In the Matter of: P.B., (03-1096) 06/15/2004

Appeal by respondent from juvenile adjudication and disposition orders entered 5 May 2003 by Judge Robert M. Brady in Caldwell County District Court. Heard in the Court of Appeals 24 May 2004.

Attorney General Roy Cooper, by Assistant Attorney General Caroline Farmer, for the State.

Mercedes O. Chut for respondent-appellant.

    MARTIN, Chief Judge.

    Respondent appeals from an order adjudicating him delinquent based upon findings that he committed assault inflicting serious injury in violation of N.C. Gen. Stat. § 14-32.4. On 9 May 2002, a juvenile petition was issued alleging that P.B. willfully and feloniously assaulted another juvenile, J.W., inflicting serious bodily injury. The case was heard at a juvenile hearing on 30 April 2003 with respondent, his grandmother and his attorney present.
    The State's evidence tended to show that on 29 April 2002, P.B., age twelve, his friend J.W., age ten and J.W.'s brother D.W., age twelve, had been playing with their Pokemon cards at P.B.'s house.     At some point, the three boys went to J.W.'s house andtold his mother that J.W. had been shot in the eye with a BB gun. The boys told J.W.'s mother that someone shot J.W. while walking by the house. J.W. was transported by ambulance to Caldwell Memorial Hospital where he told Officer Trice that two boys on bicycles rode by the house and shot him with a BB gun.
    When Officer Trice talked with P.B., he told the officer that the boys were in the backyard shooting a BB gun when J.W. walked in front of the gun. Officer Trice then questioned J.W. again, and this time J.W. told him that the boys were shooting at cans in the backyard when one BB ricocheted off the can, hitting him in the eye. Later in the evening, before being transferred to Baptist Hospital, J.W. told his mother that P.B. actually shot him.
    J.W. testified that after he and D.W. ran in and out of the house several times, P.B. locked them out. J.W. wanted to retrieve his Pokemon cards so he stood on a chair outside P.B.'s window and tried to climb inside. While standing on the chair at the window, P.B. shot him in the eye with a BB gun. J.W. testified he had not told the truth previously because P.B., afraid of getting in trouble, had asked him not to tell and also because he did not want P.B. to get in trouble. D.W.'s testimony corroborated J.W.'s account of the incident. As a result of the shooting, J.W. lost sight in his right eye.
    At the close of the State's evidence, the trial court denied respondent's motion to dismiss. Respondent's only evidence was the recording of an earlier hearing where J.W. and D.W. testified. At the close of all of the evidence respondent moved to dismiss thepetition due to insufficiency of the evidence. The trial court denied the motion. The juvenile court found that P.B. had committed an assault inflicting serious injury; he was adjudicated delinquent and sentenced to twelve months probation. Respondent appeals.

    Respondent argues the trial court erred in failing to dismiss the petition at the close of the evidence due to insufficiency of the evidence to support a conviction. In ruling on a motion to dismiss, “the trial court must consider all the evidence admitted in the light most favorable to the State and decide whether there is substantial evidence of each element of the offense charged and that the defendant committed it.” State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987). Substantial evidence may be direct or circumstantial, State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002), but it must be “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” McLaurin at 146, 357 S.E.2d at 638. “In reviewing a challenge to the sufficiency of evidence, it is not our duty to weigh the evidence, but to determine whether there was substantial evidence to support the adjudication.” In re Heil, 145 N.C. App. 24, 29, 550 S.E.2d 815, 819 (2001).
    Respondent first contends the State did not produce sufficient evidence to support a conclusion that respondent intentionally committed the assault. Assault inflicting serious bodily injury in violation of N.C. Gen. Stat. § 14-32.4 requires proof of twoelements: “(1) an intentional assault on another person (2) resulting in serious bodily injury.” State v. Williams, 154 N.C. App. 176, 180, 571 S.E.2d 619, 622 (2002). Our Supreme Court defined assault as “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967).
    Viewing the evidence in the light most favorable to the State, there is substantial evidence that P.B. intentionally shot J.W. J.W. testified that the shooting was not an accident. He also testified that after he climbed up to the window he saw P.B. holding the gun and then saw him cock it. In addition, D.W. told Detective Rawls that P.B. and J.W. argued because J.W. and D.W were running in and out of the house. D.W then heard P.B. say he was going to get his gun. P.B. admitted to Detective Rawls that after he argued with J.W. and D.W. he went to get his gun. However, he first told Detective Rawls he was going to shoot out the window at some cans in the yard but later claimed he accidently shot J.W. when he popped up at the window.
    “The trial court is not required 'to determine that the evidence excludes every reasonable hypothesis of innocence,' as the test is whether the State has 'offered substantial evidence of each element of the charged offenses sufficient to convince a rational trier of fact beyond a reasonable doubt of defendant's guilt.'” Inre Lucas, 94 N.C. App. 442, 452-453, 380 S.E.2d 563, 569 (1989) (internal quotations omitted). Although the evidence is conflicting, the State offered substantial evidence that P.B. intentionally assaulted J.W. by pointing the gun and shooting at J.W.
    Defendant also argues the State did not produce substantial evidence of serious bodily injury. “'Serious bodily injury' is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.” N.C. Gen. Stat. § 14-32.4 (2003).
    J.W. testified that he lost sight in his right eye in the shooting. Dr. Martin Balts, chief of emergency medicine at Caldwell Memorial Hospital, testified that when he examined J.W. he found an entrance wound in the iris, vitreous fluid protruding from the eye and blood in the interior chamber of the eye. X-rays showed a circular metallic object the size of a BB imbedded in J.W.'s eye. After his transfer, J.W. was hospitalized for two nights at Baptist Hospital. We hold the State produced substantial evidence of the element of serious bodily injury. Therefore, the trial court properly denied defendant's motion to dismiss.

    Next, defendant contends that the trial court erred in failing to dismiss the charges against defendant due to flaws in thejuvenile petition. “[A] petition in a juvenile action serves essentially the same function as an indictment in a felony prosecution and is subject to the same requirement that it aver every element of a criminal offense, with sufficient specificity that the accused is clearly apprised of the conduct for which he is being charged.” In re Griffin, ___ N.C. App. ___, 592 S.E.2d 12, 16 (2004); see N.C. Gen. Stat. § 7B-1802 (2003). A “criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense,” “protect[s] him from subsequent prosecution for the same offense,” and if it “enable[s] the court to know what judgment to pronounce in the event of conviction.” State v. Coker, 312 N.C. 432, 434-435, 323 S.E.2d 343, 346 (1984).
    The juvenile petition issued on 9 May 2002 alleged that “the juvenile unlawfully, willfully and feloniously, did assault [J.W] and inflict serious bodily injury, in that the defendant became blind in his right eye after [P. B.] intentionally shot a B.B. gun at him.” (emphasis added). This statement alleges the elements of assault inflicting serious bodily injury by establishing an intentional assault on another person that resulted in serious bodily injury. Williams at 180, 571 S.E.2d at 622. Although the word defendant should have read victim, the petition sufficiently notified the defendant of the charge against him. This assignment of error is overruled.
    No error.
    Judges TIMMONS-GOODSON and HUNTER concur.
    Report per Rule 30(e).

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