In the Matter of: Minor, (03-368) 10/21/2003

Appeal by respondent from order entered 26 September 2002 by Judge Elizabeth D. Miller in District Court in Mecklenburg County. Heard in the Court of Appeals 6 October 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

Carlton, Rhodes & Carlton, by Gary C. Rhodes, for respondent- appellant.

HUDSON, Judge.

    Juvenile was adjudicated delinquent under a petition charging him and a co-defendant with the 12 January 2002 robbery of Juan Carlos Saldania Gonzales, in violation of N.C. Gen. Stat. § 14-87 (2001). The State's evidence included the testimony of an eyewitness who identified juvenile as an active participant in the assault on Gonzales, which occurred near a bus stop on Central Avenue in Charlotte, North Carolina. In his own testimony, juvenile admitted he was present during the incident, but claimed he had “just watched.” Judge Miller entered her disposition order on 26 September 2002, placing juvenile on house arrest and probation for a period of twelve months. Juvenile appeals.
    Initially, we consider juvenile's motion to deem timely filedboth the record on appeal and his appellant's brief. The record reflects that the district court filed an order for the preparation of a transcript on 25 October 2002, and delivered the order to the court reporter on 31 October 2002. The court reporter mailed the adjudication hearing transcript to the parties on 24 February 2003, well outside the sixty-day deadline imposed by N.C.R. App. P. 7(b)(1). Neither juvenile nor the court reporter sought an extension of time for delivery of the completed transcript pursuant to Rule 7(b) or Appellate Rule 27(c). Juvenile served the State with the proposed record on appeal on 28 February 2003. The State has not opposed juvenile's motion.
    “[W]hen a court reporter fails to deliver a transcript within the time allowed by the appellate rules, the better practice is that appellant request an extension of time from the appropriate court.” Harvey v. Stokes, 137 N.C. App. 119, 124, 527 S.E.2d 336, 339 (2000). However, “[i]f the court reporter fails to certify that the transcript has been delivered within the sixty-day period permitted by Appellate Rule 7(b), the thirty-five day period within which an appellant must serve the proposed record on appeal does not begin to run until the court reporter does certify delivery of the transcript.” Id. at 123, 527 S.E.2d at 338-39 (quoting Lockert v. Lockert, 116 N.C. App. 73, 446 S.E.2d 606, disc. review allowed, 338 N.C. 311, 450 S.E.2d 487, cert. allowed, 338 N.C. 311, 450 S.E.2d 487 (1994)). Here, juvenile served the proposed record on 28 February 2003, within four days of the delivery of the transcript by the court reporter. On 19 March 2003, the partiesagreed to the settled record on appeal, which was filed on 21 March 2003, within the period prescribed by Appellate Rule 11. Juvenile filed his brief to this Court eighteen days after the printed record was mailed to the parties. See N.C.R. App. P. 13(a)(1). Accordingly, we allow juvenile's motion and proceed to the merits of his appeal.
    Juvenile first contends the State's evidence was insufficient to support a finding that he participated in the robbery of Gonzales. At the conclusion of the State's evidence, Juvenile made a motion to dismiss, which the trial court denied. Juvenile then presented evidence but failed to renew his motion to dismiss.
    Pursuant to N.C. Gen. Stat. § 7B-2405(6) (2001), juveniles in delinquency proceedings are granted “[a]ll rights afforded adult offenders except the right to bail, the right of self-representation, and the right of trial by jury.” A juvenile is thus “entitled to have the evidence evaluated by the same standards as apply in criminal proceedings against adults.” In re Dulaney, 74 N.C. App. 587, 588, 328 S.E.2d 904, 906 (1985). Under N.C.R. App. P. 10(b)(3), “a motion to dismiss made at the close of the State's evidence is waived if the defendant presents evidence.” In re Davis, 126 N.C. App. 64, 66, 483 S.E.2d 440, 442 (1997). Having failed to renew his motion to dismiss at the conclusion of all the evidence, juvenile has waived appellate review of the sufficiency of the evidence. See id. (citing State v. Elliott, 69 N.C. App. 89, 316 S.E.2d 632, appeal dismissed and disc. review denied, 311 N.C. 765, 321 S.E.2d 148 (1984)).     Juvenile also argues that the trial court's findings do not support the adjudication of delinquency. On the issue of fact- finding, the juvenile code provides only that “[i]f the court finds that the allegations in the [delinquency] petition have been proved [beyond a reasonable doubt], the court shall so state.” N.C. Gen. Stat. § 7B-2411; see also N.C. Gen. Stat. § 7B-2409 (2001) (establishing “beyond a reasonable doubt” standard of proof in delinquency proceedings). “The statutory use of 'shall' is a mandate to trial judges requiring them to affirmatively state that the allegations of the juvenile petition are proved beyond a reasonable doubt.” In re Wade, 67 N.C. App. 708, 711, 313 S.E.2d 862, 864 (1984); accord In re Walker, 83 N.C. App. 46, 47, 348 S.E.2d 823, 824 (1986).
    In the instant case, the district court made the following findings “beyond a reasonable doubt: . . . that the juvenile committed the offense as alleged in the petition filed [3 April 2002] alleging common law robbery and is adjudicated delinquent.” The petition, in turn, alleged that juvenile and his co-defendant “unlawfully, willfully, and feloniously did steal, take, and carry way” certain personal property “from the person and presence of Juan Carlos Gonzale[s] by means of an assault upon him consisting of the forcible and violent taking of the property.” The district court made findings of ultimate fact sufficient to satisfy the relevant provisions of the Juvenile Code. See In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366 (2000); In re Fewell, 32 N.C. App. 295, 297, 231 S.E.2d 925, 927 (1977).     Affirmed.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

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