Appeal by juvenile from order entered 22 January 2002 by Judge
M. Patricia DeVine in Orange County District Court. Heard in the
Court of Appeals 12 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa K. Bradley, for the State.
Susan J. Hall for juvenile appellant.
TIMMONS-GOODSON, Judge.
Kyle James Stone (“juvenile”) was adjudicated delinquent under
a petition charging him with communicating threats in violation of
North Carolina General Statutes § 14-277.1. The district court
placed him on twelve months' probation and ordered him kept in
secure custody pending his placement as a dependent juvenile
pursuant to North Carolina General Statutes § 7B-2506. Juvenile
filed timely notice of appeal.
Juvenile was charged with communicating a threat to Earnest
Price (“Price”), a teacher and athletics director at C.W. Stanford
Middle School in Hillsborough, North Carolina. Price testified
that on the morning of 5 December 2001, he saw juvenile in the
school cafeteria and reminded juvenile that he was supposed to
report to his core teacher's classroom. Price described juvenile'sresponse as follows:
. . . [H]e started using profanity and he said
he was sick and tired of this and “F” this.
And when I asked him to go to [class], he
started to walk toward the cafeteria doors and
he walked out one of the doors and he came
back in and he said, I'll kick your ass and he
pointed at me and then he walked out.
Having been involved in prior “altercations” during which juvenile
“kind of lost control[,]” Price believed that juvenile meant what
he said. On cross-examination, Price estimated that juvenile was
fifteen to twenty feet away when he pointed and made his
threatening statement. When asked whether he believed defendant
could have “kicked [his] ass[,]” Price replied, “I feared that he
might attempt it.” Price stated that he “believed that [juvenile]
would make an attempt to do what he said” and “would try to fight
[Price].” Price testified that he was thirty-eight years of age
and 6'1" tall. Juvenile, who was fifteen years of age at the time
of the alleged incident, offered no evidence.
The trial court found beyond a reasonable doubt that juvenile
had communicated a threat to Price as defined by North Carolina
General Statutes § 14-277.1. Juvenile appeals.
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In his first assignment of error, juvenile argues that the
State's evidence was insufficient to support the district court's
finding of delinquency. However, juvenile made no motion to
dismiss the petition at the hearing and has thus waived appellate
review of this issue.
In re Davis, 126 N.C. App. 64, 66, 483
S.E.2d 440, 441-42 (1997);
see N.C.R. App. P. 10(b)(3) (2001).
In his final assignment of error, juvenile contends that he
was denied effective assistance of counsel, because his attorney
failed to file a motion for discovery prior to the delinquency
hearing. As a result of this omission, juvenile avers he was
unable to introduce evidence of a prior inconsistent statement made
by Price, which was contained in a report prepared by juvenile's
court counselor. The report is included in the record on appeal.
It contains a summary of the court counselor's investigation of the
incident between juvenile and Price, including the following
passage:
Mr. Price also related that he and [juvenile]
had a prior conflict last fall where he and
[juvenile] got into a very heated argument
after a football game.
As a result of that
argument, Mr. Price stated he was unsure if
[juvenile] would attempt to try and carry out
his threat or not.
(emphasis added). Juvenile argues that Price's professed
uncertainty contradicts his hearing testimony that he believed
juvenile would carry out his threat. Because Price's belief of the
threat was an essential element of the charge against him,
see N.C.
Gen. Stat. § 14-277.1 (2001), juvenile asserts he would not have
been adjudicated delinquent had the court counselor's report been
introduced at the hearing.
A juvenile has a right to counsel at a delinquency proceeding.
See In re Garcia, 9 N.C. App. 691, 692, 177 S.E.2d 461, 462 (1970);
see also N.C. Gen. Stat. § 7B-802 (2001). A juvenile who alleges
ineffective assistance of counsel must meet the constitutional
standard applied in adult criminal proceedings as set forth in
State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248
(1985).
Under
Braswell, the juvenile must establish both (1) that
his attorney's performance fell below an objective standard of
reasonableness; and (2) that he suffered prejudice from counsel's
deficient performance.
Id.
(citing
Strickland v. Washington, 466
U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)). “The fact that
counsel made an error, even an unreasonable error, does not warrant
reversal . . . unless there is a reasonable probability that, but
for counsel's errors, there would have been a different result” at
the hearing.
Id. at 563, 324 S.E.2d at 248.
If the juvenile
cannot demonstrate the degree of prejudice required by
Braswell,
this Court need not separately assess the reasonableness of
counsel's performance.
See id. at 563, 324 S.E.2d at 249.
We find no reasonable probability of a different outcome had
the court counselor's report been introduced into evidence.
Price's statement that he was “unsure” if juvenile would carry out
the threat does not contradict his testimony that he believed
juvenile would do so. One can believe something to be true with
less than complete certainty. Moreover, the report explains
Price's uncertainty by reference to a previous “very heated
argument” with juvenile, suggesting his concern that juvenile would
act on the threat. Because the report did not tend to discredit
Price's sworn testimony, juvenile was not prejudiced by counsel's
alleged deficiency. Therefore, he cannot establish ineffective
assistance of counsel under
Braswell.
The record on appeal contains additional assignments of errornot addressed in juvenile's brief to this Court. Pursuant to North
Carolina Rule of Appellate Procedure 28(b)(6), they are deemed
abandoned.
See N.C.R. App. P. 28(b)(6) (2001).
Affirmed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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