An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-973


Filed: 17 August 2004


T.P .                         Rockingham County
                            No. 02 J 60

    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
    We note that it appears from the hearing transcript that J.M.'s statement to Detective Newman was admitted into evidence with respect to the adjudication of J.M. [T. 43, lines 1-5]

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