Appeal by respondent from orders entered 13 November 2002 by
Judge Frederick B. Wilkins, Jr. in District Court, Rockingham
County. Heard in the Court of Appeals 21 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Jane T. Hautin, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for respondent-appellant.
McGEE, Judge.
T.P. (respondent), a juvenile, appeals adjudication and
disposition orders filed 13 November 2002 in which the trial court
found that in late May 2002 respondent did (1) break and enter a
residence at 152 Southfork Drive (152 Southfork) in Reidsville,
North Carolina in violation of N.C. Gen. Stat. § 14-54(b) and (2)
break and enter, (3) commit felonious larceny, and (4) injure real
property at 158 Southfork Drive (158 Southfork) in violation of
N.C. Gen. Stat. §§ 14-54(a), 14-72(b)(2), and 14-127. The trial
court entered a Level I disposition, sentencing respondent to (1)
six months of probation, (2) payment of $250 in restitution to the
resident of 152 Southfork, and (3) twelve hours of community
service.
Respondent filed a motion for appropriate relief (MAR) on 25March 2003 regarding the misdemeanor breaking and entering of 152
Southfork. The State's evidence consisted of the written statement
of a co-respondent who did not testify at the adjudication hearing.
The trial court found that, based on the exclusion of the statement
of the co-respondent, the State had failed to prove respondent
guilty beyond a reasonable doubt. The trial court subsequently
struck the adjudication of delinquency as to the alleged breaking
and entering of 152 Southfork and entered a finding of not guilty
as to that charge. However, after granting the MAR, the trial
court did not modify the disposition order in which all four
offenses had been consolidated. Respondent appeals.
The State's evidence tended to show that on 27 May 2002, at
approximately 3:10 p.m., Tammy Tafer (Tafer) arrived at her
residence at 152 Southfork and found that a portion of a gallon of
tea was missing and that the back door of her home was open. She
also noted the presence of bottle rockets, a lighter, and a burn
mark on her kitchen counter. The linoleum floor in the kitchen had
also been damaged. Detective Perry Brookshire (Detective
Brookshire) of the Rockingham County Sheriff's Office investigated
the break-in of Tafer's residence. He interviewed J.M., a juvenile
friend of respondent, on 31 May 2002. At the hearing, Detective
Brookshire testified as to J.M.'s account of respondent's
participation in the breaking and entering of 152 Southfork. J.M.,
a co-respondent, did not testify at the hearing.
Don Cain (Cain), who lived at 159 Southfork Drive, testified
that on 28 May 2002 he heard the sound of glass breaking outsidehis trailer and saw the glass being knocked out of the windows of
158 Southfork. Tosha Crawford (Crawford) lived at 158 Southfork
but was not home at the time. Cain further testified that he
called the police and shortly thereafter, saw J.M. and J.E.,
another juvenile, emerge from behind 158 Southfork. They were
carrying a stick, a hammer, a butcher knife, a pair of gloves, and
a light bulb. Cain stopped J.M. and J.E. and advised them to wait
for the police to arrive.
Crawford did not identify any specific item taken from her
residence, but did note that several windows had been broken,
blinds removed, and curtains torn down. At the hearing, Cain
identified J.M. and J.E. as the perpetrators and said he did not
recall seeing respondent.
Deputy Sheriff Vance Southern (Deputy Southern) of the
Rockingham County Sheriff's Department responded to Cain's 911
call. Deputy Southern testified that, upon his arrival on the
scene, Cain informed him he had seen J.M. and respondent exit from
behind 158 Southfork. Deputy Southern testified that J.M. and
respondent were present when he arrived.
Detective Tim Newman (Detective Newman) of the Rockingham
County Sheriff's Department testified that he spoke with Deputy
Southern and Cain at the crime scene. Detective Newman thereafter
interviewed J.M. and respondent at the sheriff's department. J.M.
admitted that he and respondent entered 158 Southfork hoping to
find water guns; that he witnessed respondent breaking a window;
that he also broke a window; that he and respondent left 158Southfork with a lightbulb; and that they encountered Cain as they
were leaving. Respondent told Detective Newman that he entered the
trailer behind J.M. in order to retrieve a lightbulb.
We first note that respondent has failed to comply with the
North Carolina Rules of Appellate Procedure. Respondent's
assignments of error numbers two, three, and four are insufficient
because he neglects to direct "the attention of the appellate court
to the particular error about which the question is made, with
clear and specific record or transcript references." N.C.R. App.
P. 10(c)(1). In the record, respondent fails to provide any record
or transcript reference as to his assignments of error; instead, he
cites only to the page where his assignments of error are listed in
his brief. "The Rules of Appellate Procedure are mandatory and
failure to follow the rules subjects an appeal to dismissal."
Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68
(1984). Nonetheless, in accordance with N.C.R. App. P. 2, we
elect to review the merits of respondent's arguments.
Respondent first argues that the trial court erred when it
failed to amend its order directing him to pay restitution after it
vacated the related delinquency adjudication for the breaking and
entering of 152 Southfork. The State concedes, and this Court
agrees, that the portion of the disposition order relating to the
payment of restitution to the owner of 152 Southfork must be
vacated since the trial court struck the adjudication of
delinquency based on the underlying offense.
Respondent next argues that the trial court committedreversible error when it failed to vacate the disposition order in
its entirety when (a) four separate offenses had been consolidated
in the order and (b) the breaking and entering of 152 Southfork had
been vacated by the trial court.
Respondent relies on this Court's decision in
State v. Gilley
to support his request that his case be remanded to the trial court
for a new "sentencing" hearing.
Gilley, 135 N.C. App. 519, 522
S.E.2d 111 (1999),
cert. denied , 353 N.C. 528, 549 S.E.2d 860
(2001). In
Gilley, our Court remanded the case to the trial court
for re-sentencing after we determined that one conviction must be
vacated and that the trial court had consolidated numerous
convictions for sentencing.
Id. at 530, 522 S.E.2d at 118.
Our
Supreme Court has stated that an appellate court cannot "assume
that the trial court's consideration of two offenses, as opposed to
one, had no affect [sic] on the sentence imposed."
State v. Brown,
350 N.C. 193, 213, 513 S.E.2d 57, 70 (1999).
In the present case
, the trial court determined that
respondent had not been previously adjudicated as delinquent, and
therefore he had a low delinquency history level.
See N.C. Gen.
Stat. § 7B-2507 (2003). A single Class F through I felony offense
is sufficient to categorize a juvenile with a low delinquency
history at either Level 1 or Level 2. N.C. Gen. Stat. § 7B-2508
(2003). The trial court found that respondent had committed two
such felonies, and the trial court properly classified respondent
at the lowest Level 1 for dispositional purposes. In addition to
the order to pay restitution, which we vacate today, the trialcourt placed respondent on six months of probation and ordered him
to perform twelve hours of community service.
See N.C. Gen. Stat.
§ 7B-2506 (2003). These are among the most lenient of
dispositional alternatives available for delinquent juveniles.
We note that our Courts and the statutory scheme have
recognized fundamental distinctions between criminal trials and
juvenile proceedings. Although the purpose of the Juvenile Court
Act "'is not for the punishment of offenders but for the salvation
of children,'"
In re Allison, 143 N.C. App. 586, 595, 547 S.E.2d
169, 175 (2001)(citations omitted), we believe that the decisions
of our appellate courts in which we have remanded a case for re-
sentencing for non-vacated convictions are instructive. Because
the disposition order was not modified by the trial court after a
favorable determination of respondent's MAR, we cannot discern
whether the trial court would have altered the order other than
simply vacating the order for restitution. Although this case,
upon remand, may result in the same disposition, absent
consideration of the misdemeanor conviction for breaking and
entering, we must remand it nonetheless for new disposition.
Gilley,
135 N.C. App. at 530, 522 S.E.2d at 118;
Brown, 350 N.C. at
213-14, 513 S.E.2d at 70.
Respondent lastly argues that the evidence presented at trial
was insufficient to support the trial court's finding that he
willfully and wantonly injured the real property located at 158
Southfork by breaking a window. [R. 12] Respondent contends the
only evidence presented at trial that he violated N.C. Gen. Stat.§ 14-127 was the inadmissible hearsay statement of J.M., his co-
respondent. [T. 34]
By statute, juveniles subject to a delinquency adjudication
are afforded many of the same rights as adult defendants in
criminal proceedings. For example, allegations in a delinquency
petition must be proven "beyond a reasonable doubt." N.C. Gen.
Stat. § 7B-2409 (2003). Also, a juvenile "'may challenge the
sufficiency of the evidence by moving to dismiss the juvenile
petition.'"
In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819
(2001) (quoting
In re Davis, 126 N.C. App. 64, 65-66, 483 S.E.2d
440, 441 (1997)). In order to withstand a motion to dismiss, the
trial court must determine that there is substantial evidence of
each of the material elements of the offense charged
and that the
juvenile was the perpetrator of the offense.
Heil, 145 N.C. App.
at 28, 550 S.E.2d at 819.
All evidence is to be viewed in the light most favorable to
the State with every reasonable inference that may be drawn
therefrom.
In re Pineault, 152 N.C. App. 196, 198, 566 S.E.2d 854,
856,
disc. review denied, 356 N.C. 302, 570 S.E.2d 728 (2002). If
the evidence raises mere "'suspicion or conjecture as to either the
commission of the offense or the identity of the [juvenile] as the
perpetrator of it, the motion should be allowed.'"
Heil, 145 N.C.
App. at 28, 550 S.E.2d at 819 (citations omitted). However,
dismissal is not warranted on the ground that the only evidence is
circumstantial.
Id. "Where the evidence is circumstantial, 'the
court must consider whether a reasonable inference of [juvenile's]guilt may be drawn from the circumstances.'"
Id. at 29, 550 S.E.2d
at 819 (quoting
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914,
919 (1993)).
Respondent argues that the only evidence tending to support
the trial court's finding was the out-of-court statement given by
J.M. and recited by Detective Newman at trial. The record shows
that J.M.'s statement implicating respondent in the damage to 158
Southfork was stricken by the trial court on the ground that J.M.
did not testify at the hearing.
(See footnote 1)
Thus, the trial court did not
consider J.M.'s statement in rendering its decision.
The evidence regarding respondent's actions is circumstantial,
but is sufficient to support the trial court's conclusion that
respondent broke the window at 158 Southfork. Deputy Southern and
Detective Newman testified at the hearing that respondent and J.M.
were the juveniles detained by Cain at the crime scene.
Furthermore, Detective Newman, who interviewed respondent at the
Sheriff's Department, read respondent's statement at trial
regarding the incident. Respondent admitted to Detective Newman
that he followed J.M. into 158 Southfork in order to obtain a
lightbulb and that upon leaving, he had been detained by Cain.
Cain heard the windows of 158 Southfork being broken and initially
identified respondent as being one of the two boys he observed
emerging from behind 158 Southfork immediately after he had heard
the windows being broken. Cain stated that he saw the juvenilescarrying a hammer and stick. However, at the hearing, Cain, who was
familiar with respondent, identified J.M. and J.E. as the juveniles
he saw emerging from behind 158 Southfork and was adamant that
respondent was not one of the juveniles he detained that day.
Our review of the sufficiency of the evidence is to determine
whether there is substantial evidence to support the adjudication;
however, it is not the duty of this Court to weigh the evidence.
Heil, 145 N.C. App. at 29, 550 S.E.2d at 819. Because we consider
the evidence in the light most favorable to the State, we conclude
that the evidence, although circumstantial, was sufficient to
support a finding that respondent was guilty of willful and wanton
injury to real property, being the breaking of a window of the
mobile home located at 158 Southfork. The testimony of Detective
Newman and Deputy Southern, Cain's initial identification, and
respondent's statement amounted to substantial evidence from which
the finder of fact could find that respondent was responsible for
the damage to 158 Southfork.
Finally, assignments of error in support of which no argument
or authority is stated are deemed abandoned pursuant to N.C.R. App.
P. 28(b)(6). Accordingly, we have not considered respondent's
remaining assignments of error.
The trial court's order for restitution is vacated; the trial
court's adjudication of delinquency of respondent for a violation
of N.C.G.S. § 14-127 is affirmed; and this case is remanded for a
disposition on the remaining charges in accordance with this
opinion. Vacated in part, affirmed in part, and remanded.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1