 7B-2506(14) (2001). The statute
specifically provides the court with the power and discretion to
order appropriate dispositional alternatives. Unlike in In re
Bullabough, 89 N.C. App. 171, 181, 365 S.E.2d 642, 647 (1988),
wherein the Court considered former N.C. Gen. Stat. § 7A-573, which
explicitly permitted delegation of the court's power by
administrative order, N.C. Gen. Stat. § 7B-2506 does not state, or
even indicate, that the court may delegate its discretion. The
statute does not contemplate the court vesting its discretion in
another person or entity, therefore, the court, and the court
alone, must determine which dispositional alternatives to utilize
with each delinquent juvenile. Accordingly, we hold the trial
court improperly delegated its authority to “[o]rder the juvenileto cooperate with placement in a residential treatment facility.”
Since we find the statute controlling, we do not reach
constitutional arguments raised by juvenile.
We note, however, pursuant to N.C. Gen. Stat. § 7B-2506, a
judge could order certain dispositional alternatives apply upon the
happening of a condition, since the court, and not another person
or entity, would be exercising its discretion. The State asserts
the court placed such limitations on its order in the case at bar,
however, no such limitations appear in the order nor in any
attachments, and accordingly, the State's assertion is without
support.
Juvenile also asserted the court improperly delegated its
authority to place her in intermittent confinement, as provided by
N.C. Gen. Stat. § 7B-2506 (20). The court ordered juvenile “be
confined on an intermittent basis in an approved detention
facility. . . .” The statute expressly requires “[t]he timing of
this confinement shall be determined by the court in its
discretion[,]” and the form leaves space for instruction. N.C.
Gen. Stat. § 7B-2506 (20) (2001). The court neither delineated the
timing nor delegated its authority, rather the space for
instructions is blank. Accordingly, this portion of the order is
incomplete and has no effect. We note any delegation of authority
would have been contrary to the express language of our statute.
IV. Recordation of Juvenile Actions Juvenile asserts the recordation of juvenile proceedings on
four-track audio equipment is inadequate to protect juvenile
rights. We disagree.
Regarding recordation, our law provides:
[a]ll adjudicatory and dispositional hearings
and hearings on probable cause and transfer
to superior court shall be recorded by
stenographic notes or by electronic or
mechanical means. Records shall be reduced to
a written transcript only when timely notice
of appeal has been given. The court may order
that other hearings be recorded.
N.C. Gen. Stat. § 7B-2410 (2001). However, only “[w]here a trial
transcript is 'entirely inaccurate and inadequate,' precluding
formulation of an adequate record and thus preventing appropriate
appellate review” would a new trial be required. In re Lineberry,
___ N.C. App. ___, ___, 572 S.E.2d 229, 237 (12-3-2002), cert.
denied, 356 N.C. 672, ___ S.E.2d ___ (2003) (quoting State v.
Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984)). Where
“'the transcript, despite its imperfections, is not so inaccurate
as to prevent meaningful review by this Court[,]'” the assertion
that the recordation of juvenile court proceedings are inadequate
to protect juvenile's rights is properly overruled. Id., (quoting
State v. Hammonds, 141 N.C. App. 152, 168, 541 S.E.2d 166, 178
(2000), aff'd, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied,
536 U.S.907, 153 L. Ed. 2d 184 (2002)). We hold the transcript was
sufficient to provide for meaningful appellate review.
Affirmed in part, reversed in part.
Chief Judge EAGLES and Judge HUNTER concur.
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