An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-646


Filed: 6 April 2004

                                 Scotland County
                                No. 00 J 82B

    Appeal by juvenile from order entered 13 December 2002 by Judge William C. McIlwain in District Court, Scotland County District Court. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.

    Moshera H. Mohamed for juvenile appellant.

    WYNN, Judge.

    The issue before this Court is whether the trial court committed plain error by imposing a Level 3 disposition and commitment for juvenile appellant L. C. L. (“Juvenile”). We affirm the order of the trial court.     
    On 22 August 2002, Juvenile's court counselor filed a motion for review alleging that Juvenile violated her probation by leaving her therapeutic home on or about 16 August 2002 and not returning. The record shows that Juvenile has an extensive history in the juvenile courts, beginning at the age of thirteen. On 26 July 2000, she was adjudicated undisciplined. On 9 November 2000, she was adjudicated delinquent for possession of a weapon on school property and was placed on probation for one year. Juvenile wascontinued on probation on 20 April 2001 for assaulting a government official, and again on 14 January 2002 for simple assault. The former offense is classified as a Class A1 misdemeanor. N.C. Gen. Stat. § 14-33(c)(4) (2001). A Class A1 misdemeanor is classified as a serious offense. N.C. Gen. Stat. § 7B-2508(a)(2) (2001).
    After considering the evidence presented at the review hearing, the trial court found that Juvenile violated her probation by leaving her therapeutic home and not making her whereabouts known from August until 28 October 2002, when she was taken back into custody. The trial court ordered Level 3 disposition and committed Juvenile to the Department of Juvenile Justice and Delinquency Prevention for placement in a training school. Juvenile appealed.
    Juvenile asserts the trial court erred in finding that she violated her probation. Juvenile argues the trial court's decision contradicts the greater weight of the evidence, in that there is some evidence that the therapeutic parent ordered her to leave the home. We are not so persuaded.
    Juvenile has failed to file a transcript of the review hearing as part of the record on appeal, despite her stated intent to do so. Rule 9 of the Rules of Appellate Procedure requires that the record on appeal contain so much of the evidence, either in narrative form or in the verbatim transcript of the proceedings, as is necessary for an understanding of all errors assigned. N.C.R. App. P. 9(a)(1)(e). It is the duty of Juvenile to ensurethat the record is complete and in proper form. N.C.R. App. P. 9(c)(3)(b) (“appellant shall cause the settled, verbatim transcript to be filed, contemporaneously with the record on appeal, with the clerk of the appellate court in which the appeal is docketed”); State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983). Where such evidence is not included in the record, we must presume that the findings are supported by competent evidence, and such findings are conclusive on appeal. Nunnery v. Baucom, 135 N.C. App. 556, 561-62, 521 S.E.2d 479, 484 (1999). We must therefore presume that the trial court's finding that Juvenile violated her probation is supported by competent evidence.
    Further, the record on appeal supports the trial court's decision to impose Level 3 disposition and commitment. Under our Juvenile Code, a court having jurisdiction over a juvenile who has been adjudicated delinquent has several dispositional alternatives available, including placement of the juvenile on probation under the supervision of a juvenile court counselor as specified in N.C. Gen. Stat. § 7B-2510. N.C. Gen. Stat. § 7B-2506(8) (2001). If the court finds by the greater weight of the evidence that the juvenile has violated conditions of probation, it may continue or modify the original terms of probation, or it may order a new disposition at the next higher level on the disposition chart of N.C. Gen. Stat. § 7B-2508. See N.C. Gen. Stat. § 7B-2510(e) (2001). However, the court may not impose a Level 3 disposition, commitment to a youth development center, pursuant to N.C. Gen. Stat. § 7B-2508(e) for a violation of probation by a juvenile adjudicated delinquent for anoffense classified as minor under N.C. Gen. Stat. § 7B-2508(a)(3). See N.C. Gen. Stat. § 7B-2510(f) (2001). A minor offense is a Class 1, 2 or 3 misdemeanor. See N.C. Gen. Stat. § 7B-2508(a)(3) (2001).
    Prior to her Level 3 disposition, Juvenile was on probation for assaulting a government official. Because Juvenile's actions constituted a serious rather than a minor offense, the trial court had authority to order Level 3 disposition. See N.C. Gen. Stat. § 14-33(c)(4); N.C. Gen. Stat. § 7B-2508(a)(2). In making its findings of fact, the trial court determined that whether or not the therapeutic parent ordered Juvenile to leave did not excuse Juvenile's failures to notify anyone of her whereabouts or to obtain authorization to live in another home. The trial court noted that Juvenile had placements in at least five homes or care facilities and that Juvenile repeatedly ran away from the placements. The trial court also noted the repeat offenses after Juvenile was placed on probation. In addition, the court found in the dispositional order that Juvenile last attended school on 29 August 2002 and that Juvenile dropped out of school. Juvenile does not contest any of these findings. We conclude the trial court properly imposed Level 3 disposition and commitment.
    The order of the trial court is,
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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