An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-522


Filed: 3 June 2003

IN THE MATTER OF:                     Orange County
KYLE JAMES STONE                    No. 99 J 74

    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.


    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.


    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 inState 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).
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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